Equal Employment Opportunity Commission v. North Memorial Health Care

Filing 32

ORDER granting 19 Motion for Summary Judgment (Written Opinion) Signed by Senior Judge David S. Doty on 7/6/2017. (DLO)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 15-3675(DSD/KMM)
Equal Employment Opportunity Commission,
Plaintiff,
v.

ORDER

North Memorial Health Care,
Defendant.
Tina Burnside, Equal Employment Opportunity Commission, 330
Second Avenue South, Suite 720, Minneapolis, MN 55401, counsel
for plaintiff.
Karen G. Schanfied, Esq., Krista A.P. Hatcher, Esq and
Fredrikson & Byron, PA, 200 South 6th Street, Suite 4000,
Minneapolis, MN 55402, counsel for defendant.

This matter is before the court upon the motion for summary
judgment by defendant North Memorial Health Care.

Based on a

review of the file, record, and proceedings herein, and for the
following reasons, the court grants the motion.

BACKGROUND
This

Title

VII

dispute

arises

out

of

North

Memorial’s

rescission of Emily Sure-Ondara’s conditional offer of employment.
North Memorial is a healthcare provider based in Robbinsdale,
Minnesota.

Wombacher Decl. ¶ 3.

As part of an effort to attract

a diverse workforce, North Memorial started the Advanced Beginner
Program, which is a residency program that provides hospital
experience to registered nurses. Id. ¶¶ 5-6. The employment terms

and conditions for nurses hired under the program are governed by
the collective bargaining agreement between North Memorial and the
Minnesota Nurses Association (Union Agreement).

See id. ¶ 8;

Hatcher Aff. Ex. K.
Sure-Ondara is a Seventh Day Adventist and nurse. In November
2013, Nicholas Wombacher, a Human Resources Generalist at North
Memorial, emailed Sure-Ondrara and encouraged her to apply for the
Advanced Beginner Program.

Sure-Ondara Dep. at 151:12-20.

Sure-

Ondara applied for the a position in North Memorial’s Collaborative
Acute Care for the Elderly (CACE) unit.

Wombacher Dep. at 25:25-

26:10, 32:10-17; Sure-Ondara Dep. at 154:18-23.

On November 11,

2013, after interviews with Wombacher and Anthony Levens, the
Assistant Nurse Manager for the CACE unit, North Memorial extended
Sure-Ondara a conditional offer of employment. Sure-Ondara Dep. at
153:7-9; Hatcher Aff. Ex. J. Sure-Ondara was scheduled to work the
night shift from 11 p.m. to 7 a.m. and, per the Union Contract, was
also required to work every other weekend.

Wombacher Decl. ¶¶ 11-

12; Hatcher Aff. Ex. J.
After receiving the offer, Sure-Ondara told Lisa Clements, a
Human Resources receptionist, that she could not work on Friday
nights for religious reasons and would need an accommodation.
Sure-Ondara Dep. at 159:6-8; Clements Dep. at 25:23-25.

Lisa

Minshull, a Human Resources generalist, called Sure-Ondara to
obtain

more

information

about

her

2

request,

and

Sure-Ondara

explained that she could not work on Friday nights because she is
a Seventh Day Adventist.

Sure-Ondara Dep. at 160:17-161:15;

Minshull Dep. at 20:6-21:11. Minshull advised Sure-Ondara that she
was required to work every other weekend under the terms of the
Union Agreement and that if she was unable to do so, North Memorial
may need to offer the position to another candidate.
Dep. at 161:22-162:6.

Sure-Ondra

Sure-Ondara responded that she would “make

it work.” Sure-Ondara Dep. at 162:4-13; Minshull Dep. at 22:18-22;
Hatcher Aff. Ex. M.

Sure-Ondara explained that she would either

find a substitute for her Friday night shift or come in if she
could not find a replacement. Minshull Dep. at 26:2-7; Sure-Ondara
Dep. at 162:8-19, 189:12-190:6.

Wombacher, Melissa Smith, the

Manager of Talent Management, and Renee Conklin, the Director of
Human Resources met to discuss Sure-Ondra’s accommodation request.
Conklin Dep. at 43:23-44:10.

They concluded that granting her

request was not feasible, and they were also concerned that she
would not show up for her Friday night shift.

Therefore, they

decided to rescind Sure-Ondara’s conditional employment offer.
Conklin Dep. at 61:21-62:13, 97:25-98:12; Smith Dep. at 35:1737:25, 61:1-9; Wombacher Dep. at 64:6-21, 74:19-23.
On November 20, 2013, Wombacher sent Sure-Ondara a letter
stating

that

North

Memorial

could

not

grant

her

schedule

modification request and revoking her offer of employment.

See

Hatcher Aff. Ex. N. The letter also stated that North Memorial was

3

willing to consider her for other positions.

See id.

Sure-Ondara

applied for other positions with North Memorial without success.
Sure-Ondara Dep. at 231:8-232:10.
On December 13, 2013, Sure-Ondara filed a discrimination claim
with the Equal Employment Opportunity Comission (EEOC).
Hatcher Aff. Ex. Q.

See

Sure-Ondara claimed that North Memorial had

(1) engaged in religious discrimination by denying her requested
accommodation;

(2)

discriminated

against

her

because

she

was

pregnant; and (3) retaliated against her for requesting a religious
accommodation. See id. After an investigation, the EEOC concluded
that there was probable cause to find that North Memorial had
retaliated against Sure-Ondara by revoking her employment offer
because she requested an accommodation.

See Hatcher Aff. Ex. R.

The EEOC also concluded that there was not a sufficient basis to
pursue the religious discrimination or pregnancy discrimination
claims.
On September 16, 2015, the EEOC filed suit against North
Memorial alleging that it violated 42 U.S.C. § 2000e-3(a) by
retaliating

against

accommodation.

Sure-Ondara

for

requesting

a

religious

North Memorial now moves for summary judgment.

4

DISCUSSION
I.

Standard of Review
“The court shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”

Fed. R. Civ.

P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material only when its resolution affects the outcome of
the case.
(1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

A dispute is genuine if the evidence is such that it could

cause a reasonable jury to return a verdict for either party.

See

id. at 252 (“The mere existence of a scintilla of evidence in
support of the plaintiff’s position will be insufficient ....”).
On a motion for summary judgment, the court views all evidence
and inferences in a light most favorable to the nonmoving party.
Id. at 255.

The nonmoving party, however, may not rest upon mere

denials or allegations in the pleadings but must set forth specific
facts sufficient to raise a genuine issue for trial.
U.S. at 324.

Celotex, 477

A party asserting that a genuine dispute exists - or

cannot exist - about a material fact must cite “particular parts of
materials in the record.”

Fed. R. Civ. P. 56(c)(1)(A).

If a

plaintiff cannot support each essential element of a claim, the
court must grant summary judgment because a complete failure of
proof regarding an essential element necessarily renders all other
facts immaterial.

Celotex, 477 U.S. at 322-23.
5

II.

Retaliation
To establish a prima facie case of retaliation, the EEOC must

show that (1) Sure-Ondara engaged in protected conduct, (2) she
suffered an employment action that would dissuade a reasonable
employee from making a charge of discrimination, and (3) that there
is a causal connection between the two.

See Higgins v. Gonzales,

481 F.3d 578, 589 (8th Cir. 2007), abrogated on other grounds by
Togerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011) (en
banc).
North

Memorial

argues

that

the

EEOC’s

claim

should

be

dismissed because requesting a religious accommodation is not a
protected activity.

As far as the parties, and the court, is

aware, no court in this circuit has decided whether requesting a
religious accommodation is protected activity under Title VII.
answering

this

question,

the

court

according to its “plain language.”

must

interpret

Title

In
VII

Hennepin Cnty. v. Fed. Nat’l

Mortg. Ass’n, 742 F.3d 818, 821 (8th Cir. 2014).

The court must

“give words their ordinary, contemporary, common meaning unless
they are otherwise defined in the statute itself.”

Id. (internal

quotations marks omitted) (quoting United States v. Friedrich, 402
F.3d 842, 845 (8th Cir. 2005)); see also Milner v. Dep’t of Navy,
562 U.S. 562, 569 (2011) (quoting Park’n Fly, Inc. v. Dollar Park
& Fly, Inc., 469 U.S. 189, 194 (1985)) (“Statutory construction
must

begin

with

the

language

employed

6

by

Congress

and

the

assumption that the ordinary meaning of that language accurately
expresses the legislative purpose.”).
Under Title VII, an employee engages in protected activity
when

she

employment

either

(1)“oppose[s]

practice

by

any

[Title

practice

VII]”

or

made

an

“ma[kes]

unlawful

a

charge,

testifie[s], assist[s], or participate[s] in any manner in an
investigation, proceeding, or hearing under [Title VII]. 42 U.S.C.
§ 2000e-3(a).
described,

“The two clauses of this section typically are

respectively,

as

the

opposition

clause

and

the

participation clause.” Barker v. Mo. Dep’t of Corr., 513 F.3d 831,
834 (8th Cir. 2008) (internal quotations marks omitted).
Applying

the

plain

language

of

the

statute,

the

court

concludes that requesting a religious accommodation is not a
protected activity.

Under the opposition clause, a plaintiff must

communicate her opposition to a practice that she believes, in good
faith, is unlawful.

Id. at 834.

There is no evidence that Sure-

Ondra believed that North Memorial’s denial of her religious
accommodation request was unlawful.

And even if she did, she did

not communicate that belief to North Memorial.

In other words,

merely requesting a religious accommodation is not the same as
opposing

the

allegedly

unlawful

denial

of

a

religious

accommodation. See Perlman v. Mayor and City Council of Baltimore,
No. SAG-15-1620, 2016 WL 640772, at *6 (D. Md. February 18, 2016)
(“[Plaintiff’s] making a religious accommodation request is not

7

protected activity. The making of such a request [does not] oppose
any practice of the City.”); St. Juste v. Metro Plus Health Plan,
8 F. Supp. 3d 287, 323 (E.D.N.Y. 2014) (“This email is not
protected activity ... in view of the absence of any reference to
concerns about discrimination.”); Payne v. Salazar, 899 F. Supp. 2d
42, 52 (D.D.C. 2012) (internal quotation marks omitted) (“Although
Plaintiff mentions the purpose of her leave - to attend church she nowhere opposes, complains of, or even mentions Defendant’s
prior refusals of [her] request; nor does she state anything to
indicate that she would consider the failure to grant her leave
request to be discriminatory.”); see also Kirkeberg v. Canadian
Pac. Ry., 619 F.3d 898, 907 (8th Cir. 2010) (citation and internal
quotation marks omitted) (“An employee who asserts a right under
[the

ADA]

to

obtain

reasonable

accommodation

for

an

alleged

disability has not opposed any act or practice made unlawful by the
ADA.”).1

Therefore, Sure-Ondra’s accommodation request is not

protected activity under the opposition clause.
Neither

is

Sure-Ondra’s

accommodation

request

protected

activity under the participation clause. There is no evidence that
Sure-Ondra “made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing” prior to

1

Indeed, the court in Kirkeberg found that requesting an
accommodation under the ADA was a protected activity because it was
bound to apply Heisler v. Metro. Council, 339 F.3d 622, 629-30 (8th
Cir. 2003). Id. at 907-08. Such binding precedent does not exist
for Title VII claims.
8

her termination.

Indeed, no such proceedings had commenced prior

to or at the time of her termination.

The court is unable to fit

Sure-Ondra’s accommodation request within the plain language of the
statute.

See

Perlman,

2016

WL

640772,

at

*6

(holding

that

requesting an accommodation does not fall under the participation
clause of Title VII); see also Kirkeberg, 619 F.3d at 907 (internal
quotation marks omitted) (“An employee who asserts a right under
[the

ADA]

testified,

to

obtain

assisted,

reasonable
or

accommodation

participated

in

any

...

[has

manner

in

not]
an

investigation, proceeding or hearing under the ADA.”).
The EEOC argues that the court should apply Heisler, in which
the Eighth Circuit held that requesting an accommodation was
protected activity under the ADA.

See 339 F.3d at 632; see also

Hill v. Walker, 737 F.3d 1209, 1219 (8th Cir. 2013) (“We assume for
the sake of analysis, in light of Heisler, that ... requesting [an]
accommodation

...

[is]

protected

activity

under

the

ADA.”);

Kirkeberg, 619 F.3d at 908 (“[W]e are bound by Heisler to conclude
that making such a[n] [accommodation] request is protected activity
....”).

The court, however, is unpersuaded.

First, in light of the Eighth Circuit’s recent questioning of
Heisler due to its failure to apply the plain language of the
statute, the court declines to extend Heisler’s reasoning to Title
VII claims.

See Kirkeberg, 619 F.3d at 907-08 (noting that, under

the plain language of the statute, a retaliation claim based on an

9

accommodation claim would “never get[] out of the starting gate”).
Second, differences between the ADA and Title VII weigh
against applying ADA precedent to a Title VII claim.

Namely, the

ADA protects a broader range of activity than does Title VII.

In

addition to its retaliation provision, which is identical to the
language in Title VII, the ADA also makes it “unlawful to coerce,
intimidate, threaten, or interfere with any individual in the
exercise or enjoyment of, or on account of his or her having
exercised or enjoyed ... any right granted or protected by this
chapter.”

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

Title VII has no such provision.

This additional provision in the ADA supports an inference that
Congress intended to protect activity that did not fall under the
opposition or participation clauses.

Moreover, in adding this

provision to the ADA, Congress evinced an understanding that the
retaliation provision, taken from Title VII, was insufficient in
protecting

activity

that

fell

outside

the

plain

language

of

opposition and participation clauses. 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 statute to dictate policy outcomes.

See Hartford

Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 1314 (2000) (“Achieving a better policy outcome ... is a task for

10

Congress, not the courts.”).2
Although

some

courts

have

held

that

requesting

an

accommodation is a protected activity under Title VII, they did so
when the issue was not in dispute and without analyzing Title VII’s
language.

See, e.g., Porter v. City of Chicago, 700 F.3d 944, 957

(7th Cir. 2012) (“We assume, as the parties do, that [plaintiff]
engaged in statutorily protected activity, including her request to
have Sundays off ....”); Nichols v. Ill. Dep’t of Transp., 152 F.
Supp. 3d 1106, 1139 (N.D. Ill. 2016) (holding that requesting a
religious accommodation “clearly constitutes protected activity”
without analyzing the statutory language or citing authority);
Jenkins v. New York City Transit Auth., 646 F. Supp. 2d 464, 473
(S.D.N.Y. 2009) (relying on ADA precedent and without analyzing the
statutory language in holding that requesting an accommodation is
protected activity).3

Therefore, the court finds these cases

2

Agency interpretations of statutes that are “contained in
formats such as opinion letters are entitled to respect ... but
only to the extent that those interpretations have the power to
persuade.” Christensen v. Harris Cty., 529 U.S. 576, 587 (2000)
(internal quotation marks omitted).
For the reasons set forth
above, the court finds that the EEOC’s guidelines, which advise
that requesting an accommodation is protected activity under Title
VII, are unpersuasive.
3

The other cases the EEOC cites in support are inapposite
because in those cases the court found that the plaintiff’s
activity constituted a complaint and therefore fell under the
opposition clause.
Here it is undisputed that Sure-Ondra’s
activity did not constitute a formal or informal complaint. See,
e.g., Lewis v. New York City Transit Auth., 12 F. Supp. 3d 418, 449
(E.D.N.Y. 2014) (holding that plaintiff’s conduct fell under the
opposition clause of Title VII when she protested discriminatory
11

unpersuasive.
As a result, the court holds that requesting a religious
accommodation is not protected activity under Title VII, and
summary judgment is therefore warranted.

CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.

Defendant’s motion for summary judgment [ECF No. 19] is

granted; and
2.

The case is dismissed with prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: July 6, 2017
s/David S. Doty
David S. Doty, Judge
United States District Court

employment practices); St. Juste, 8 F. Supp. 3d at 323 (holding
that plaintiff’s conduct was protected activity because it amounted
to an informal complaint).
12