UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60175
SANDRA M. BRUFF,
Plaintiff - Appellee-Cross-Appellent,
versus
NORTH MISSISSIPPI HEALTH SERVICES,
INC.; NORTH MISSISSIPPI MEDICAL
CENTER, INC.,
Defendants - Appellants-Cross-Appellees.
Appeal from the United States District Court
for the Northern District of Mississippi
March 28, 2001
Before POLITZ, SMITH, and PARKER, Circuit Judges.
POLITZ, Circuit Judge:
North Mississippi Health Services, Inc. and North Mississippi Medical Center,
Inc. appeal the trial court’s denial of judgment as a matter of law, contending that
whether accommodating religious beliefs constitutes an undue hardship, and whether
their accommodation was reasonable, are questions of law, not questions of fact for the
jury. They also appeal the jury’s verdict which awards Sandra Bruff back pay and
compensatory and punitive damages in her discrimination claim under 42 U.S.C. §
2000e, et seq. (“Title VII”). Bruff cross appeals the dismissal of her state law claims,
specifically contending that requiring her to counsel homosexuals, and those living in
extramarital relationships, about those relationships violated Mississippi sodomy laws,
thus making her termination wrongful under a public policy exception to her employed-
at-will status. She also appeals the denial of her motion for either reinstatement to her
former position or for front pay in lieu thereof. A thorough review of the record
persuades that we should reverse the judgment on the Title VII claims and affirm the
dismissal of Bruff’s state law claims.1
BACKGROUND
After graduating from the Reformed Theological Seminary in Jackson,
Mississippi, with a master’s degree in marriage and family counseling, Bruff was hired
as a counselor by North Mississippi Medical Center, Inc.,2 first as an adolescent
counselor, and eventually as a counselor in its Employee Assistance Program (“EAP”).
The Medical Center, a non-profit hospital in Tupelo, Mississippi, established the EAP
1
By consent, this case was tried before the Magistrate Judge.
2
North Mississippi Health Services, Inc. is the parent corporation of North
Mississippi Medical Center.
2
to provide counseling to the employees of various businesses in the region.
Bruff was one of three EAP counselors, one of whom also acted as the
program’s supervisor. Counseling sessions were held during and after regular business
hours in Tupelo and Oxford, Mississippi. Typically, only one counselor would travel
to a given location on each occasion.
Early in 1996 Bruff counseled a woman identified only as Jane Doe.3 Several
months later Doe returned for further counseling. At that time she informed Bruff that
she was a homosexual and she asked for help in improving her relationship with her
female partner. Bruff declined to counsel Doe on that subject, advising that
homosexual behavior conflicted with her religious beliefs, but offered to continue
counseling Doe on other matters.4 Another counseling session was scheduled but Doe
did not appear. Instead, she complained to her employer about Bruff’s actions and her
3
In order to maintain the confidentiality of the client company and its employees
seeking counseling, Jane Doe was never specifically identified during the trial
proceedings.
4
The Medical Center introduced evidence that professional counseling standards
of practice prohibit counselors from discriminating based upon sexual preferences,
while Bruff introduced evidence that the counseling rules of ethics require a counselor
to disclose to the patient any areas that the counselor is not qualified or capable of
counseling on, and that her actions with Doe were in conformance with those rules.
We take no position on what professional standards or ethics codes might require in the
field of counseling. Our inquiry here is strictly to what extent Title VII requires the
Medical Center to accommodate Bruff’s religious beliefs.
3
employer in turn complained to the Medical Center.
The supervisory counselor informed Bruff a complaint had been lodged and
arranged a meeting to explore the matter. In that meeting Bruff confirmed that she had
declined to counsel Doe on improving her homosexual relationship because doing so
would conflict with her religious beliefs. Bruff was then directed, per company policy,
to put in writing exactly what aspects of her counseling responsibilities she wanted to
be excused from. Bruff wrote a letter asking that she “be excused from . . . actively
helping people involved in the homosexual lifestyle to have a better relationship with
their homosexual partners. This would also include helping persons who have a sexual
relationship outside of marriage have a better sexual relationship.” She added that her
problem was not with counseling the person per se, but only with providing assistance
in improving the homosexual or extra-marital relationship.
In response to this letter Medical Center management met several times to
determine if Bruff’s request could be accommodated by shifting responsibilities among
the three EAP counselors. Eventually it was determined such an accommodation was
not feasible. Management then gave her a letter denying her request, stating
“Individuals being seen in accordance with all of our EAP contracts obligates us to
treat a wide variety of psychiatric disturbances and clinical issues. Our EAP contracts
with our customers do not exclude certain categories or issues for individuals with
4
certain types of issues. You also are not able to determine specific patient care issues
in advance. Your request could create an uneven distribution of patient work load.”
The letter also raised a concern that her request to continue treating an individual on
some issues while declining to treat others might violate established ethical provisions,
and they suggested that she contact the Mississippi Board of Examiners for Licensed
Professional Counselors. After the meeting Bruff was relieved of her counseling
responsibilities and placed on leave without pay.
Bruff appealed this decision to a vice president of the Medical Center who asked
whether there would be any other situations when Bruff would not want to counsel a
person. Bruff responded that she would not be willing to counsel anyone on any
subject that went against her religion. When the possibility of transferring from the
EAP to a section specifically performing pastoral or Christian counseling was discussed
she demurred, opining that the head of that section held religious views that were more
liberal than hers, and that he likely would not tolerate her conservative perspective.
Based upon Bruff’s letter and their discussion, the Medical Center’s vice
president wrote Bruff affirming the decision to deny her request to counsel only on
topics that did not conflict with her religion. In his letter the vice president referenced
the small size of the EAP staff; the travel and extended hours the counselors must
work; the inability to determine beforehand when a trait or topic might arise that would
5
require referring the employee to another counselor, thus requiring either multiple
counselors to travel, or scheduling additional counseling sessions at another time; and
the additional sessions that introducing a new counselor might require to build the trust
relationship necessary to be effective. He underscored that the logistics of
accommodating her request would cause an undue hardship upon the Center, its clients,
and the other EAP counselors.
After affirming the denial of Bruff’s request, the vice president offered her three
options: (1) reconsider her request for accommodation; (2) request a transfer to another
position or department in which conflict of care issues were less likely to occur; or (3)
resign her position. If she decided to request a transfer, she would be given 30 days
to secure another position before she would be terminated.
The Medical Center contacted its in-house employment counselor and asked her
to assist Bruff in locating another position within the hospital system. The counselor
showed Bruff a list of available openings, and offered her the opportunity to take two
tests designed to manifest her aptitudes and interests. Bruff declined to take the tests
or to apply for any non-counselor position.5
5
The list the employment counselor showed Bruff included several positions
outside of the counseling field that would have allowed her to remain in the hospital
system, thus retaining her benefits and the ability to apply, on a preferential basis, for
a transfer to another counselor position when it became available. Those non-counselor
positions, however, generally paid between $7 and $8 an hour, whereas she had been
6
On the day she met with the employment counselor Bruff applied for the position
of Psychiatric Assessment Counselor in the Behavioral Health Department, the only
counselor opening available at that time. Medical Center policy called for giving
current employees 48 hours notice of position vacancies before posting those vacancies
with the public, and guaranteeing an interview to current employees who met the
minimum position requirements and who applied within that 48 hours. The Psychiatric
Assessment Counselor position, however, had already been posted with the public at
that point. The record reflects that Bruff’s application was considered but another
applicant with superior credentials was selected.6
While this application was pending, another counselor position became available;
however, Bruff chose not to apply.7 The 30 day continued employment period lapsed
making over $16 an hour as an EAP counselor. Bruff testified she declined the aptitude
and interests tests because she already knew what her interests and skills were, i.e.,
counseling.
6
The successful applicant had a Ph.D. in a relevant field, as well as marketing
experience. Bruff had neither.
7
Bruff testified that the employment counselor promised to call her when a
counseling position became available. She stated that she became aware of the
additional opening but did not apply because she felt that if there was any chance of her
getting the position the employment counselor would have contacted her. The
counselor testified that she told all employees seeking assistance that she was there as
a resource, but the responsibility to search was theirs. She posted updated job opening
lists three times a week but did not call anyone to advise them of openings, due to the
large number of employees in the system.
7
and Bruff’s employment was terminated. The head of the Behavioral Health
Department, when placing the notice of termination in Bruff’s file, noted that he would
not consider rehiring her for the EAP.
Bruff then filed a complaint with the Equal Employment Opportunity
Commission. The EEOC concluded its investigation without action, notifying Bruff
that she had 90 days to file suit if she so desired. The instant action followed.
The matter was tried to a jury, which found that the Medical Center had
discriminated against Bruff because of her religious beliefs, that it had not made a
reasonable accommodation for those beliefs, and that it had acted with malice or
reckless indifference. The jury awarded her $32,738.44 in back pay; $326,000.00 in
compensatory damages; and $1,700,000.00 in punitive damages. The trial judge,
acting under 42 U.S.C. § 1981a(b)(3)(D), reduced the total compensatory and punitive
damages to the statutory maximum of $300,000.00. Back pay is not included in the
statutory cap. Bruff’s state law claims, which would not have been subject to a similar
cap, previously had been dismissed on a motion for directed verdict.
The parties filed several post-trial motions, all of which were denied. The
Medical Center and its parent appeal both the trial court’s denial of its motion for
judgment as a matter of law, and the jury’s adverse verdict. Bruff cross-appeals the
dismissal of her state law claims, and the denial of her motion for reinstatement, or
8
alternatively, front pay in lieu thereof.
ANALYSIS
We first look at the denial of the Medical Center’s motion for judgment as a
matter of law, reviewing the denial using the same test used by the trial court:
The Court should consider all of the evidence – not just that evidence
which supports the non-mover’s case – but in the light and with all
reasonable inferences most favorable to the party opposed to the motion.
If the facts and inferences point so strongly and overwhelmingly in favor
of one party that the Court believes that reasonable men could not arrive
at a contrary verdict, granting of the motion is proper. On the other hand,
if there is substantial evidence opposed to the motion, that is, evidence of
such quality and weight that reasonable men in the exercise of impartial
judgment might reach different conclusions, the motion should be denied
. . . .8
Appellants do not contest that Bruff established her prima facie case of religious
8
Wardlaw v. Inland Container Corporation, 76 F.3d 1372, 1375 (5th Cir.
1996)(quoting Boeing v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969)(en banc)).
9
discrimination under Title VII;9 therefore, the burden shifts to them to show why
accommodating her religious beliefs as requested, i.e., allowing her to remain an EAP
counselor while only counseling on subjects that do not conflict with her religion,
would cause them an undue hardship, or that they have offered an alternative
reasonable accommodation to resolve the conflict.10 Based upon the facts of this case
we deem it appropriate to examine each in turn.
Accommodation can take place in two fundamental ways: (1) an employee can
be accommodated in his or her current position by changing the working conditions,
or (2) the employer can offer to let the employee transfer to another reasonably
comparable position where conflicts are less likely to arise.
I Retention as an EAP counselor
The Medical Center contends that retaining Bruff in her position as an EAP
counselor would cause an undue hardship. The Supreme Court, in Trans World
9
A prima facie case of religious discrimination is established when an employee
can show that: (1) he or she had a bona fide religious belief that conflicted with an
employment requirement; (2) the employer was informed of that belief; and (3) the
employee was discharged for failing to comply with the conflicting employment
requirement. Weber v. Roadway Express, 199 F.3d 270 (5th Cir. 2000). The sincerity
of Bruff’s beliefs has never been questioned.
10
42 U.S.C. § 2000e(j).
10
Airlines v. Hardison,11 opined that an undue hardship exists, as a matter of law, when
an employer incurs anything more than a de minimis cost to reasonably accommodate
an employee’s religious beliefs.
As earlier noted, the evidence established that the Medical Center employed
three counselors in its EAP program, one of whom handled supervisory duties in
addition to her counseling responsibilities. Thus, any request by Bruff to refer all
subjects desiring to be counseled on something that she felt conflicted with her religious
beliefs meant, necessarily, that one of the remaining two counselors must assume that
responsibility.12 This might be accomplished by the other counselors either voluntarily
assuming a disproportionate workload, or trading counseling assignments with Bruff,
on a quid pro quo basis, if available.
Voluntarily accommodating the preferences of other counselors was accepted
practice at the EAP, and the record reflects that one of the other EAP counselors
disliked counseling young children. She requested that she not be given such
assignments, and Bruff and the other counselor agreed to assume that responsibility
11
432 U.S. 63 (1997).
12
Bruff does not contend, nor does the record suggest, that under its counseling
contracts the Medical Center could merely decline to counsel individuals on certain
subjects. Nor would hiring additional counselors be reasonable, given the obvious
additional cost.
11
whenever possible; however, when neither of them could accommodate her preference
the original counselor would counsel the child.
Bruff does not suggest that her request for accommodation was similarly flexible;
instead, she contends that under Title VII the Medical Center must excuse her from
counseling on all subjects of concern at all times. Furthermore, unlike traditional
requests for religious accommodation which merely seek to rearrange an employee’s
schedule, Bruff determined that she would not perform some aspects of the position
itself, and her testimony makes it abundantly clear that she was aware of that before
applying for the position. Bruff testified that when she initially applied to be an EAP
counselor she assumed she would have to counsel homosexuals, but she also assumed
she could refer such individuals when they sought counseling on their relationships.
Nothing in the record reflects that she raised this issue with her interviewer, or explored
how any such conflicts with her religious beliefs could, in fact, be accommodated.
Instead, she apparently assumed she would only have to perform those aspects of the
position she found acceptable. Title VII does not require an employer to accommodate
such an inflexible position.13
Appellants contend, and the record supports, that given the size of the EAP staff,
13
See Weber, 199 F.3d at 275 (finding secular, flexible exceptions to be de
minimis, whereas inflexible religious exceptions affecting other employees are not).
12
the area covered by the program and the travel involved, and the nature of
psychological counseling incorporating trust relationships developed over time, any
accommodation of Bruff in the EAP counselor position would involve more than de
minimis cost to the Medical Center. Requiring one or both counselors to assume a
disproportionate workload, or to travel involuntarily with Bruff to sessions to be
available in case a problematic subject area came up, is an undue hardship as a matter
of law.14 Requiring the Center to schedule multiple counselors for sessions, or
additional counseling sessions to cover areas Bruff declined to address, would also
clearly involve more than de minimis cost.15
The trial court, in denying the Medical Center’s motion for a directed verdict,
acknowledged these as possible hardships to the Medical Center, but found them to be
speculative and theoretical. We do not agree. Title VII does not require an employer
to actually incur accommodation costs before asserting that they are more than de
14
Weber, 199 F.3d at 274 (“The mere possibility of an adverse impact on co-
workers . . . is sufficient to constitute an undue hardship.”). See also Brener v.
Diagnostic Center Hospital, 671 F.2d 141 (5th Cir. 1982)(same).
15
There was also testimony that substituting counselors would have a potential
negative impact upon those being counseled. While adding weight to our decision, we
feel the logistical and economic impact on the Medical Center and the other counselors
alone establishes, as a matter of law, that accommodating Bruff would result in more
than de minimis cost.
13
minimis.16 Further, this situation did not arise from speculation, but from actual
experience with Jane Doe and the subsequent concern raised by her employer that other
homosexual employees might decline to seek such counseling as a result.
As evidenced by the letter to Bruff initially denying her request, the counseling
contracts between the Medical Center and its client companies do not limit the scope
of the areas subject to counseling. Considering that Bruff’s expressed requirement to
be excused from counseling on any subjects that might conflict with her religious
beliefs essentially would give her unlimited authority to determine what those conflicts
are, and when she must be accommodated, more conflicts would appear to be givens.
II Transfer to another counselor position
Title VII does not restrict an employer to only those means of accommodation
that are preferred by the employee.17 Once the Medical Center establishes that it
16
See Weber, 199 F.3d at 274-5 (proposed accommodations can be evaluated as
to cost and impact without waiting for them to be implemented, or even waiting for a
conflict to occur). The instant action was tried before Weber; thus, the trial judge did
not have that opinion for guidance.
17
Ansonia Board of Education v. Philbrook, 479 U.S. 60, 68 (1986)(“By its very
terms the statute directs that any reasonable accommodation by the employer is
sufficient to meet its accommodation obligation.”). See also Equal Employment
Opportunity Commission v. Universal Manufacturing Corp., 914 F.2d 71, 73 (5th Cir.
1990)(“Offered an accommodation [that is reasonable], the employee cannot insist
upon a specific or more beneficial one.”); and Eversley v. MBank Dallas, 843 F.2d
172, 176 (5th Cir. 1988)(same).
14
offered Bruff a reasonable accommodation, even if that alternative is not her
preference, they have, as a matter of law, satisfied their obligation under Title VII.
The Medical Center contends that its offer to give Bruff 30 days, and the
assistance of its in-house employment counselor, to find another position at the Center
where the likelihood of encountering further conflicts with her religious beliefs would
be reduced fulfilled its obligations to offer her a reasonable accommodation. We agree.
In her brief Bruff erroneously cites Riel v. Electronic Data Systems, Inc.18 as
authority for her contention that “by definition, giving one the same opportunities as are
available to all other persons is not an ‘accommodation.’” Riel, which is an ADA case,
noted that most discrimination statutes preclude treating persons differently, whereas
the ADA, by requiring reasonable accommodation of a person’s disabilities, “shifts
away from similar treatment to different treatment . . . .”19 In addition to the
distinctions between the definitions of “reasonable accommodation” and “undue
hardship” found in the ADA and those developed by the cases under Title VII,20 Bruff
18
99 F.3d 678 (5th Cir. 1996).
19
Id. at 681.
20
Compare e.g., 42 U.S.C. § 12111(10)(A)(“[Under the ADA] the term ‘undue
hardship’ means an action requiring significant difficulty or expense[.]”); with
Hardison, 432 U.S. at 84 (under Title VII anything more than de minimis expense is
an undue hardship).
15
confuses different treatment with preferential treatment. Here, it was giving Bruff the
opportunity to transfer once she stated she would not perform all aspects of her job
description, instead of simply terminating her as an at-will employee refusing to fulfill
her job responsibilities, that served to treat her differently from other employees
because her actions were protected by Title VII.
When the Medical Center gave Bruff 30 days to find another position, it also
alerted its in-house employment counselor to the situation and directed that Bruff be
given assistance in that effort.21 The record reflects that Bruff was advised of, and
applied for, another counselor position. Although she was not successful, the Medical
Center was not obligated to give Bruff preference over others with superior credentials
when filling the Psychiatric Assessment Counselor position.22 Bruff was also advised
21
On September 5, 1996, just weeks before the events at issue here took place, the
decision in Howard v. North Mississippi Medical Center, 939 F. Supp. 505 (N.D. Miss.
1996), was filed. Howard was an ADA case involving the Medical Center and a
plaintiff represented by the same counsel representing Bruff. In that opinion Chief
Judge Senter found that the 30 day transfer policy utilized by the Medical Center,
including the assistance of the in-house employment counselor, was a reasonable
accommodation under the ADA. Id. at 510. While that opinion does not bind us here,
we believe the Medical Center was certainly reasonable in believing that, based on
Howard, it was complying with the requirements of Title VII by offering Bruff the same
opportunity it afforded Howard under the ADA.
22
It is axiomatic that preferential treatment involves discriminating against one in
favor of another, which, in the context of religion, is exactly the conduct proscribed by
Title VII. An employer cannot give preference to an employee because of his or her
religion any more than it can discriminate against that employee for the same reason.
16
of other available positions, which she declined to apply for, as well as the availability
of tests that might illuminate whether positions she might not otherwise consider might
be of interest.23 She declined to even consider a transfer to the pastoral counseling
department because she speculated there might be a personal conflict with its director.
It is not clear from the record that there was, in fact, an opening available in the
pastoral counseling department when the option was proffered. Of importance here,
however, is the fact that Bruff refused to even consider that option before the existence
of a vacancy could be explored. Similarly, her testimony that she declined to apply for
the second counselor position when she learned of that opening, because she didn’t
think the Medical Center would seriously consider her, was based upon pure
speculation. An employee has a duty to cooperate in achieving accommodation of his
See e.g., Hardison, 432 U.S. at 81(“It would be anomalous to conclude that by
‘reasonable accommodation’ Congress meant that an employer must deny [the rights]
of some employees 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.”).
23
As previously noted, these non-counselor positions would have required Bruff
to take a significant reduction in salary. This alone, however, does not make the
accommodation unreasonable. See e.g., Hardison, 479 U.S. at 373 (requiring employee
to take unpaid leave to observe religious practices was reasonable); and Eversley, 843
F.2d at 176 (“[S]imply because the proposed accommodation would involve some cost
to the employee does not make it unreasonable.”)(citing Hardison).
17
or her religious beliefs, and must be flexible in achieving that end.24 Bruff displayed
almost no such cooperation or flexibility.
Bruff contends that, in any event, whether the Medical Center’s transfer offer
was reasonable or not is a jury question, which the trial judge and this court should not
disturb. Ordinarily, that might be the case.25 Here, however, the facts and inferences
point so strongly and overwhelmingly in favor of the Medical Center that reasonable
men could not arrive at a contrary verdict, and denial of the motion for judgment as a
matter of law was error.
III Bruff’s State Law Claims
Bruff contends that by asking her to counsel clients on improving homosexual
or extramarital relationships, Appellants were asking her to violate Mississippi state
sodomy laws which make certain sexual acts unlawful. Nothing in the record suggests
24
See, e.g., Brener, 671 F.2d at 145-46 (“The cases confirm what the statute’s use
of the term “reasonable” suggests: bilateral cooperation is appropriate in the search for
an acceptable reconciliation of the needs of the employee’s religion and the exigencies
of the employer’s business.”). Because there was som e conflicting testimony as to
whether Bruff or the employment counselor was responsible for ensuring that Bruff was
made aware of all vacancies that came open after their initial meeting, and because in
this analysis we must consider all evidence in the light most favorable to Bruff, we do
not find that her subsequent failure to check the updated vacancy lists displayed a lack
of cooperation on her part.
25
Universal Manufacturing, 914 F.2d at 73 (“Ordinarily, questions of
reasonableness are best left to the factfinder.”).
18
that she, or any other counselor, was ever asked to counsel anyone on the performance
of sexual acts, nor that she ever raised any such concern with anyone. We find that
argument specious, and we agree with the trial court that this is strictly a Title VII
religious discrimination case. Accordingly, we affirm the trial court’s dismissal of
Bruff’s state law claims.
CONCLUSION
The evidence, considered in the light most favorable to Bruff, clearly established
that requiring the Medical Center to accommodate her while retaining her in the
position of EAP counselor would involve more than de minimis cost and therefore is,
as a matter of law, an undue hardship. Further, the Medical Center’s offer to give Bruff
30 days to transfer to another position where conflict of care issues were less likely to
arise was beyond peradventure a reasonable accommodation. Accordingly, the trial
court erred in denying Appellants’ Motion for Judgment as a Matter of Law.
For those reasons, the judgment of the trial court on Bruff’s state law claims is
AFFIRMED. The judgment on her Title VII claims is REVERSED, and judgment is
RENDERED herein for Defendants/Appellants dismissing Bruff’s demands with
prejudice.26
26
Because of our rulings here, we need not reach the remaining issues on appeal.
19
20