It is undisputed that MCI extended an offer to Gordon through Fiore on April 6, 1989, that MCI never formally "withdrew" the offer and that Gordon declined to accept the position as offered. However, viewing the facts in the light most favorable to Gordon, it is possible to infer that MCI's offer was withdrawn by MCI's indication that it was not possible to compromise its terms.
According to Gordon's affidavit and deposition testimony, MCI's offer was conditioned on Gordon's presence at work until 5:30 p.m. every Friday throughout the year. Gordon's unrebutted assertion is that both Fiore and Lindower indicated that MCI would not be able to compromise the attendance requirement, leaving it up to Gordon to compromise her practices if she wanted the position. See, e.g., Gordon Aff. PP2, 5, 7. A reasonable trier of fact could reasonably infer that MCI refused to hire Gordon unless she complied with the Friday attendance requirement.
MCI's attempt to suggest that it would have explored possible accommodations is unsupported by any evidence that MCI contemplated any compromise. Giving the benefit of the doubt to Gordon, Lindower never even attempted to ascertain information that would be relevant to possible accommodations, such as the details of Gordon's Sabbath observance needs. Finally, MCI's assertion that Gordon's failure to suggest any accommodations impugns her ability to make a prima facie case is without merit. Although an employee has the duty to cooperate with an employer's efforts at accommodation, see Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 69, 93 L. Ed. 2d 305, 107 S. Ct. 367 (1986); Toledo, 892 F.2d at 1488, "Title VII complainants are under no burden to propose to their employers specific means of accommodating their religious practices." Brener v. Diagnostic Ctr. Hosp., 671 F.2d 141, 145 (5th Cir. 1982); see Toledo, 892 F.2d at 1488 (employer bears statutory burden to accommodate; employee's duty to cooperate is irrelevant until employer satisfies its initial obligation).
The facts as presented on this motion would support the inference that MCI refused to hire Gordon unless she agreed to work until 5:30 every Friday throughout the year. By its terms, MCI's offer forced Gordon to choose between her religious beliefs and practices, thereby vitiating its very existence for purposes of Title VII. Cf. Philbrook, 757 F.2d at 482-83 (suggesting that Title VII protects against just such an ultimatum). Gordon has therefore raised facts upon which a reasonable trier of fact could conclude that she has established a prima facie case.
B. Undue Hardship
In the alternative, MCI contends that it is entitled to summary judgment because it could not reasonably accommodate Gordon's Sabbath observance practices without incurring "undue hardship" in the form of: (1) decreased efficiency in the operation of the Human Resources Department; (2) added financial costs; and (3) preferential treatment of Gordon at the expense of other MCI employees.
If substantiated by facts, MCI's assertion that accommodating Gordon's Sabbath observance would cause lost efficiency, financial expense and preferential treatment could support its claim of undue hardship. Although the term "undue hardship" is not defined in Title VII, the Supreme Court has held that an accommodation that results in an imposition on other workers or requires an employer to bear more than de minimis costs in terms of money or efficiency creates an undue hardship. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84, 53 L. Ed. 2d 113, 97 S. Ct. 2264 (1977). At the same time, "'an employer does not sustain his burden of proof merely by showing that an accommodation would be bothersome to administer or disruptive of the operating routine.'" Smith v. Pyro Mining Co., 827 F.2d 1081, 1085 (6th Cir. 1987) (quoting Draper v. United States Pipe & Foundry Co., 527 F.2d 515, 520 (6th Cir. 1975), cert. denied, 485 U.S. 989 (1988)).
Whether accommodating an employee's religious practices would cause an employer undue hardship must be determined based on "the particular factual context of each case." See E.E.O.C. v. Universal Mfg. Corp., 914 F.2d 71, 74 (5th Cir. 1990); Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1243 (9th Cir.), cert. denied sub nom., United Steelworkers of America v. Tooley, 454 U.S. 1098, 70 L. Ed. 2d 639, 102 S. Ct. 671 (1981). An employer must present evidence of actual undue hardship and may not rely on speculation or "hypothetical hardship." Toledo, 892 F.2d at 1481; Smith, 827 F.2d at 1086; Philbrook, 757 F.2d at 484. Courts have found undue hardship where, for example, the evidence established that accommodating the plaintiff's religious needs would result in denying the needs, rights or preferences of other employees, e.g., Hardison, 432 U.S. at 80-81; Eversley v. MBank Dallas, 843 F.2d 172, 176 (5th Cir. 1988) (undue hardship to require employer to force employees to switch shifts permanently to accommodate another employee's Sabbath observance), or would involve additional costs to the employer in the form of lost efficiency in other jobs or higher wages, Hardison, 432 U.S. at 84-85. While it is "conceivable" that an employer could carry its burden of proving undue hardship where no attempts were made at accommodation, "such situations will also be rare." Toledo, 892 F.2d at 1481.
MCI cites what it apparently contends is the universe of conceivable ways in which it could accommodate Gordon's Sabbath observance needs, maintaining that any of these alternatives would cause undue hardship within the meaning of Hardison and its progeny. Specifically, MCI claims that hiring a temporary worker to cover Gordon's missed hours on Fridays would result in inefficiency, financial cost and employee discontent; delegating Gordon's duties to another MCI employee during those hours would work a preference in favor of Gordon on the basis of religion and would disrupt the operation of the department; and allowing Gordon to "make up" the missed hours by working overtime at other points during the week would be ineffective because the Staff Assistant's attendance on Friday afternoons is crucial. To evaluate this claim, it is necessary to review the Staff Assistant's specific responsibilities as well as the details of Gordon's Sabbath observance needs.
The Staff Assistant position entails the performance of ten duties. In addition to the bi-weekly payroll distribution and payroll dispute resolution functions, the Staff Assistant is responsible for, among other things, processing, inputting and editing employee data in the Human Resources Information System; maintaining employee personnel records; and administering workers compensation and disability programs. MCI Ex. 1 (Staff Assistant "Job Posting"). According to Simboli, data entry accounts for approximately 40% of the Staff Assistant's day, and maintaining employee records accounts for at least 20% of his or her time. Simboli Dep. 55-56, 65. While it must be done daily, data entry can be done at any time of the day, including before or after hours. Id. at 55-56. With the exception of payroll-related functions, none of the Staff Assistant's duties require attention on any specific day of the week. See id. at 66-74. With respect to payroll-related functions, Simboli typically spent one hour distributing paychecks on alternate Thursday afternoons, and devoted late "payroll Thursday" afternoons, "payroll Fridays" and sometimes the early days of the following week to reconciling payroll disputes. Id. at 56-57, 117-19. Although she "may have worked a little bit of overtime" on paydays, she does not recall ever working overtime on a Friday. Id. at 99.
In April 1989, the Human Resources Department was staffed by a Manager, a Staff Generalist and a Staff Assistant, each of whom performed discrete functions. These employees were not "cross-trained" to perform each other's functions. Britt Aff. P4. Only the Manager and the Staff Assistant had computer access to MCI's payroll system. According to MCI, "there were many occasions when the Staff Assistant would have to spend most of the day on Fridays following payday resolving [payroll disputes]." Lindower Aff. P1; see also Britt Aff. P7. MCI asserts that it is essential to resolve these disputes quickly because of the effect of paycheck discrepancies on employee morale. Britt Aff. P8.
Gordon's Sabbath observance practice would necessitate her early departure on thirteen "payroll" Fridays. Depending on the time of sundown on a given Friday, she would have to leave between 45 minutes and three hours before MCI's close of business at 5:30 p.m. Gordon Aff. P9.
Gordon's religion does not prevent her from working her full schedule on other days of the week, from working after hours any day other than Friday or from working before hours any day, including Friday.
Understandably, Gordon has submitted no evidence to rebut MCI's characterization of the Staff Assistant's duties. Nevertheless, drawing every inference in Gordon's favor, MCI has failed to carry its burden of proving that accommodating Gordon's Sabbath observance practices would cause it to suffer undue hardship. It has not presented facts necessary to evaluate the potential hardship that would flow from any of its "proposed" accommodations. Most significantly, MCI has submitted no evidence proving that payroll disputes actually arose or demanded immediate attention after 2:30 p.m. on Fridays or, if so, how frequently.
The affirmations of Lindower and Britt that payroll resolution often took most of the day on Fridays is simply not specific enough for a trier of fact to conclude that Gordon's departure 45 minutes to three hours prior to MCI's closing time would result in "undue hardship," or any hardship at all.
For example, without evidence of the actual demands placed on the Staff Assistant from 2:30 p.m. to 5:30 p.m. on Fridays, it is not possible to evaluate the alleged loss in efficiency that MCI would suffer if it hired a temporary worker to cover the time missed by Gordon. Even assuming the truth of MCI's assertion that a temporary worker could not perform the Staff Assistant's payroll or data inputting functions, any claim of lost efficiency remains speculative in the absence of evidence that the Staff Assistant was actually called upon to perform such functions in the late afternoon on Fridays.
Likewise, lacking such evidence, it is not possible to evaluate whether having another MCI employee cover those hours would affect the efficiency of the department or impinge on the other duties for which that employee was responsible. The absence of this evidence also precludes assessment of the possibility that overtime work by Gordon would have compensated for her absences. Finally, MCI's claim that it would incur undue hardship in the form of the financial expense necessary to hire a temporary worker, if doing so were even feasible, is unsupported in fact. MCI has presented no evidence of the actual cost of hiring necessary coverage, compare Brener, 671 F.2d at 144 (testimony on record established that minimum cost to hire substitute would have been $ 14,000 per year), and has not taken into consideration the possibility that Gordon might have been willing to forego payment for any hours missed, thus defraying or possibly eliminating altogether any additional cost.
In view of these material issues of fact, MCI has failed to establish that, as a matter of law, accommodating Gordon's Sabbath observance practices would cause it to incur undue hardship. MCI's motion for summary judgment is therefore denied.
For the foregoing reasons, MCI's motion for an order granting summary judgment and dismissing the complaint is denied.
It is so ordered.
New York, N.Y.
June 5, 1992
ROBERT W. SWEET