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Failure to help Jehovah’s Witness find new position supports reasonable accommodation claim

By Kathleen Kapusta, J.D.

Although a state university allegedly offered to help a Jehovah’s Witness find a new position after he refused to attend mandatory weapon training for his public safety job, a federal district court in North Carolina found that fact issues existed as to whether its purported encouragement and assistance qualified as a reasonable accommodation. Even if the employee himself did not apply for any vacant positions, it may have been possible for the employer to suggest certain positions or place him in a vacant position based on his personnel file and the descriptions of his past employment, the court found in denying summary judgment on his failure to accommodate claim (Westbrook v North Carolina A&T State University, September 11, 2014, Beaty, J).

Originally hired in 1994, the employee was assigned to the university’s police department in 2006 where he worked as a parking services officer. Although the department’s general orders required officers to be trained in and carry defensive weapons, this was not enforced at the time of his assignment.

Alleged hostility. In 2008, the employee allegedly declined the new interim police chief’s request that he oversee a Christmas party. Shortly thereafter, his request for vacation leave to attend a Bible conference was purportedly conditioned on advising his coworkers of the reason for his request and obtaining their written consent. He further alleged that the interim chief’s subsequent decision to enforce the weapons training order was motivated by her hostility towards his religion.

Termination. When the new police chief took over later that year, he retained the order requiring weapons training and the employee was notified that he was required to attend training. Though he met with the vice chancellor of HR on two occasions, the situation was not resolved and he was ultimately terminated. He then sued, asserting claims for disparate treatment, hostile work environment, and failure to accommodate.

Disparate treatment. As to his disparate treatment claim, the employee contended that the university did not require any other employee to disclose vacation plans or obtain coworker consent in order to have his request granted. Pointing out that he was not denied any vacation leave, but rather was allegedly forced to take additional steps in order to obtain approval for his leave, the court found that this did not have any detrimental effect on his ability to take vacation. Finding that the most that could be inferred from the interim chief’s actions was an attempt to embarrass or harass the employee, the court determined that this was not enough to establish a prima facie case of religious discrimination.

Mixed-motive analysis. Nor was the employee’s attempt to assert that his discharge was motivated by hostility towards his religious beliefs any more successful. Citing the interim chief’s actions regarding his vacation leave and certain statements that were allegedly made by her and other coworkers, the employee argued that her hostility towards his religion motivated her decision to enforce the general order concerning the training and carrying of weapons, which ultimately led to his discharge. Here, the court found that while the interim chief originally chose to enforce the order, it was the new chief who ultimately chose to continue to enforce it and it was his decision to terminate the employee for failing to comply with the order. Because there was no evidence that the new chief’s actions were motivated by discrimination based on the employee’s religion, the court granted summary judgment on this claim.

HWE. The employee next claimed that the interim chief’s actions concerning his request for vacation leave and other “active provocations” fostered a HWE against him. Granting summary judgment on this claim, the court found that her actions, as well as another supervisor’s conduct in acting offensively towards him in relation to his refusal to participate in the training, the HR vice chancellor’s alleged comment that there would be no harm in carrying weapons and that she knew other Jehovah’s Witnesses and Christians who did not have objections to carrying weapons in relation to their work, and the posting of his scheduled training after he refused was not enough to show that the conduct was so extreme as to amount to a change in the terms and condition of his employment.

Reasonable accommodation. As to the employee’s reasonable accommodation claim, the university asserted that despite encouraging him to apply for another position and offering to assist him, he refused to apply for vacant jobs; instead he insisted that it was the employer’s responsibility to find him an acceptable position.  Without his assistance, the employer contended that it did not know what positions he was qualified for and therefore it was impossible to provide him with an accommodation. For his part, the employee argued that he believed there was a hiring freeze at the time and no vacant positions were available. He also asserted that the HR vice chancellor told him he had to resign from his current position in order to apply for a vacant position and he was skeptical of this.

Here, the court pointed out that while the university claimed to have offered the employee encouragement and assistance in applying for other positions, there was no offer for him to retain his tenure while looking for other jobs. Further, there was a dispute as to whether the employer actually did provide assistance in applying for other positions. Specifically, the employee asserted that the HR vice chancellor did not follow through on her offer to help. Thus, there was a fact dispute as to whether the alleged encouragement and assistance qualified as a reasonable accommodation.

Similarly, the court found that a fact issue existed regarding the university’s argument that the employee made it impossible to provide a reasonable accommodation. It was not clear from the evidence that he refused to cooperate or that any such failure made it impossible to provide him with such an accommodation. In addition to his assertion that he thought there was a hiring freeze and that the HR vice chancellor told him he needed to resign before applying for other positions, the court found it noteworthy that the employee had been employed with the university since 1994 and that it had a record of his prior positions and his employment documents, including his employment application. Thus, the court found, even if the employee did not apply for the vacant positions himself, it may have been possible for the employer to suggest certain positions or place him in a vacant position based on his personnel file and the descriptions of his past employment. Accordingly, a fact issue existed concerning whether the employee’s alleged inaction rendered the university’s ability to provide a reasonable accommodation impossible.

Undue hardship. Finally, the court rejected the employer’s contention that the employee’s request to be placed in a nonweapons position would have caused an undue hardship as the reclassification or creation of a new position would have required it to seek approval from the state HR office pursuant to state regulation. Observing that the employee stated he would be “more than happy to work in any area that would not jeopardize my spiritual conscience,” the court found that it did not appear that he only requested that his current position be reclassified or that a new position be created for him.

Moreover, while the employer admitted that other vacant positions did exist at the time of the employee’s discharge, it did not explain why placing the employee in one of those positions would have caused an undue hardship. Nor did it argue that the employee was not qualified for such positions. Instead, it argued that it could not determine whether or not he was qualified for such positions based on his personnel file. Here, the court again observed that it may have been possible for the employer to determine his qualifications, and therefore, it may have been possible for it to find a vacant position to which he could have been assigned.