Hosea Harrell, Jr. v. John E. Potter

Filing

OPINION FILED - THE COURT: ROGER L. WOLLMAN, DAVID R. HANSEN and BOBBY E. SHEPHERD. Bobby E. Shepherd, Authoring Judge (PUBLISHED) [3772043] [10-1694]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 10-1694
___________
Hosea Harrell, Jr.,
Appellant,
v.
Patrick R. Donahue,
Postmaster General,
United States Postal Service,1
Appellee.

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*
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* Appeal from the United States
* District Court for the Western District
* of Missouri.
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Submitted: November 16, 2010
Filed: March 31, 2011
___________
Before WOLLMAN, HANSEN, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Hosea Harrell is a member of the Seventh-day Adventist Church and a former
employee of the United States Postal Service (USPS). After being fired from his
position with the post office in Warrensburg, Missouri, Harrell brought suit against
the Postmaster General, alleging violations of Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e et seq., (Title VII) for religious discrimination and failure
to accommodate as well as a violation of the Religious Freedom Restoration Act of
1

Patrick R. Donahue is substituted for his predecessor, John E. Potter, as
Postmaster General, under Fed. R. App. P. 43(c)(2).

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1993, 42 U.S.C. §§ 2000bb et seq., (RFRA). The district court2 granted summary
judgment in favor of the USPS, and we affirm.
I.
At all times relevant to this appeal, the Warrensburg Post Office was
responsible for seven “bid routes” that required approximately eight hours to complete
and one “auxiliary route” that took between five to eight hours to complete. To cover
these routes Monday through Saturday, the Warrensburg Post Office employed seven
full-time letter carriers, a full-time letter carrier technician, and three part-time flexible
letter carriers.3 A minimum of seven letter carriers was required each day to complete
the routes. Each full-time letter carrier was assigned to one of the bid routes with the
technician and part-time letter carriers filling in on the various bid routes and the
auxiliary route as needed.
According to a seniority system used by the Warrensburg Post Office, the six
most junior full-time letter carriers and the technician had rotating schedules, working
five days a week with every Sunday off and another rotating day off. As a result, each
letter carrier with a rotating schedule was scheduled to be off work approximately
every sixth Saturday. The only full-time letter carrier without a rotating schedule was
the most senior letter carrier, who worked Monday through Friday with weekends off.
Many other scheduling details at the Warrensburg Post Office were expressly
controlled by a collective bargaining agreement (CBA) between the National
Association of Letter Carriers—the union for city letter carriers working for the
2

The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
3

In November 2007, one of the Warrensburg Post Office’s part-time flexible
letter carriers was assigned as a temporary supervisor. After that assignment, the
Warrensburg Post Office was left with only two part-time flexible letter carriers.
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USPS—and the USPS. For example, the CBA controlled the process by which annual
leave was granted. During “choice” vacation months,4 annual leave was awarded
under a bidding system whereas annual leave outside the “choice” vacation months
was awarded on a first-come basis. The CBA also permitted an employee to request
“leave without pay” but did not specify the process by which the USPS granted such
requests. Rather, according to the USPS Employee and Labor Relations Manual,
leave without pay was granted at the discretion of the USPS, considering the needs of
the employee, the needs of the USPS, and the cost to the USPS.
Harrell began working for the USPS in 2001 as a part-time flexible letter carrier
for the Warrensburg Post Office. In 2004, Harrell bid for and was awarded a full-time
letter carrier position that operated on a rotating schedule. From the time of Harrell’s
hiring as a full-time letter carrier until his eventual firing, Harrell remained the most
junior full-time letter carrier at the Warrensburg Post Office.
In November 2006, Harrell submitted a written request to James Carothers,
Supervisor of Customer Services for the Warrensburg Post Office, requesting a
religious accommodation to have every Saturday off because working at any time
between sundown Friday to sundown Saturday conflicted with his religious beliefs as
a Seventh-day Adventist. In January 2007, Harrell, Carothers, and a union
representative met to discuss Harrell’s request. During this meeting, Harrell rejected
the proposition that he be given leave for part of the day on Saturdays to attend church
services and insisted that the only acceptable accommodation was that he receive
every Saturday off. In February 2007, Carothers and Rick Hudson, Postmaster for the
Warrensburg Post Office, asked each full-time letter carrier whether they would be
willing to give up any of their non-scheduled Saturdays to accommodate another letter
carrier. Each declined.

4

The choice vacation period was April 1 through October 31.
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Shortly thereafter, Harrell submitted another written request for religious
accommodation directly to Hudson. This request led to another meeting with Hudson,
Carothers, and Harrell to discuss how the USPS could accommodate Harrell’s request.
At this meeting, Hudson and Carothers told Harrell he could attempt to swap
scheduled days off with other letter carriers. Additionally, Harrell was asked whether
he was willing to make a lateral transfer to another office or to a different position
within the USPS. Shortly after this meeting, Harrell informed Hudson and Carothers
that he would not accept the options they suggested. Harrell also reiterated his
position that the only satisfactory accommodation was that he be given every Saturday
off and that he preferred to not use annual leave or leave without pay to achieve this
accommodation.
During the summer of 2007, Harrell began to request leave5 for numerous
Saturdays, but nearly all of his requests were denied. Ultimately, beginning on
October 13, 2007, Harrell stopped working on Saturdays regardless of whether he was
scheduled to work. Although Harrell requested leave for each absence, his requests
were denied, and when he failed to report to work for his scheduled Saturday shifts,
he was charged with being absent without leave. After Harrell was given three
disciplinary suspensions due to his absences, he was terminated in March 2008.
On March 21, 2008, Harrell filed an Equal Employment Opportunity complaint
with the USPS claiming he was discriminated against because of his religion when he
received the three disciplinary suspensions. On July 24, 2008, the USPS issued a final
decision denying Harrell’s claims and concluding that “the evidence does not support
a finding that the complainant was subject to discrimination as alleged.” Harrell
subsequently filed this action, claiming the USPS violated Title VII by discriminating
against him because of his religion and by failing to accommodate his religious
beliefs. Harrell also claimed the USPS violated RFRA by infringing on his ability to
practice his religion without showing a compelling reason for doing so.
5

The majority of Harrell’s requests were for leave without pay.
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II.
The district court granted the USPS’s motion for summary judgment. First, the
court granted summary judgment in favor of the USPS on Harrell’s Title VII religious
discrimination claim because, even assuming Harrell had proved a prima facie case
for religious discrimination, the USPS had a legitimate, non-discriminatory reason for
disciplining and ultimately firing Harrell when he failed to work his scheduled
Saturday shifts. Second, the court also granted summary judgment in favor of the
USPS on Harrell’s failure to accommodate claim because the court concluded the
USPS would suffer an undue hardship if it was required to accommodate Harrell’s
request. Third, the district court concluded Harrell could not bring an action under
RFRA because Title VII is the exclusive remedy for a federal employee’s claim of
employment discrimination. Harrell appeals the district court’s ruling only with
respect to his Title VII failure to accommodate claim and his RFRA claim.
III.
We review de novo a district court’s decision to grant summary judgment,
viewing the record in the light most favorable to the nonmoving party. Winspear v.
Cmty. Dev., Inc., 574 F.3d 604, 605 (8th Cir. 2009) (quotation omitted). “We will
affirm the grant of summary judgment if ‘there is no genuine issue as to any material
fact and the movant is entitled to judgment as a matter of law.’” Marksmeier v. Davie,
622 F.3d 896, 899 (8th Cir. 2010) (quoting Fed. R. Civ. P. 56(c)).
A.
Title VII requires an employer to reasonably accommodate the religious beliefs
of its employees unless the employer can demonstrate that doing so would impose an
undue hardship. 42 U.S.C. § 2000e(j); Phillips v. Collings, 256 F.3d 843, 850 (8th
Cir. 2001). It is undisputed that the USPS knew of Harrell’s sincere religious belief
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and that this belief conflicted with one of Harrell’s employment requirements as a fulltime letter carrier working on a rotating schedule. As a result, the USPS must show
either that it offered Harrell a reasonable accommodation or that accommodating
Harrell’s request would have resulted in an undue hardship. See Brown v. Gen.
Motors Corp. (Brown I), 601 F.2d 956, 959-60 (8th Cir. 1979); accord Peterson v.
Hewlett-Packard Co., 358 F.3d 599, 606 (9th Cir. 2004). The district court did not
address whether the USPS had offered Harrell a reasonable accommodation because
it found that granting Harrell’s request for religious accommodation would have
created an undue hardship. We agree that accommodating Harrell’s religious beliefs
“could not be accomplished without undue hardship.”6 Brown v. Polk Cnty., Iowa
(Brown II), 61 F.3d 650, 654 (8th Cir. 1995) (en banc) (quoting United States v. Bd.
of Educ., 911 F.2d 882, 887 (3d Cir. 1990)).
Determinations of what constitutes an “undue hardship” must be made on a
case-by-case basis. See Brown II, 61 F.3d at 655. Harrell’s request for religious
accommodation was that he be given every Saturday off, either through a change to
his scheduled day off or through the use of annual leave and approved leave without
pay. We evaluate each option in turn.
1.
The accommodation requested by Harrell that he be given every Saturday as a
scheduled day off would have violated the CBA, and the USPS was therefore not
6

On appeal, Harrell contends that the question before this Court is whether the
USPS could have accommodated Harrell’s nine absences on Saturdays between
October 13 and December 29, 2007, the absences that led to his firing, without
suffering an undue hardship. We disagree. The question is whether the USPS could
have accommodated Harrell’s requested religious accommodation—to be exempted
from working on all Saturdays—without suffering an undue hardship. 42 U.S.C. §
2000e(j). That inquiry is not altered simply because Harrell was disciplined after
missing nine particular Saturdays.
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required under Title VII to grant Harrell’s request. Section 1.A.3. of article 41 of the
national CBA states that “[t]he existing local procedures for scheduling fixed or
rotating non-work days and the existing local method of posting and of installationwide or sectional bidding shall remain in effect unless changes are negotiated locally.”
When Harrell became a full-time letter carrier, he did so by bidding on a bid position
that operated on a rotating schedule. These rotating schedules were established under
the Warrensburg Post Office’s seniority system, and it is not disputed that this system
was in place at the Warrensburg Post Office when the current CBA took effect. The
Local Memorandum of Understanding for the Warrensburg Post Office does not
indicate any change to the seniority system’s method of scheduling and neither party
claims that a change to the system was negotiated locally. Therefore, the national
CBA required that the existing procedure “for scheduling fixed or rotating non-work
days . . . remain in effect.”
By seeking every Saturday as a scheduled day off, Harrell effectively asked for
the USPS to make a unilateral change to his bid position so that he would operate
under a fixed schedule rather than a rotating one. However, the CBA prohibited the
USPS from making this accommodation, and doing so would have therefore imposed
an undue hardship. See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 81
(1977); Mann v. Frank, 7 F.3d 1365, 1369 (8th Cir. 1993).
2.
As an alternative to a permanent change to his scheduled day off, Harrell
contends the USPS could have accommodated him through annual leave and approved
leave without pay. But this proposed accommodation would have also created an
undue hardship.
In addition to the violation of a collective bargaining agreement, an
accommodation creates an undue hardship if it causes more than a de minimis impact
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on co-workers. See Brown II, 61 F.3d at 655 (explaining that an undue hardship
exists if there is an “actual imposition on co-workers” rather than mere “proof of some
fellow-worker’s grumbling” (quoting Burns v. S. Pac. Transp. Co., 589 F.2d 403, 407
(9th Cir. 1978))); see also EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307,
317 (4th Cir. 2008) (“[A]n employer is not required to accommodate an employee’s
religious need if it would impose personally and directly on fellow employees.”)
(internal quotation omitted); Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th
Cir. 1999) (en banc) (“Undue hardship may also be present when an accommodation
would cause more than a de minimis impact on coworkers, such as depriving
coworkers of seniority rights.”). Certainly, every religious accommodation will
inevitably cause some differences in treatment among employees, and differential
treatment alone is not enough to create an undue hardship. See Brown I, 601 F.2d at
961-62. But if accommodating an employee’s religious beliefs also causes a “real”
and “actual” imposition on co-workers, Brown II, 61 F.3d at 655, Title VII does not
require an employer to make such an accommodation. Hardison, 432 U.S. at 81 (“It
would be anomalous to conclude that by ‘reasonable accommodation’ Congress meant
that an employer must deny the shift and job preference of some employees, as well
as deprive them of their contractual rights, in order to accommodate or prefer the
religious needs of others, and we conclude that Title VII does not require an employer
to go that far.”); Opuku-Boateng v. California, 95 F.3d 1461, 1469-70 (9th Cir. 1996)
(explaining that Hardison bars “preferential treatment of employees” in
accommodating religious practices under Title VII (quoting Tooley v. Martin-Marietta
Corp., 648 F.2d 1239, 1243 (9th Cir. 1981))).
In this case, requiring the USPS to grant leave to Harrell for scheduled Saturday
shifts—either through annual leave or leave without pay—would have substantially
imposed on Harrell’s co-workers. Specifically, excusing Harrell from having to work
on Saturdays would effectively violate the Warrensburg Post Office’s long-standing

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seniority system, depriving Harrell’s co-workers of their rights under the seniority
system.7
The Warrensburg Post Office required at least seven letter carriers each
weekday and Saturday to cover its routes. Because it was impossible to give each
full-time letter carrier every Saturday off, the Warrensburg Post Office utilized a
seniority system to schedule work for full-time letter carriers. Under this system, the
most senior full-time letter carrier had a fixed schedule with every Saturday and
Sunday off while the other six full-time letter carriers and the full-time letter carrier
technician had a rotating schedule with Sunday and one other rotating day off each
week. Accordingly, the burden of Saturday work was spread out among those with
a rotating schedule, including Harrell, such that each received approximately every
sixth Saturday off. But relieving Harrell, the most junior full-time letter carrier, of his
responsibility for Saturday work would have violated the seniority system and
required the USPS to assign another letter carrier in Harrell’s place. This
accommodation would have burdened other letter carriers with more Saturday work
at least in part because they did not share Harrell’s religious beliefs. See Hardison,
432 U.S. at 81. Indeed, Harrell’s counsel conceded at oral argument that
accommodating Harrell’s religious beliefs would have required other letter carriers to
work Saturday shifts that they otherwise would have had off under the seniority
system. These impositions are neither hypothetical nor speculative and would have
constituted an undue hardship. See id. at 80-81; Firestone, 515 F.3d at 317-19.

7

Despite Harrell’s multiple prior statements that he must be given every
Saturday off to accommodate his religious beliefs, Harrell’s counsel at oral argument
conceded that the USPS need not give Harrell a particular Saturday off if it would
result in increased costs to the USPS or a decrease in efficiency. But even if granting
leave to Harrell on Saturdays would not directly cause increased costs or decreased
efficiency to the USPS, it would still create an undue hardship by violating the
Warrensburg Post Office’s seniority system and imposing on Harrell’s co-workers.
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The language of Title VII also confirms that the USPS was not required to
violate the Warrensburg Post Office’s seniority system to accommodate Harrell.
Section 703(h) of Title VII states that “[n]otwithstanding any other provision of this
subchapter, it shall not be an unlawful employment practice for an employer to apply
different standards of compensation, or different terms, conditions, or privileges of
employment pursuant to a bona fide seniority or merit system.” 42 U.S.C. § 2000e2(h). This provision makes clear that “[e]mployers need not transgress upon their
seniority systems to make accommodations” for an employee’s religious beliefs.
Balint, 180 F.3d at 1053. “Thus, absent a discriminatory purpose, the operation of a
seniority system cannot be an unlawful employment practice even if the system has
some discriminatory practices.” Hardison, 432 U.S. at 82. Accordingly, the USPS
was not required to violate the Warrensburg Post Office’s seniority system to
accommodate Harrell’s religious beliefs.
Harrell argues, however, that violating the Warrensburg Post Office’s seniority
system would not create an undue hardship because the seniority system was not
established under the CBA. If the seniority system was not created under the CBA,
Harrell reasons, the rights of Harrell’s co-workers under the seniority system are not
contractually protected by the CBA and therefore depriving them of those rights
would not create an undue hardship. For this argument, Harrell relies heavily on the
Supreme Court’s decision in Hardison, where the Court declared that Title VII did not
require an employer to violate a seniority system created under a collective bargaining
agreement to accommodate the religious beliefs of an employee. 432 U.S. at 79-83.
The Court noted that “a seniority system represents a neutral way of minimizing the
number of occasions when an employee must work on a day that he would prefer to
have off.” Id. at 78. Thus, violating a seniority system to accommodate one
employee’s religious beliefs would deny another employee his shift preference so that
the employee with a religious objection could be given his. Id. at 80. But the Court
concluded that “Title VII does not require an employer to go that far.” Id. at 81.

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Although Hardison involved a seniority system that was established under a
collective bargaining agreement, its holding was not as limited as Harrell suggests.
The Court in Hardison was concerned with the unequal treatment that would arise
from violating a seniority system to accommodate the religious beliefs of one
employee and unequivocally concluded that “Title VII does not contemplate such
unequal treatment.” Id. at 81. Such unequal treatment can arise irrespective of
whether the seniority system was established under a collective bargaining agreement
or whether it was unilaterally imposed by an employer. See US Airways, Inc. v.
Barnett, 535 U.S. 391, 403-05 (2002) (“[T]he relevant seniority system advantages,
and related difficulties that result from violations of seniority rules, are not limited to
collectively bargained systems.”); Weber v. Roadway Exp., Inc., 199 F.3d 270, 273
(5th Cir. 2000) (“The fact that [an employee’s] casual co-workers have no contract
entitling them to a particular run or job preference does not exclude the instant case
from Hardison’s coverage.”). Moreover, as previously mentioned, section 703(h) of
Title VII explains that employers need not violate seniority systems to accommodate
an employee’s religious beliefs. But nothing in the language of section 703(h) limits
its application to only those “bona fide seniority or merit system[s]” that are created
pursuant to a collective bargaining agreement. Therefore, the USPS was not required
to violate the Warrensburg Post Office’s seniority system to accommodate Harrell.
Accordingly, the district court properly dismissed Harrell’s Title VII failure to
accommodate claim.
B.
Harrell also claims the district court erred by granting summary judgment in
favor of the USPS on his RFRA claim. Harrell admits that his RFRA claim relies on
the same operative facts—that the USPS required him to work on Saturdays, which
violated his religious beliefs—that form the basis for his Title VII claim. But Harrell

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argues that because he properly exhausted his administrative remedies, as required by
Title VII, he is also free to seek relief under RFRA. We disagree.
In 1976, the Supreme Court declared that “the Civil Rights Act of 1964, as
amended, provides the exclusive remedy for claims of discrimination in federal
employment.” Brown v. Gen. Servs. Admin., 425 U.S. 820, 835 (1976). The Court’s
analysis hinged in large part on the “established principle” that “a precisely drawn,
detailed statute pre-empts more general remedies.” Id. at 834. Accordingly, we have
previously rebuffed attempts by federal employees to seek remedies outside Title VII
for claims of employment discrimination. See, e.g., Mathis v. Henderson, 243 F.3d
446, 449 (8th Cir. 2001); Gergick v. Austin, 997 F.2d 1237, 1239 (8th Cir. 1993)
(refusing to allow a federal employee to “supplement . . . his retaliation claim under
Title VII” with a claim for emotional distress under the Federal Tort Claims Act).
Therefore, because Title VII was undoubtedly the exclusive remedy for claims of
discrimination in federal employment prior to RFRA, we must determine whether
RFRA created an additional remedy for federal employment discrimination that had
not previously existed.8
RFRA, which Congress passed in 1993, provides that the Government cannot
impose a law that substantially burdens a person’s free exercise of religion unless the
Government demonstrates that the law “(1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive means of furthering that
compelling governmental interest.” 42 U.S.C. § 2000bb-1(b)(1)-(2). The statute
“applies to all Federal law, and the implementation of that law, whether statutory or
otherwise, and whether adopted before or after [the passage of RFRA].” 42 U.S.C.
§ 2000bb-3(a). Although this language does not precisely explain RFRA’s interplay
with Title VII, both the House Report and the Senate Report unequivocally state that
8

The Third Circuit has previously weighed in on this issue, concluding that
Title VII remains the “exclusive remedy for job-related claims of federal religious
discrimination” after RFRA. Francis v. Mineta, 505 F.3d 266, 272 (3d Cir. 2007).
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RFRA was not intended to affect religious accommodation under Title VII. S. Rep.
No. 103-111, at 13 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1903 (“Nothing in
this act shall be construed as affecting religious accommodation under Title VII of the
Civil Rights Act of 1964.”); H.R. Rep. No. 103-88, at 7 (1993) (“Nothing in this bill
shall be construed as affecting Title VII of the Civil Rights Act of 1964.”).
This conclusion is further supported by the history and purpose of RFRA. In
1990, the Supreme Court decided Employment Division v. Smith, 494 U.S. 872
(1990), the case that prompted Congress’ passage of RFRA. Prior to Smith, the Court
had traditionally held that any law that substantially burdened the free exercise of
religion was constitutionally permissible only if the Government could show a
compelling interest. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 214-15 (1972);
Sherbert v. Verner, 374 U.S. 398, 406 (1963). In Smith, however, the Court
concluded that generally applicable laws may survive constitutional scrutiny, even if
those laws substantially burden the free exercise of religion, without the Government
having to show a compelling interest. 494 U.S. at 884-85. Congress promptly
responded to Smith by passing RFRA. See S. Rep. No. 103-111, at 2, 8-9 (1993),
reprinted in 1993 U.S.C.C.A.N. 1892, 1893, 1897-98 (explaining the purpose of
RFRA); H.R. Rep. No. 103-88, at 1-5 (1993) (same). Thus, the purpose of RFRA was
to return to what Congress believed was the pre-Smith status quo of requiring the
Government to show a compelling interest for any law that substantially burdened the
free exercise of religion. Francis v. Mineta, 505 F.3d 266, 270 (3d Cir. 2007); In re
Young, 141 F.3d 854, 857 (8th Cir. 1998). RFRA was not intended to broaden the
remedies for federal employment discrimination beyond those that already existed
under Title VII. As a result, Harrell’s claims under RFRA are barred because Title
VII provides the exclusive remedy for his claims of religious discrimination.
IV.
The judgment of the district court is affirmed.
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