SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT

The Equal Employment Opportunity Commission alleges that North Memorial Health Care violated the antiretaliation provision of Title VII when it withdrew an offer of employment from charging party Emily Sure-Ondara after she requested a religious accommodation. The district court ruled that the Commission could not establish a prima facie case of retaliation because requesting an accommodation is not “protected activity” under the plain language of the statute. The Commission argues on appeal that this ruling should be reversed: Sure-Ondara engaged in protected activity when she made a clear request to be exempt from working the Friday night shift because working that shift conflicted with her beliefs as a Seventh-day Adventist.

The Commission requests oral argument of twenty minutes to explore the important issue of how interpreting a request for a religious accommodation as protected activity can be squared with the language and statutory purpose of Title VII.

TABLE OF CONTENTS. ii

TABLE OF AUTHORITIES. iv

STATEMENT OF JURISDICTION.. 1

STATEMENT OF THE ISSUE. 1

STATEMENT OF THE CASE. 2

A. Course of Proceedings. 2

B. Statement of the Facts. 3

C. District Court’s Decision. 11

STANDARD OF REVIEW... 15

SUMMARY OF ARGUMENT. 15

ARGUMENT. 18

Requests for Religious Accommodations are Protected Activity Under Title VII’s Antiretaliation Provision. 18

A. Sure-Ondara’s request for accommodation was implicit opposition to working a schedule that conflicted with her religious beliefs. 18

B. Title VII’s broader statutory scheme strongly favors treating requests for religious accommodation as protected activity. 35

CONCLUSION.. 39

CERTIFICATE OF COMPLIANCE. 41

CERTIFICATE OF SERVICE. 42

TABLE OF AUTHORITIES

A.C. ex rel. J.C. v. Shelby Cty. Bd. of Educ., 711 F.3d 687 (6th Cir. 2013)........ 30

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)......................................... 39

Barker v. Mo. Dep’t of Corr., 513 F.3d 831 (8th Cir. 2008)............................... 19

Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015).................. 25

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).................. 22, 39

Cassimy v. Bd. of Educ. of Rockford Pub. Sch., 461 F.3d 932

(7th Cir. 2006)........................................................................................... 31

Cook v. Chrysler Corp., 981 F.2d 336 (8th Cir. 1992)....................................... 36

Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39 (1st Cir. 2010)............ 26

Coons v. Sec’y of U.S. Dep't of Treasury, 383 F.3d 879 (9th Cir. 2004)............ 31

Cossette v. Minn. Power & Light, 188 F.3d 964 (8th Cir.1999)........................ 28

Crawford v. Metro. Gov’t of Nashville & Davidson Cty.,

555 U.S. 271 (2009).......................................................................... 23-24, 39

E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015)................ 37

E.E.O.C. v. Commercial Office Prods. Co., 486 U.S. 107 (1988)........................ 37

E.E.O.C. v. New Breed Logistics, 783 F.3d 1057 (6th Cir. 2015)....................... 23

E.E.O.C. v. Prod. Fabricators, Inc., 763 F.3d 963 (8th Cir. 2014)................ 29, 33

Frazier-White v. Gee, 818 F.3d 1249 (11th Cir. 2016)...................................... 30

Haulbrook v. Michelin N. Am., 252 F.3d 696 (4th Cir. 2001)........................... 31

Heisler v. Metro. Council, 339 F.3d 622 (8th Cir. 2003)........................ 26, 28, 33

Hill v. Walker, 737 F.3d 1209 (8th Cir. 2013)............................................. 29, 33

Jenkins v. N.Y. C. Trans. Auth., 646 F. Supp. 2d 464 (S.D.N.Y. 2009)............ 14

Kasten v. Saint–Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011)...... 24

Kirkeberg v. Canadian Pac. Ry., 619 F.3d 898 (8th Cir. 2010).......... 28, 29-30, 33

Lewis v. N.Y.C. Transit Auth., 12 F. Supp. 3d 418 (E.D.N.Y. 2014)................ 25

Lors v. Dean, 746 F.3d 857 (8th Cir. 2014)...................................................... 28

Nichols v. Ill. Dep’t of Transp., 152 F. Supp. 3d 1106 (N.D. Ill. 2016)............. 14

Murphy v. City of Aventura, 383 F. App’x 915 (11th Cir. 2010)..................... 27

Ollis v. HearthStone Homes, 495 F.3d 570 (8th Cir. 2007)......... 15, 19-21, 24, 37

Payne v. Salazar, 899 F. Supp. 2d 42 (D.D.C. 2012)........................................ 34

Perlman v. Mayor and City Council of Balt., No. 15-1620,

2016 WL 640772 (D. Md. Feb. 18, 2016).................................................... 34

Pope v. ESA Servs., Inc., 406 F.3d 1001 (8th Cir. 2005)................................... 19

Porter v. City of Chi., 700 F.3d 944 (7th Cir. 2012)..............................................

Robinson v. Shell Oil Co., 519 U.S. 337 (1997)...................................... 22, 35-36

St. Juste v. Metro Plus Health Plan, 8 F. Supp. 3d 287 (E.D.N.Y. 2014).......... 34

Selenke v. Med. Imaging of Colo., 248 F.3d 1249 (10th Cir. 2001).................... 32

Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183 (3d Cir. 2003)........... 28, 38

Soileau v. Guilford of Me., 105 F.3d 12 (1st Cir. 1997)..................................... 38

Solomon v. Vilsack, 763 F.3d 1 (D.C. Cir. 2014)............................................... 30

Sturgill v. United Parcel Serv., Inc., 512 F.3d 1024 (8th Cir. 2008).................. 36

Tabatchnik v. Cont’l Airlines, 262 F. App’x 674 (5th Cir. 2008)...................... 31

Thompson v. N. Am. Stainless, LP, 131 S. Ct. 863 (2011)................................. 22

United States v. Am. Trucking Ass’ns, Inc., 310 U.S. 534 (1940)...................... 38

United States v. Ron Pair Enters., Inc., 489 U.S. 235 (1989)............................. 36

Weixel v. Bd. of Educ of City of N.Y.., 287 F.3d 138 (2d Cir. 2002).................. 31

Wierman v. Casey’s Gen. Stores, 638 F.3d 993 (8th Cir. 2011)......................... 15

Withers v. Johnson, 763 F.3d 998 (8th Cir. 2014)............................................. 30

Statutes

28 U.S.C. § 1291................................................................................................ 1

28 U.S.C. § 1331................................................................................................ 1

28 U.S.C. § 1345................................................................................................ 1

Americans with Disabilities Act

42 U.S.C. § 12203(a)............................................................................. 27, 30

42 U.S.C. § 12203(b)................................................................................... 33

Title VII

42 U.S.C. § 2000e et seq............................................................................... 2

42 U.S.C. § 2000e-2(a)(1)........................................................................... 36

42 U.S.C. § 2000e-3(a)................................................................................ 18

42 U.S.C. § 2000e(j).................................................................................... 36

Legislative and Other Materials

EEOC Enforcement Guidance on Retaliation and Related Issues,

No. 915.004 (August 25, 2016)............................................................. 26, 32

EEOC Compliance Manual Section 12: Religious Discrimination,

No. 915.003 § 12-V.B (July 22, 2008)........................................................ 32

STATEMENT OF JURISDICTION

This retaliation action was authorized and initiated pursuant to Title VII, 42 U.S.C. §§ 2000e-5. The district court had jurisdiction under 28 U.S.C. § 1331 (case arising under laws of the United States), and 28 U.S.C. § 1345 (agency of the United States as a plaintiff).

On July 6, 2017, the district court granted North Memorial’s motion for summary judgment and entered final judgment. Order at 1. Pursuant to Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure, the EEOC filed a timely notice of appeal on August 30, 2017. Joint Appendix (JA)-436. This Court has jurisdiction under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUE

Whether charging party Emily Sure-Ondara’s request to be exempt from working Friday nights because working during her Sabbath conflicted with her religious beliefs was protected activity under Title VII’s antiretaliation provision.

Crawford v. Metro. Gov’t of Nashville & Davidson Cty., 555 U.S. 271 (2009)

Robinson v. Shell Oil Co., 519 U.S. 337 (1997)

Ollis v. HearthStone Homes, 495 F.3d 570 (8th Cir. 2007)

Heisler v. Metro. Council, 339 F.3d 622 (8th Cir. 2003)

STATEMENT OF THE CASE

A. Course of Proceedings

This is an enforcement action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. On September 16, 2015, the EEOC filed suit against North Memorial Health Care alleging that the hospital violated Title VII when it withdrew an offer of employment to Emily Sure-Ondara in retaliation for her request for a religious accommodation. JA-5, 8 (Complaint at 1, 4). North Memorial moved for summary judgment on February 28, 2017, arguing that a request for religious accommodation is not protected activity under Title VII and, specifically, that Sure-Ondara’s request for accommodation was not protected activity because she requested Friday nights off so she would not be too tired for church, and that request was not reasonable. R.21 at 16-23, 24-28. North Memorial also argued that the EEOC could not establish that North Memorial’s justification for withdrawing Sure-Ondara’s offer—even after she expressed her willingness to work on Friday nights—was a pretext for discrimination because it was legitimately concerned that she would not come to work on Friday nights. Id. at 29-33. The district court granted the hospital’s motion on July 6, 2017. Order at 12. This appeal followed.

B. Statement of the Facts

Charging party Emily Sure-Ondara is a Seventh-day Adventist who observes a Sabbath occurring from sundown Friday to sundown Saturday. JA-218, 219, 271 (Sure-Ondara Dep. 44, 46-47, 255). During the Sabbath, Seventh-day Adventists do not work; they spend the time attending worship services and being with family. JA-271 (Sure-Ondara Dep. 255-56).

Sure-Ondara applied for a registered nurse position in North Memorial’s Advanced Beginner program and was interviewed at an open house event in early November 2013. JA-245, 266 (Sure-Ondara Dep. 152, 234-35); JA-288, 289 (Wombacher Dep. 26, 28-29). The Advanced Beginner program is “for nurses who had been nurses in other fields . . . to reorient them to the hospital environment.” JA-245 (Sure-Ondara Dep. 152). After the open house, human resources generalist associate Lisa Minshull called Sure-Ondara to extend a conditional offer of employment for a nursing position in the program, which she accepted. JA-246 (Sure-Ondara Dep. 153); JA-348, 349 (Minshull Dep. 16-18).

On November 11, 2013, North Memorial officially offered Sure-Ondara a registered nurse position in its Collaborative Acute Care for the Elderly unit working eight-hour night shifts from 11 p.m. to 7 a.m., Monday through Friday, including every other weekend, which ran from Friday night to Monday morning. JA-141 (11/11/13 Wombacher letter); see also JA-145 (11/20/13 Wombacher letter); JA-320 (Levens Dep. 29-30). She was to begin orientation on November 25, 2013. JA-141 (11/11/13 Wombacher letter).

On November 13, 2013, Sure-Ondara informed a North Memorial human resources staff member that, “I need to be accommodated because of my religious beliefs . . . I need Friday nights off for Sabbath rest. I don’t work Fridays.” JA-247, 248 (Sure-Ondara Dep. 159, 161); see also JA-350 (Minshull Dep. 21-22) (Sure-Ondara “shared that she needed sundown Friday to Saturday due to the Sabbath” and that she was a Seventh-day Adventist and could not work Friday nights); JA-143 (Clements email). After obtaining more details about her scheduling request, Minshull told Sure-Ondara that she could “either take the job as is or they give it to someone else.” JA-248, 249, 252, 254 (Sure-Ondara Dep. 161, 168, 179, 186). Sure-Ondara responded that she would take the job and, “I will make it work.” JA-248 (Sure-Ondara Dep. 162); JA-297 (Wombacher Dep. 61-62); JA-350 (Minshull Dep. 22).

Minshull called Sure-Ondara a second time on November 14 to clarify what she meant by “make it work.” JA-248 (Sure-Ondara Dep. 162); JA-297 (Wombacher Dep. 61-62); JA-351 (Minshull Dep. 26). Sure-Ondara told Minshull, “I’ll find my own replacement or come in anyway if I don’t have a replacement, if it’s an emergency.” JA-248 (Sure-Ondara Dep. 162). According to Sure-Ondara, she “meant on my side if it’s an emergency, if I cannot find my own replacement then I have to go in as an emergency. I’m justifying my reason for going in.” JA-248 (Sure-Ondara Dep. 162). She explained she used the term “emergency” to mean, “I have no other option.” JA-252 (Sure-Ondara Dep. 183). She testified that she told Minshull repeatedly that she would take the job without the accommodation. JA-249, 253 (Sure-Ondara Dep. 167, 181-82); JA-146 (Sure-Ondara 11/20/13 email).

Sure-Ondara testified that she could come in on Friday nights in good conscience after “consulting with God on . . . how to go about Sabbath issues” and that she “had begun to figure out some options in case the employer does not allow me to take Sabbaths off, which included perhaps I could work and donate the money to the church.” JA-250 (Sure-Ondara Dep. 169-70).

Both Minshull and Nicholas Wombacher, another human resources generalist, testified that they interpreted “in an emergency” to mean “she would come in in the case of a life or death emergency.” JA-297 (Wombacher Dep. 62); JA-351 (Minshull Dep. 26). Both also testified that they did not believe that Sure-Ondara would show up for her Friday night shift. JA-350 (Minshull Dep. 24); JA-302 (Wombacher Dep. 82). Wombacher and Minshull, along with other human resources supervisors, determined that Sure-Ondara’s explanation of “make it work” “did not work for us, and that we could not accommodate that.” JA-297 (Wombacher Dep. 63-64). They made a collective decision to rescind Sure-Ondara’s offer. JA-388 (Conklin Dep. 61); JA-297 (Wombacher Dep. 55-56).

In a hand-delivered letter to Sure-Ondara dated November 20, 2013, Wombacher stated, “you are unable to work from sundown Friday through sundown Saturday for religious reasons” and “you indicated that you are unable to work the Friday evening shift because you felt you would be too tired to attend church services that begin at 8 a.m. on Saturday morning.” JA-145 (Wombacher 11/20/13 letter). The letter adds, “While we respect your religious commitment, we are unable to grant the accommodation you requested under the circumstances.” Id. Wombacher invited Sure-Ondara to contact him if she would like to work with him to identify other positions. Id.

Sure-Ondara testified, “I was confused. I didn’t understand why the job was being taken away from me when I made it clear. I stated multiple times that I would be able to work the job with or without the accommodation . . . My preference would be to be accommodated but if not, I wouldn’t like to lose the job.” JA-249 (Sure-Ondara Dep. 167); see also JA-251 (Sure-Ondara Dep. 175). She called Wombacher to tell him she “did not decline the job” and she “really wanted to work with or without accommodation.” JA-251 (Sure-Ondara Dep. 175). Wombacher told her “the position was no longer an option.” Id.

Sure-Ondara emailed Wombacher that she was “pleased to learn . . . that you respect my religious commitment, and saddened by the fact that you are unable to grant the accommodation requested under the circumstances.” JA-146 (Sure-Ondara 11/20/13 email). “I am ready and willing (and have already accepted) the position offered with or without religious accommodation.” Id. She added that, after Minshull told her she could accept the position without accommodation or they would give it to someone else, she believed that “the case was settled given I stated my acceptance of the position without the accommodation for my religious beliefs.” Id. Sure-Ondara stressed to Wombacher that during the November 14 phone conversation with Minshull, she had told Minshull that “Friday sundown to Saturday sundown was the accommodation requested for Sabbath observance.” Id. She also told Wombacher once again that when she said she “would make it work,” she meant she would “try to find my own replacement, and if not able to find one, that meant that I will work the shift anyway.” Id. She added, “My biggest wonder however is why a position that I have clearly stated that I will be able to work despite your inability to grant my request should be taken away from me.” Id.

Wombacher responded to Sure-Ondara that her email “does not resolve the issue as your written communication and your verbal statements are still conflicting.” JA-147 (Wombacher 11/21/13 email). Wombacher pointed out that Sure-Ondara was told during the interview that the job required working every other weekend. Id. “The confusion we have is that after we offered you the position, you accepted, and then several days later you stated you could not work Friday nights.” Id. Wombacher noted that Sure-Ondara had said, “I can make it work,” meaning finding someone else to work the Friday night shift or “come in if it was an emergency.” Id. Wombacher concluded, “although you state you are willing to work without accommodations, the conflicting statements you have made regarding making it work lead us to believe otherwise.” Id.

Sure-Ondara testified there was no conflict between her oral and written statements, but she did not want to be “overly aggressive” or “create bad blood between us” and risk losing any potential job with the hospital. JA-256 (Sure-Ondara Dep. 193-94). She figured that “I’d better just drop it because the job that I had initially applied for is already gone, and now we are working on other positions.” JA-256 (Sure-Ondara Dep. 194).

Human resources director Renee Conklin testified that had Sure-Ondara “been employed, had she started and then came on board and said I need a religious accommodation, there would have been no doubt in my mind . . . [t]hat we would have done everything we could to accommodate.” JA-385 (Conklin Dep. 49-50). But because Sure-Ondara had applied for a job with shifts that conflicted with her religious beliefs, Conklin explained, the hospital did not attempt to accommodate her. JA-385 (Conklin Dep. 50). Conklin testified that she asked her staff to look for other positions that did not require the hours conflicting with Sure-Ondara’s religious beliefs. JA-385, 386 (Conklin Dep. 52, 53). Wombacher testified that he considered Sure-Ondara ineligible for all union nursing positions and jobs that required weekend shifts, even though Sure-Ondara told him she was willing to work every other weekend as the job required. JA-303 (Wombacher Dep. 86-87); see also JA-304 (Wombacher Dep. 89) (“Based on previous statements, we didn’t feel that weekends would work for Emily.”).

The Commission filed suit on September 16, 2015, alleging North Memorial “withdrew a job offer made to Sure-Ondara after she requested a religious accommodation in retaliation for her request and in violation of Title VII.” JA-5 (Complaint at 1).

C. District Court’s Decision

The district court granted North Memorial’s motion for summary judgment. The court agreed with North Memorial that a request for religious accommodation is not protected activity. Order at 1. The court noted that no court in the Eighth Circuit had decided whether requesting a religious accommodation is a protected activity under Title VII. Id. at 6. The court stated that it was required to interpret Title VII according to its plain language. Id. The court said an employee engages in protected activity either when she: (1) “oppos[es] any practice made an unlawful employment practice by [Title VII]” or [2] “ma[kes] a charge, testifies], assist[s], or participat[es] in any manner in an investigation, proceeding, or hearing under [Title VII].” Id.

The court held that Sure-Ondara had not “opposed” any practice because there was no evidence that she “believed that North Memorial’s denial of her religious accommodation request was unlawful. And even if she did, the court determined that she did not communicate that belief to North Memorial.” Id. at 7. “In other words, merely requesting a religious accommodation is not the same as opposing the allegedly unlawful denial of a religious accommodation.” Id. at 7-8 (citing Perlman v. Mayor and City Council of Baltimore, No. SAG-15-1620, 2016 WL 640772, at *6 (D. Md. Feb. 18, 2016); St. Juste v. Metro Plus Health Plan, 8 F. Supp. 3d 287, 323 (E.D.N.Y. 2014); Payne v. Salazar, 899 F. Supp. 2d 42, 52 (D.D.C. 2012)). Additionally, the court pointed out that Sure-Ondara had not made any charge, testified, or assisted in any investigation, proceeding or hearing prior to the revocation of her offer given that “no such proceedings had commenced prior to or at the time of her termination.” Id. at 9. Thus, “the court is unable to fit Sure-Ondara’s accommodation request within the plain language of the statute.” Id.

The court rejected the Commission’s argument that it should follow Heisler v. Metropolitan Council, 339 F.3d 622 (8th Cir. 2003), which held that requesting an accommodation was protected activity under the Americans with Disabilities Act (“ADA”), because of the “Eighth Circuit’s recent questioning of Heisler due to its failure to apply the plain language of the statute.” Id. at 9. The court noted that the Eighth Circuit followed Heisler in Kirkeberg v. Canadian Pacific Railway, 619 F.3d 898, 908 (8th Cir. 2010), and in Hill v. Walker, 737 F.3d 1209, 1219 (8th Cir. 2013), but because Kirkeberg noted the lack of fit between requesting accommodation and the plain language of the statute, and Hill assumed “for the sake of analysis” that requesting accommodation was protected, the court was “unpersuaded.” Order at 9-10. Additionally, the court pointed out that differences between the ADA and Title VII “weigh against applying ADA precedent to a Title VII claim,” including the “broader range of activity” protected by the ADA through the interference provision contained in the ADA but not Title VII. Order at 10. “If Congress wishes to extend the same protection to activity under Title VII, it is free to do so, but it is not appropriate for the court to manipulate the plain language of the statue to dictate policy outcomes.” Id.

The district court noted that the courts that have held requesting accommodation is a protected activity under Title VII did so when the parties did not dispute the issue and/or without analyzing Title VII’s language. Id. at 11 (citing Porter v. City of Chi., 700 F.3d 944 (7th Cir. 2012), Nichols v. Ill. Dep’t of Transp., 152 F. Supp. 2d 1106 (N.D. Ill. 2016), and Jenkins v. N.Y.C. Trans. Auth., 646 F. Supp. 2d 464 (S.D.N.Y. 2009)). The court also pointed out that Lewis v. New York City Transit Authority, 12 F. Supp. 3d 418, 449 (E.D.N.Y. 2014), and St. Juste v. Metro Plus Health Plan, 8 F. Supp. 3d 287, 323 (E.D.N.Y. 2014), were inapposite because in those cases, the plaintiffs’ activity could be characterized as a complaint and within the opposition clause of the antiretaliation provision. Id. at 11-12 n.3. The court said in a footnote that “the EEOC’s guidelines, which advise that requesting an accommodation is protected activity under Title VII, are unpersuasive.” Id. at 11, n.2.

STANDARD OF REVIEW

This Court reviews a district court’s grant of summary judgment de novo. Wierman v. Casey’s Gen. Stores, 638 F.3d 984, 993 (8th Cir. 2011).

SUMMARY OF ARGUMENT

The district court’s holding that Sure-Ondara did not engage in protected activity under Title VII’s antiretaliation provision when she requested, for religious reasons, to be excused from working Friday nights is erroneous. It conflicts not only with the precedent of this and other courts setting out standards for establishing a claim of retaliation in the accommodation context, but with the broad coverage courts, including the Supreme Court, have accorded retaliation claims under Title VII.

In Ollis v. HearthStone Homes, 495 F.3d 570, 576 (8th Cir. 2007), for example, this Court affirmed a jury verdict for the plaintiff on his retaliation claim where he had asked to be excused from employer-sponsored religious sessions and was later fired. Just as Ollis showed opposition to his employer’s requirement that employees attend those sessions by asking to be excused because attending the sessions conflicted with his religious beliefs, Sure-Ondara’s request for an exception to the Friday night assigned schedule because it conflicted with her religious beliefs demonstrated opposition to North Memorial’s requirement that she work on her Sabbath. This Court’s analysis in Ollis applies equally to this case.

Further, this Court should follow the extensive case law under the Americans with Disabilities Act (“ADA”) recognizing that requests for accommodation constitute protected activity because the language in both antiretaliation provisions is the same and courts use the same evidentiary framework for Title VII and ADA retaliation cases. This Court and the other courts of appeal have all recognized that a request for accommodation under the ADA is protected activity. That the ADA contains an “interference” provision not found in Title VII is immaterial to this analysis. The Commission’s claim here does not invoke this provision and, importantly, none of the ADA cases stating that requests for accommodation are protected activity in a retaliation action rely on the interference provision. Hence, the district court’s invocation of that provision to support its analysis was error.

Finally, Title VII’s broad statutory scheme strongly favors interpreting requests for religious accommodation as protected activity. The Supreme Court in Robinson v. Shell Oil explained that in determining whether statutory language has a plain and unambiguous meaning regarding the dispute at issue, courts must look at the language itself as well as at the specific context in which the language is used and the broader context of the statute. Title VII requires employers to reasonably accommodate the religious beliefs or practices of their employees unless doing so would cause the employers to suffer undue hardship. Interpreting requests for reasonable accommodation as outside the scope of protected activity would lead to the anomalous result where an individual asserting a right protected by the statute could be retaliated against with impunity.

Consequently, failing to regard requests for accommodation as protected activity would have a chilling effect on the assertion of Title VII’s right to religious accommodation and that right would be severely undermined. Knowing she could suffer a penalty for requesting an accommodation, the prudent individual very likely might opt not to make the request. This would undercut the intent of the statute to provide employees both the ability to seek to engage in religious observance or practice and to be protected from retaliation for asserting that right.

ARGUMENT

Requests for Religious Accommodations are Protected Activity Under Title VII’s Antiretaliation Provision.

A. Sure-Ondara’s request for accommodation constituted implicit opposition to working a schedule that conflicted with her religious beliefs.

Title VII’s antiretaliation provision makes it unlawful for an employer to ”discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, a plaintiff must produce evidence showing that she (1) engaged in a statutorily protected activity; (2) was subject to an adverse action by her employer; and (3) there was a causal connection between the adverse action and the protected activity. Pope v. ESA Servs., Inc., 406 F.3d 1001, 1010 (8th Cir. 2005). Here the Commission alleged that Sure-Ondara engaged in “protected activity” under the first clause of the antiretaliation provision, which protects individuals who oppose conduct made unlawful by Title VII—or conduct the individual reasonably believes is unlawful. Barker v. Mo. Dep’t of Corr., 513 F.3d 831, 834 (8th Cir. 2008) (“We interpret this provision to encompass actions that oppose employment actions that are not unlawful, ‘as long as the employee acted in a good faith, objectively reasonable belief that the practices were unlawful.’”). The district court’s contrary conclusion—that a request for a religious accommodation is not protected activity under Title VII—is erroneous and should be reversed.

This case should be analyzed under this Court’s rationale in Ollis v. HearthStone Homes, 495 F.3d 570 (8th Cir. 2007), where this Court determined that an employee’s request for religious accommodation was protected activity under Title VII. In Ollis, the company president encouraged employees to attend Mind Body Energy (MBE) sessions to “cleanse the negative energy” and enhance their work performance. Ollis, 495 F.3d at 573. The human resources department kept a record of employee MBE appointments and attendance. Id. Ollis, who is Christian, told two supervisors and the head of human resources that the MBE sessions made him uncomfortable and conflicted with his religious beliefs. Id. Ollis followed a supervisor’s suggestion to make MBE appointments but then cancel them. He was fired for “poor leadership and judgment.” He sued for religious discrimination and retaliatory discharge and won a jury verdict. Id. at 574. Ollis offered evidence at trial that (1) the MBE sessions conflicted with his religious beliefs; (2) he expressed disagreement regarding the MBE concept to his employer by requesting to be excused; (3) HearthStone arguably required attendance at the MBE meetings; and (4) HearthStone kept track of Ollis’s attendance at the sessions. Id. at 576. This Court affirmed the jury verdict and held, “[a] jury reasonably could have concluded Ollis engaged in a statutorily protected activity, that is, Ollis complained to HearthStone about a conflict between the subject matter at the MBE sessions and his religious beliefs.” Id.

Similarly, in requesting accommodation, like Ollis, Sure-Ondara necessarily was complaining that requiring her to work Friday shifts conflicted with her religious beliefs. In both this case and Ollis, the employee/individual asked to be excused from the employer’s work requirement for religious reasons—a Friday night shift in Sure-Ondara’s case and the MBE sessions in Ollis’s. The schedule to which Sure-Ondara was assigned presented a potential violation of Title VII, as applied to her. And her request for accommodation constituted resistance to the application of a scheduling requirement that would potentially violate the law in her situation because of her religious beliefs. Thus, consistent with Ollis, and with the plain language of the statute, this Court should conclude that Sure-Ondara’s request for a religious exemption to her assigned schedule is protected activity.

The district court interpreted Sure-Ondara’s request—and the antiretaliation provision – more narrowly, ruling that her request was insufficient to bring her within the protection of Title VII. This narrow reading of the provision is at odds with Supreme Court decisions that interpret Title VII’s antiretaliation provision broadly to protect employees who are seeking to assert rights afforded by the statute and to remedy potential discrimination. See, e.g., Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006) (holding the harm made unlawful by Title VII is not limited to only those actions related to employment or occurring in the workplace, reasoning that “such a limited construction” would not be consistent with the statute’s purpose); Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (holding that antiretaliation provision includes former employees, which is consistent with Title VII’s purpose to “[m]aintain unfettered access to statutory remedial mechanisms”); Thompson v. N. Am. Stainless, LP, 131 S. Ct. 863, 868 (2011) (in holding third party may bring a retaliation claim under Title VII, Court noted that “we adopted a broad standard in Burlington because Title VII’s antiretaliation provision is worded broadly”).

Likewise, the opposition clause prong of the antiretaliation provision is written in broad terms that give effect to its important remedial objectives. See E.E.O.C. v. New Breed Logistics, 783 F.3d 1057, 1067 (6th Cir. 2015) (opposition clause has an “expansive definition”). The Supreme Court made this point in Crawford v. Metropolitan Government of Nashville & Davidson County, 555 U.S. 271, 280 (2009). There, the Court held that Crawford’s expression of disapproval of a supervisor’s behavior during an internal sexual harassment investigation was protected opposition. The Court examined the ordinary meaning of the term “oppose,” which Title VII does not define, explaining that “oppose” includes “to contend against; to confront; resist; withstand.” Id. at 276. The Court also recognized that “oppose” is “to be hostile or adverse to, as in opinion.” Id. The Court acknowledged that these definitions “entail varying expenditures of energy,” but did not articulate a minimum threshold for what expression or conduct qualifies as “opposition.” Id. The Court did, however, reject the Sixth Circuit’s holding that the opposition clause demanded “‘active, consistent, “opposing” activities to warrant . . . protection against retaliation.’” Id. at 277. The Court said, “though these requirements obviously exemplify opposition as commonly understood, they are not limits of it.” Id. at 277.

By clearly expressing her need for an exception to her assigned schedule for religious reasons, Sure-Ondara not only placed North Memorial on notice of her need for an accommodation, but also implicitly asserted that she was legally entitled to such an exception. This constituted opposition to the requirement that she work on her Sabbath. See Crawford, 555 U.S. at 280 (plaintiff’s answer to questions about supervisor’s inappropriate behavior showed disapproval of harassing behavior and thus met ordinary definition of opposition); Ollis, 495 F.3d at 576 (request to be excused from employer-sponsored religious sessions showed disagreement with employer requiring attendance); cf. Kasten v. Saint–Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1334 (2011) (in order to qualify as protected activity for purposes of a retaliation claim under the Fair Labor Standards Act, an employee’s oral “complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.”); see also Lewis v. N.Y.C. Transit Auth., 12 F. Supp. 3d 418, 449 (E.D.N.Y. 2014) (Muslim bus driver who wore a khimar and explained to her supervisor that she could not remove or cover it because it would conflict with her religious beliefs and therefore needed an exception to the employer’s headgear requirement, engaged in protected activity, which is any activity taken to “protest or oppose” unlawful employment practices under Title VII and “[b]oth protesting a discriminatory employment practice and requesting an accommodation constitute protected activities.”).

Additionally, because statements made or actions taken to prevent discrimination are forms of opposition or resistance, Sure-Ondara’s request for accommodation provided North Memorial the opportunity to comply with Title VII’s religious accommodation requirement. Cf. Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 282 (4th Cir. 2015) (explaining that a “Title VII violation” one opposes “may be complete, or it may be in progress,” because of “the hope and expectation that employees will report harassment early, before it rises to the level of a hostile environment”).

A jury could find that because a schedule requiring Sure-Ondara to work on some Friday nights conflicted with her religious beliefs, she could reasonably believe that North Memorial should accommodate her beliefs by modifying the shift, and that denying the accommodation she sought would be “an employment practice made unlawful by Title VII.” See, e.g., Heisler v. Metro. Council, 339 F.3d 622, 632 (8th Cir. 2003) (employees are protected from retaliation under the Americans with Disabilities Act even where their impairments do not meet the ADA’s definition of disability as long as they had a good faith belief that the requested accommodation was appropriate); Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 48 (1st Cir. 2010) (“[U]nder the opposition clause, . . . the plaintiff need not show that the conditions he or she opposed ‘actually amounted to a violation of Title VII.’” (internal citation omitted)); EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (August 25, 2016) (“EEOC Enforcement Guidance on Retaliation”), available at www.eeoc.gov/laws/guidance/retaliation-guidance.cfm (“The opposition clause applies if an individual explicitly or implicitly communicates his or her belief that the matter complained of is, or could become, harassment or other discrimination.”); Murphy v. City of Aventura, 383 F. App’x 915, 918 (11th Cir. 2010) (“A complaint about an employment practice constitutes protected opposition only if the individual explicitly or implicitly communicates a belief that the practice constitutes unlawful employment discrimination.”).

This Court should follow the ADA jurisprudence recognizing requests for reasonable accommodation are protected activity because the language of the antiretaliation provisions on both statutes is the same. Like Title VII, the antiretaliation provision of the ADA provides that “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a). ADA retaliation claims are analyzed using the same evidentiary framework as Title VII. See Lors v. Dean, 746 F.3d 857, 865 (8th Cir. 2014) (holding that courts analyze retaliation claims under the same legal framework whether under Title VII, the ADA or the ADEA); Cossette v. Minn. Power & Light, 188 F.3d 964, 972 (8th Cir. 1999) (“Retaliation claims under the ADA are analyzed identically to those brought under Title VII.”).

This Court has repeatedly recognized that “[r]equesting an accommodation is a protected activity” under the ADA. Heisler, 339 F.3d at 632 (citing Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 191 (3d Cir. 2003)). In Shellenberger, relied upon by this Court in Heisler, the Third Circuit held that both the plaintiff’s filing of an EEOC charge and requesting accommodation were protected activity under the ADA because “[t]he right to request accommodation in good faith is no less a guarantee under the ADA than the right to file a complaint with the EEOC.” 318 F.3d at 191. Other ADA retaliation cases in this circuit have followed Heisler and held or assumed that requesting accommodation is protected activity. Kirkeberg v. Canadian Pac. Ry., 619 F.3d 898, 908 (8th Cir. 2010) (describing this Court’s decision in Heisler as articulating a “broad view” of protected activity but holding that the plaintiff’s conduct did not amount to a request for reasonable accommodation, and thus was not protected activity); Hill v. Walker, 737 F.3d 1209, 1219 (8th Cir. 2013) (“We assume for the sake of analysis, in light of Heisler, that Hill’s act of requesting accommodation, including her letter requesting that Walker ‘respect‘ her leave time, was protected activity under the ADA.”); see also E.E.O.C. v. Prod. Fabricators, Inc., 763 F.3d 963, 972 (8th Cir. 2014) (because charging party’s complaints regarding his impairment were not requests for an accommodation, he did not engage in a statutorily protected activity) (citing Kirkeberg, 619 F.3d at 907-08).

This Court has held that requesting accommodation is protected activity despite its acknowledgement that requesting accommodation does not fit perfectly into either clause of the ADA’s antiretaliation provision. The Kirkeberg Court reasoned as follows:

One might wonder how the theory behind Kirkeberg's retaliation claim can be squared with the text of the statute. An employee who asserts a right under 42 U.S.C. § 12112(b)(5)(A) to obtain reasonable accommodation for an alleged disability has not “opposed any act or practice made unlawful” by the ADA. Nor has he “testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under the ADA. . . . Although “[i]t is questionable” whether an employee who merely requests a reasonable accommodation “fits within the literal language of the statute,” Soileau, 105 F.3d at 16, we are bound by Heisler to conclude that making such a request is protected activity for purposes of 42 U.S.C. § 12203(a).

619 F.3d at 907; see also Withers v. Johnson, 763 F.3d 998, 1004 (8th Cir. 2014) (“This court has held that a person who is terminated after making a goodfaith request for an accommodation may pursue a retaliation claim under the ADA and the Rehabilitation Act, although the textual basis for these claims is unclear.”).

The other circuits have all either explicitly held, recognized, or assumed that a request for accommodation under the ADA is protected activity. See Frazier-White v. Gee, 818 F.3d 1249, 1258 (11th Cir. 2016) (“The first element [of the prima facie claim of retaliation] may be met by a request for a reasonable accommodation.”); Solomon v. Vilsack, 763 F.3d 1, 16 (D.C. Cir. 2014) (“[T]he act of requesting in good faith a reasonable accommodation is a protected activity under 42 U.S.C. §12203.”); A.C. ex rel. J.C. v. Shelby Cty. Bd. of Educ., 711 F.3d 687, 697 (6th Cir. 2013) (parties did not dispute that requests for accommodation for elementary school student were protected activity; noting that “this circuit and most others agree that requests for accommodation are protected acts”); Tabatchnik v. Cont’l Airlines, 262 F. App’x 674, 676 (5th Cir. 2008) (“It is undisputed that making a request for a reasonable accommodation under the ADA may constitute engaging in protected activity.”); Cassimy v. Bd. of Educ. of Rockford Pub. Sch., 461 F.3d 932, 938 (7th Cir. 2006) (“[E]veryone agrees that [plaintiff] engaged in statutorily protected [activity] when he requested an accommodation.”); Coons v. Sec’y of U.S. Dep't of Treasury, 383 F.3d 879, 887 (9th Cir. 2004) (“Coons was engaged in a protected activity when he requested that the IRS make reasonable accommodations for his alleged disability.”); Weixel v. Bd. of Educ. of City of N.Y., 287 F.3d 138, 149 (2d Cir. 2002) (“Plaintiffs do allege that they were seeking reasonable accommodation of Rose’s disability—which constitutes protected activity under Section 504/ADA”); Haulbrook v. Michelin N. Am., 252 F.3d 696, 706 (4th Cir. 2001) (“The record shows a termination and shows protected activity—Haulbrook’s November 4 request for an accommodation.”); Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1265 (10th Cir. 2001) (“The record . . . contains evidence suggesting [plaintiff]’s requests for improvements to the ventilation system are protected by the statute.”).

Consistent with this prevailing view in the courts of appeals, it too has been the Commission’s longstanding position that requesting accommodation under the ADA or Title VII is protected activity, despite the lack of a neat fit within the text. “Although a person making such a request might not literally ‘oppose’ discrimination or ‘participate’ in a complaint process, the individual is protected against retaliation for making the request.” EEOC Enforcement Guidance on Retaliation; id. (“[P]ersons requesting religious accommodation under Title VII are protected against retaliation for making such requests.”); see also EEOC Compliance Manual Section 12: Religious Discrimination No. 915.003 § 12-V.B (July 22, 2008), available at https://www.eeoc.gov/policy/docs/religion.html ("EEOC has taken the position that requesting religious accommodation is protected activity.") (citing earlier EEOC Compliance Manual, Section 8, “Retaliation,” May 20, 1998).

The district court accepted North Memorial’s argument that ADA retaliation cases were not applicable to Title VII because the ADA contains broader protection, including a separate provision that makes it unlawful to “coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, . . . any right granted or protected by this chapter.” 42 U.S.C.§ 12203(b) (“interference provision”). However, the ADA cases recognizing that requests for accommodation are protected activity cite the retaliation provision alone and do not mention the interference provision. See Heisler, 339 F.3d at 632; Hill, 737 F.3d at 1218; Kirkeberg, 619 F.3d at 907; Product Fabricators, 763 F.3d at 972. Hence, the interference provision of the ADA provides no basis for discounting the ADA retaliation cases.

The district court also relied on several district court decisions that require some additional conduct exhibiting disagreement, defiance, or challenge to the denial of accommodation that communicates a belief that the employer is violating the law. These decisions are not convincing. Perlman v. Mayor and City Council of Balt., No. 15-1620, 2016 WL 640772, at *6 (D. Md. Feb. 18, 2016), for example, held that “making a religious accommodation request is not protected activity,” but it failed to reconcile its holding with the Fourth Circuit’s decision in Haulbrook.

Likewise, St. Juste v. Metro Plus Health Plan, 8 F. Supp. 3d 287, 323-34 (E.D.N.Y. 2014)—which held that the plaintiff’s “complaint that his supervisor was trying to make him choose between his job and his religion falls within the scope of conduct that is prohibited by Title VII” and “opposition” may be an informal complaint, but it must put the employer on notice that the plaintiff believes he or she is being discriminated against on the basis of the protected status—did not discuss how the Second Circuit’s decision in Weixel would affect the analysis. Finally, Payne v. Salazar, 899 F. Supp. 2d 42, 52 (D.D.C. 2012)—which held that an employee’s letter requesting more flexibility in her work schedule on Sundays to permit her to “exercise her religious observance” was not protected activity because it did not allege unlawful discrimination and the plaintiff “nowhere opposes, complains of, or even mentions Defendant’s prior refusals of this request; nor does she state anything to indicate that she would consider the failure to grant her leave request to be discriminatory” – was decided before the D.C. Circuit’s decision in Solomon. In addition to ignoring (or subsequently being contradicted by) their Circuits’ precedent, these courts erroneously ignore the fact that an accommodation request by itself is a statement that the employee is entitled to an accommodation and, implicitly, that failure to grant the accommodation would violate Title VII. These cases thus do not support the district court’s erroneous ruling.

B. Title VII’s broader statutory scheme strongly favors treating requests for religious accommodation as protected activity.

The district court purported to rule based on the statute’s “plain language,” but in doing so it divorced the opposition clause from the broader statutory context. The court’s constrained method of statutory analysis places it at odds with the instructions of the Supreme Court. In Robinson v. Shell Oil, the Court explained that, in determining whether statutory language “has a plain and unambiguous meaning with regard to the particular dispute in the case,” courts must look not only at the “language itself” but also at “the specific context in which that language is used” and “the broader context of the statute as a whole.” 519 U.S. at 341; see also id. at 340 (“’[T]he statutory scheme [must be] coherent and consistent.’”) (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240 (1989)).

The broader context of the statute includes the requirement that employers “‘reasonably accommodate’ the religious beliefs or practices of their employees unless doing so would cause the employers to suffer undue hardship.” Cook v. Chrysler Corp., 981 F.2d 336, 338 (8th Cir. 1992); Sturgill v. United Parcel Serv., Inc., 512 F.3d 1024, 1029-30 (8th Cir. 2008) (Title VII prohibits religious discrimination, and affords an employee the right to request a religious accommodation.) (citing 42 U.S.C. § 2000e(j)); [1] see also E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033–34 (2015) (“[R]eligious practice is one of the protected characteristics that cannot be accorded disparate treatment and must be accommodated.”).

A critical component of seeking an accommodation, this Court has recognized, is informing the employer of a conflict between an individual’s religious belief and an employment requirement. See, e.g., Ollis, 495 F.3d at 575. Thus any analysis of the opposition clause should take into account the requirement that individuals convey the need for an accommodation to their employers.

Had the district court considered this larger statutory framework, it could not have read the opposition clause to leave individuals who inform their employer of their need for an accommodation exposed to possible retaliation. Such a reading of Title VII would lead to an incongruous result, and so further violate principles of statutory interpretation. See, e.g., E.E.O.C. v. Commercial Office Prods. Co., 486 U.S. 107, 120–21 (1988) (“[R]espondent's interpretation of the language of [Title VII] leads to ‘absurd or futile results . . . “plainly at variance with the policy of the legislation as a whole,”’ which this Court need not and should not countenance.”) (citing United States v. Am. Trucking Ass’ns, Inc., 310 U.S. 534, 543 (1940)).

Moreover, the right to accommodation is severely undermined if an employee can be fired or have her job offer rescinded for merely asserting it. As the First Circuit pointed out in Soileau v. Guilford of Me., 105 F.3d 12, 16 (1st Cir. 1997), “It would seem anomalous . . . to think Congress intended no retaliation protection for employees who request a reasonable accommodation unless they also file a formal charge. This would leave employees unprotected if an employer granted the accommodation and shortly thereafter terminated the employee in retaliation.” Cf. Shellenberger, 318 F.3d at 191 (both right to request accommodation in good faith and the right to file a complaint with the EEOC are guaranteed by the ADA).

Excluding requests for accommodation from the category of protected activity would have a chilling effect on the assertion of Title VII’s right to religious accommodation. Employees like Sure-Ondara likely would suppress or withdraw requests for accommodation. “[F]ear of retaliation is the leading reason why people stay silent” about discrimination they encounter or observe. Crawford, 555 U.S. at 279.

Effective protection against retaliation is essential to securing workplaces free of discrimination. Title VII’s “primary objective” of “avoid[ing] harm to employees” would be undermined if employees were not protected from retaliation for requesting accommodation. Crawford, 555 U.S. at 278 (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 417 (1975)). “The antiretaliation provision seeks to secure that primary objective [a workplace free of discrimination] by preventing an employer from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of the Act’s basic guarantees.” Burlington N., 548 U.S. at 63.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

s/ Julie L. Gantz

JULIE L. GANTZ

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

(202) 663-4718

julie.gantz@eeoc.gov

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