In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3371
MELVIN D. REED,
Plaintiff-Appellant,
v.
THE GREAT LAKES COMPANIES, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00-C-1617—Rudolph T. Randa, Chief Judge.
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ARGUED FEBRUARY 12, 2003—DECIDED MAY 30, 2003
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Before BAUER, POSNER, and RIPPLE, Circuit Judges.
POSNER, Circuit Judge. Melvin Reed, the plaintiff in this
Title VII religious-discrimination suit, appeals from the
grant of summary judgment to his former employer, Great
Lakes, and from the imposition of sanctions on him. His
lawyer wants the $500 sanction imposed on her also re-
versed, but she failed to file a notice of appeal and the no-
tice of appeal that she filed on behalf of Reed does not
mention her sanction. Although Fed. R. App. P. 3(c)(4)
provides that an appeal should not be dismissed “for failure
to name a party whose intent to appeal is otherwise clear
from the notice [of appeal],” the lawyer’s intent to appeal is
2 No. 02-3371
not clear from the notice of appeal—indeed is not so much
as hinted at in it—and as a result we lack jurisdiction over
her challenge to the sanction that was imposed on her. Bogle
v. Orange County Board of County Commissioners, 162 F.3d
653, 660-61 (11th Cir. 1998); Maerki v. Wilson, 128 F.3d 1005,
1007-08 (6th Cir. 1997); Agee v. Paramount Communications,
Inc., 114 F.3d 395, 399 (2d Cir. 1997); compare Spain v.
Board of Education, 214 F.3d 925, 929 (7th Cir. 2000); Laurino
v. Tate, 220 F.3d 1213, 1218 (10th Cir. 2000).
Construed as favorably to Reed as the record permits, the
facts of the case are as follows. He was hired to be the
executive housekeeper of a newly opened Holiday Inn that
Great Lakes operates in Milwaukee. One of his duties was
to see to it that a copy of the Bible, supplied free of charge
to the hotel by the Gideons, was placed in every room. It
is customary for representatives of management to meet
with the Gideons when they deliver Bibles to a newly
opened hotel. Reed had been working for Great Lakes for
less than a month when the Gideons showed up to deliver
the Bibles. A few days before their scheduled arrival, the
manager of the Holiday Inn had told Reed in a joking
manner that they were going to “pray with the Gideons,”
which Reed understood to mean that, given his responsibil-
ity for the distribution of the Bibles to the rooms, he was
to accompany the manager to the meeting at which they
would receive the Bibles from the Gideons. Reed did
not object to attending the meeting. But, to the manager’s
surprise, at the meeting the Gideons, besides delivering
Bibles, did some Bible reading and some praying. Reed
was offended by the religious character of the meeting and
left in the middle, to the manager’s chagrin. Later in the
day, the manager ran into Reed and told him: “Don’t do
that again, you embarrassed me.” Reed riposted: “You
can’t compel me to a religious event,” to which the man-
ager replied that Reed would do what he was told to do.
No. 02-3371 3
Reed responded, “Oh, hell no, you won’t, not when it comes
to my spirituality,” whereupon the manager fired him for
insubordination.
Oddly, Reed at his deposition refused to indicate what
if any religious affiliation or beliefs (or nonbeliefs) he has;
refused even to deny that he might be a Gideon! His
position was that Title VII forbids an employer to require
an employee to attend a religious meeting, period.
Title VII does forbid an employer, unless it is a religious
organization, 42 U.S.C. § 2000e-1; Corporation of Presiding
Bishop v. Amos, 483 U.S. 327, 329-30 (1987), which Great
Lakes is not, to discriminate against an employee on the
basis of the employee’s religion. 42 U.S.C. § 2000e-2(a)(1).
And for these purposes, as assumed by the parties, as
strongly intimated in EEOC v. Townley Engineering & Mfg.
Co., 859 F.2d 610, 613-14 n. 5 (9th Cir. 1988), and Young
v. Southwestern Savings & Loan Ass’n, 509 F.2d 140, 142
(5th Cir. 1975), and as supported by analogy to cases un-
der the free-exercise clause of the First Amendment, County
of Allegheny v. American Civil Liberties Union, 492 U.S. 573,
589-90 (1989); Wallace v. Jaffree, 472 U.S. 38, 52-53 (1985);
Books v. City of Elkhart, 235 F.3d 292, 307 (7th Cir. 2000)
Warner v. Orange County Dep’t of Probation, 173 F.3d 120, 120-
22 (2d Cir. 1999)—cases which hold that religious freedom
includes the freedom to reject religion—“religion” includes
antipathy to religion. And so an atheist (which Reed may
or may not be) cannot be fired because his employer dis-
likes atheists. If we think of religion as taking a position
on divinity, then atheism is indeed a form of religion.
But there is no indication that Reed was fired because
of his religious beliefs, identity, or observances or because
of his aversion to religion, to Christianity, or to the Gideons,
whatever the case may be (remember that we don’t know
anything about his religion or lack of religion). Great Lakes
4 No. 02-3371
accepts Bibles from the Gideons because the Bibles are free,
not because any of Great Lakes’ owners or managers,
including the manager of the Holiday Inn who fired Reed,
is a Gideon. So far as appears, none is. The manager’s joking
reference to “pray[ing] with the Gideons” makes it pretty
clear that he is not one of them; anyway there is no con-
tention that he is. For that matter, there is no evidence
that he expected to encounter prayers and Bible reading
at the meeting with them. At previous such meetings the
Gideons had handed over the Bibles and the manager had
thanked them, and that was that. The religious service
was a surprise. It is apparent that the manager fired Reed
because Reed’s sudden departure from the meeting was
embarrassing to the manager, who would be in trouble with
his superiors if the Gideons became huffy and cut off
the supply of free Bibles to Great Lakes hotels, and also
because Reed’s refusal to see the manager’s point of
view indicated that he was unlikely to be a cooperative
employee.
The manager must have been indifferent to Reed’s reli-
gious views, because Reed never expressed them to the
manager; to this day we do not know what his religion is,
as he refused to say at his deposition. It is difficult to
see how an employer can be charged with discrimination
on the basis of an employee’s religion when he doesn’t
know the employee’s religion (or lack thereof, which, as we
have noted, is in the eyes of the law a form of religion),
O’Connor v. Northshore Int’l Ins. Services, 325 F.3d 73, 74
(1st Cir. 2003) (per curiam); Lubetsky v. Applied Card System,
Inc., 296 F.3d 1301, 1305-06 (11th Cir. 2002), though the
employee can survive summary judgment if, while de-
clining to specify his religious beliefs, he attests that they
differ from his employer’s and that that is why he was fired.
Venters v. City of Delphi, 123 F.3d 956, 972 (7th Cir. 1997);
No. 02-3371 5
Shapolia v. Los Alamos Nat’l Laboratory, 992 F.2d 1033, 1037
(10th Cir. 1993).
Reed has utterly failed to make a prima facie case of
intentional religious discrimination. But he has another
string to his bow. Besides forbidding intentional discrim-
ination, Title VII requires an employer to try to accommo-
date the religious needs of its employees, that is, to try to
adjust the requirements of the job so that the employee
can remain employed without giving up the practice of
his religion, provided the adjustment would not work
an undue hardship on the employer. 42 U.S.C. § 2000e(j);
Ansonia Board of Education v. Philbrook, 479 U.S. 60, 70 (1986);
Anderson v. U.S.F. Logistics (IMC), Inc., 274 F.3d 470, 475
(7th Cir. 2001); Cosme v. Henderson, 287 F.3d 152, 158 (2d
Cir. 2002); Shelton v. University of Medicine & Dentistry,
223 F.3d 220, 224 (3d Cir. 2000). And again for these pur-
poses hostility to religion counts as a form of religion. So if
attending a meeting at which Gideons might pray or read
from the Bible would offend Reed’s religious or antireli-
gious sensibilities, he might be entitled to an accommoda-
tion.
We say “might be” rather than “would be” for two
reasons. First, the duty to accommodate is not absolute; the
cost to the employer must be considered. Ansonia Board
of Education v. Philbrook, supra, 479 U.S. at 70; Rodriguez
v. City of Chicago, 156 F.3d 771 (7th Cir. 1998) (majority and
concurring opinions); Ryan v. United States Dep’t of Justice,
950 F.2d 458, 461-62 (7th Cir. 1991); Daniels v. City of
Arlington, 246 F.3d 500, 506 (5th Cir. 2001); Shelton v. Univer-
sity of Medicine & Dentistry, supra, 223 F.3d at 222-23, 228.
Second, an employee is not permitted to redefine a purely
personal preference or aversion as a religious belief.
EEOC v. Union Independiente de la Autoridad de Acueductos y
Alcantarillados de Puerto Rico, 279 F.3d 49, 56 (1st Cir. 2002);
6 No. 02-3371
Seshadri v. Kasraian, 130 F.3d 798, 800-01 (7th Cir. 1997)
(belief in the deeply spiritual effects of eating Kozy Kitten
People/Cat Food); Vetter v. Farmland Industries, Inc., 120
F.3d 749, 752-53 (8th Cir. 1997). Otherwise he could an-
nounce without warning that white walls or venetian
blinds offended his “spirituality,” and the employer would
have to scramble to see whether it was feasible to accom-
modate him by repainting the walls or substituting cur-
tains for venetian blinds. This case is not so extreme,
because compelled attendance at sectarian religious ser-
vices is the sort of thing that is likely to offend someone
who does not belong to the sect in question, though we
repeat that for all we know Reed is a Gideon and his
claim for accommodation therefore completely spurious.
But putting that possibility to one side, and assuming that
it would have been no sort of hardship for Great Lakes
to have excused Reed from attendance at meetings with
the Gideons, who are hardly likely to ask, “Why isn’t the
executive housekeeper here?” we think the district court
was right to grant summary judgment for Great Lakes
with respect to this claim as well as the disparate-treat-
ment claim. There is a line, indistinct but important, be-
tween an employee who seeks an accommodation to his
religious faith and an employee who asserts as Reed did
an unqualified right to disobey orders that he deems
inconsistent with his faith though he refuses to indicate
at what points that faith intersects the requirements of
his job. Today he storms out of a meeting with the Gideons;
tomorrow he may refuse to place their Bibles in the
rooms; the day after that he may announce that he will not
come to work on the day when the Gideons visit. Reed
failed to give any indication of what future occurrences
at the Holiday Inn would impel him to make a scene
embarrassing to the manager and potentially injurious
to the employer. Title VII imposes a duty on the employer
No. 02-3371 7
but also a reciprocal duty on the employee to give fair
warning of the employment practices that will interfere
with his religion and that he therefore wants waived or
adjusted. EEOC v. United Parcel Service, 94 F.3d 314, 317
(7th Cir. 1996); Redmond v. GAF Corp., 574 F.2d 897, 901
(7th Cir. 1978); Cosme v. Henderson, supra, 287 F.3d at 158
(2d Cir. 2002); Chalmers v. Tulon Co., 101 F.3d 1012, 1019-21
(4th Cir. 1996); Brown v. Polk County, 61 F.3d 650, 654
(8th Cir. 1995). A person’s religion is not like his sex or
race—something obvious at a glance. Even if he wears a
religious symbol, such as a cross or a yarmulka, this may
not pinpoint his particular beliefs and observances; and
anyway employers are not charged with detailed knowl-
edge of the beliefs and observances associated with par-
ticular sects. Suppose the employee is an Orthodox Jew
and believes that it is deeply sinful to work past sundown
on Friday. He does not tell his employer, the owner of a
hardware store that is open from 9 a.m. to 6 p.m. on Fri-
days, who leaves the employee in sole charge of the store
one Friday afternoon in mid-winter, and at 4 p.m. the
employee leaves the store. The employer could fire him
without being thought guilty of failing to accommodate
his religious needs. This case is similar.
We turn to the propriety of the sanctions that the dis-
trict judge imposed on Reed for filing a frivolous claim,
which is an apt description of his claim to having been
intentionally discriminated against on account of his
religion. The judge ordered him to pay Great Lakes $1,000
and write a letter of apology to Great Lakes, and also
forbade him to file any further lawsuits until he com-
plies with the rest of the order. If the sanction had con-
sisted merely of a monetary penalty for filing a frivolous
claim, we would affirm. E.g., Smith v. Gilmore, 111 F.3d 55
(7th Cir. 1997) (per curiam); Saunders v. Bush, 15 F.3d 64 (5th
Cir. 1994). The fact that Reed’s accommodation claim, while
8 No. 02-3371
it has failed, was not frivolous would be no bar to impos-
ing sanctions for putting his opponent to the expense of
opposing a frivolous claim (or defense) just because he had
a nonfrivolous claim as well. Jimenez v. Madison Area
Technical College, 321 F.3d 652, 656 (7th Cir. 2003); Senese
v. Chicago Area I.B. of T. Pension Fund, 237 F.3d 819, 826
n. 3 (7th Cir. 2001); Fries v. Helsper, 146 F.3d 452, 458 (7th
Cir. 1998); Antonious v. Spaulding & Evenflo Cos., 275 F.3d
1066, 1075 (Fed. Cir. 2002); Townsend v. Holman Consult-
ing Corp., 929 F.2d 1358, 1367 (9th Cir. 1990). But the dis-
trict judge’s basis for imposing the sanctions he did on Reed
was different; it was that in the past 15 years Reed had
worked for 25 different employers, often (as in this case)
for a month or less, and had filed 13 employment dis-
crimination suits in the federal district court in Milwaukee.
He had won a partial victory in one of the suits but had
lost all the rest, some of them through abandonment. The
judge inferred that Reed is engaged in a pattern of extor-
tion, working for an employer just long enough to obtain a
pretext for suing him.
There is indeed something amiss in Reed’s employment
and litigation history, though extortion doesn’t seem the
word for it. Were he engaged in extortion he would have
dropped his suits in exchange for nuisance-suit settle-
ments. So far as appears, his 15-year campaign of “extor-
tion” hasn’t yielded him a penny, except in his one victory,
where he obtained damages in a trial and not by way of a
settlement, nuisance or otherwise. It seems more likely that
he has a psychological problem than that he has been
committing extortion for the last 15 years with nothing
to show for it.
Even so, a judge can sanction a litigant for filing a frivo-
lous suit or claim regardless of the motives for such fil-
ing, and in deciding whether to sanction such a litigant
No. 02-3371 9
he can take into account a history of frivolous litigation.
United States ex rel. Verdone v. Circuit Court, 73 F.3d 669
(7th Cir. 1995) (per curiam); Howard v. Mail-Well Envelope
Co., 150 F.3d 1227, 1231-33 (10th Cir. 1998) (per curiam);
Wrenn v. Gould, 808 F.2d 493, 504-06 (6th Cir. 1987); see
also Grove Fresh Distributors, Inc. v. John Labatt, Ltd., 299
F.3d 635, 642 (7th Cir. 2002); Riccard v. Prudential Ins. Co.,
307 F.3d 1277, 1293-96 and n. 15 (11th Cir. 2002). The fact
that the previous suits were the result of an unbalanced
mind rather than an extortionate one would be no defense.
Yet, odd as it may seem, none of Reed’s previous cases has
been adjudged frivolous. Nor did the district judge find
that any of them had been frivolous. The sanctions order
thus appears to rest on nothing more solid than the judge’s
speculation that Reed is an extortionist. The speculation is
too thin to sustain that order. The order must therefore be
vacated and the matter returned to the judge for recon-
sideration in light of this opinion; but the grant of sum-
mary judgment to Great Lakes is affirmed.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED.
RIPPLE, Circuit Judge, concurring in part and dissenting
in part. I agree that Mr. Reed has failed to establish a
case of intentional discrimination on the basis of religion.
Nor has he established a case of failure to accommodate
his religious beliefs on the part of Great Lakes. The deposi-
tion testimony of Mr. Reed makes it clear that he was quite
unwilling to enter into a dialogue with his employer on
that matter.
10 No. 02-3371
I do not, however, regard either of the allegations made
by Mr. Reed to be frivolous. Accordingly, I would reverse
that part of the judgment of the district court that im-
poses sanctions.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-30-03