In Tepper v. Potter, the Sixth Circuit held that loss of pay couldn’t be considered discipline for an employee’s failure to comply with an employment requirement that conflicted with his religious beliefs.

ACCOMMODATION GRANTED

After a full-time letter carrier became a Messianic Jew observing Sabbath on Saturdays, the postal service accommodated his request to have Saturdays off. The national union agreement required all full-time carriers to work a five-day week, with Sundays off and the other day off to be either fixed or rotating, as determined locally.

After budget constraints caused staffing cuts, accommodating the carrier’s Saturdays-off request became more difficult. Management asked the other carriers to voluntarily work on the Saturdays they were scheduled to have off, assigned carriers to work on Saturdays more often than the rotating schedule provided, and divided the carrier’s route among other carriers, requiring them to cover his route after completing their own.

ACCOMMODATION TERMINATED

At a union meeting for all members working at that facility — which the carrier didn’t attend — the members voted unanimously to recommend terminating the carrier’s religious accommodation. The local postmaster agreed because the accommodation had become a hardship. He cited union pressure and overtime costs attributed to the accommodation of $8,769 in 2000 and $7,015 in 2001.

For Saturday absences, the postmaster encouraged the carrier to use:

1. Vacation days,
2. Annual leave,
3. Leave without pay, and
4. Exchanged days off with other carriers.

Records showed that he hadn’t been required to work on 48% of Saturdays in 2003, 73% in 2004, and at least 50% in 2005, in contrast to having had 92.3% of Saturdays off in 2002.

The carrier sued, alleging that removal of his accommodation violated Title VII. The postal service moved to dismiss, the trial court granted the motion, and the carrier appealed.

THE SIXTH CIRCUIT WEIGHS IN

To establish a prima facie discrimination case, the carrier had to show that he:

1. Held a sincere religious belief that conflicted with an employment requirement,
2. Had informed the employer about the conflicts, and
3. Had been discharged or disciplined for failing to comply with the conflicting employment requirement.

The Sixth Circuit held that the carrier couldn’t satisfy the third prong. He argued that he’d been forced to take days off from work without pay to avoid Saturday work, reducing his annual pay and eventual pension.

But the Sixth Circuit found that more than loss of pay is required to demonstrate discipline or discharge. The Supreme Court has ruled that “the direct effect of unpaid leave is merely a loss of income for the period the employee is not at work; such an exclusion has no direct effect on either employment opportunities or job status.”

So the Sixth Circuit concluded that the carrier had simply not been paid for the time he didn’t work — he hadn’t been disciplined or discharged. Because he couldn’t make out a prima facie case, his religious-accommodation claim failed.

AN UNDUE HARDSHIP?

Note that the postal service didn’t seek to discipline or fire the carrier for failing to adhere to his schedule. Had that been the case, the court would have had to resolve whether the service had to accommodate his religious observance or whether accommodation would have constituted an undue hardship.

But based on the facts here and case law, the Sixth Circuit likely would have found that accommodating the carrier would have been an undue hardship.

SIDEBAR: CONDUCT TRUMPS BELIEFS

In Grossman v. South Shore Public School District, shortly after a public school district hired a guidance counselor on a three-year probationary contract, she threw out literature designed to show students how to use condoms and substituted literature advocating abstinence. She also twice engaged in prayer with students.

When her probation ended, the district elected not to renew her contract. The teacher sued, alleging that the decision was based on hostility to her religious beliefs. The trial court ruled for the school district without a trial.

On appeal, the Seventh Circuit affirmed, noting that the district had failed to renew the plaintiff’s contract because of her conduct — not because of her beliefs. The majority of the district was Christian, like the plaintiff. But the court noted that six teenage pregnancies among the small number of students who had the plaintiff as a counselor was enough for administrators to think it imprudent to retain a guidance counselor who threw out pamphlets instructing students in condom use.

Furthermore, the U.S. Department of Education’s guidelines state that the Constitution’s establishment clause bars teachers “from encouraging or discouraging prayer and from actively participating in such activity with students.”

Thus, the Seventh Circuit held that teachers and other public school employees have no right to make the promotion of religion part of their job descriptions.