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RICHARD D. PETERSON, Plaintiff-Appellant,
v.
HEWLETT-PACKARD CO., a corporation, Defendant-Appellee.
No. 01-35795
United States Court of Appeals for the Ninth Circuit
D.C. No. CV-00-00068-LMB
Appeal from the United States District Court for the District
of Idaho Larry M. Boyle, Magistrate Judge, Presiding Argued and
Submitted March 4, 2003--Seattle, Washington Before: Stephen
Reinhardt, William A. Fletcher, and Ronald M. Gould, Circuit
Judges.
COUNSEL
Christ T. Troupis, Troupis & Summer Law Office,
Meridian, Idaho; and Kenneth D. Nyman, Anderson, Julian &
Hull, LLP, Boise, Idaho, for the plaintiff-appellant.
William L. Mauk and Grant T. Burgoyne, Mauk & Burgoyne,
Boise, Idaho, for the defendant-appellee.
Filed January 6, 2004
REINHARDT, Circuit Judge:
In this religious discrimination action under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. and Idaho law, Richard Peterson claims that his former
employer, the Hewlett-Packard Company, engaged in disparate treatment
by terminating him on account of his religious views and that
it failed to accommodate his religious beliefs. The district
court granted Hewlett-Packard's motion for summary judgment on
the grounds that: 1) Peterson failed to raise an inference of
disparate treatment and 2) accommodating Peterson's beliefs would
inflict undue hardship upon Hewlett-Packard. We affirm.
I. Background
Peterson was employed in the Boise, Idaho office of
Hewlett-Packard for almost 21 years prior to his termination.
The parties do not dispute that Peterson's job performance was
satisfactory. The conflict between Peterson and Hewlett-Packard
arose when the company began displaying "diversity posters"
in its Boise office as one component of its workplace diversity
campaign. The first series consisted of five posters, each showing
a photograph of a Hewlett-Packard employee above the caption
"Black," "Blonde," "Old," "Gay,"
or "Hispanic." Posters in the second series included
photographs of the same five employees and a description of the
featured employee's personal interests, as well as the slogan
"Diversity is Our Strength."
Peterson describes himself as a "devout Christian,"
who believes that homosexual activities violate the commandments
contained in the Bible and that he has a duty "to expose
evil when confronted with sin." In response to the posters
that read "Gay," Peterson posted two Biblical scriptures
on an overhead bin in his work cubicle. The scriptures were printed
in a typeface large enough to be visible to co-workers, customers,
and others who passed through an adjacent corridor. One of Peterson's
postings was taken from Corinthians 10:12. The other featured
the following passage from Isaiah:
The shew of their countenance doth witness against them; and
they declare their sin as Sodom, they hide it not. Woe unto their
soul! For they have rewarded evil unto themselves. Isaiah 3:9
Subsequently, Peterson posted a third scriptural passage.
This time he chose the well-known and highly controversial passage
from Leviticus:
If a man also lie with mankind, as he lieth with a woman,
both of them have committed an abomination; they shall surely
be put to death; their blood shall be put upon them. Leviticus
20:13
Peterson's direct supervisor removed the scriptural
passages after consulting her supervisor and determining that
they could be offensive to certain employees, and that the posting
of the verses violated Hewlett-Packard's policy prohibiting harassment.
Throughout the relevant period, Hewlett-Packard's harassment
policy stated as follows:
Any comments or conduct relating to a person's race, gender,
religion, disability, age, sexual orientation, or ethnic background
that fail to respect the dignity and feeling [sic] of the individual
are unacceptable.
Over the course of several days after Peterson posted
the Biblical materials, he attended a series of meetings with
Hewlett-Packard managers, during which he and they tried to explain
to each other their respective positions. Peterson explained
that he meant the passages to communicate a message condemning
"gay behavior." The scriptural passages, he said, were
"intended to be hurtful. And the reason [they were] intended
to be hurtful is you cannot have correction unless people are
faced with truth." Peterson hoped that his gay and lesbian
co-workers would read the passages, repent, and be saved.
In these meetings, Peterson also asserted that Hewlett-Packard's
workplace diversity campaign was an initiative to "target"
heterosexual and fundamentalist Christian employees at Hewlett-Packard,
in general, and him in particular. Ultimately, Peterson and the
managers were unable to agree on how to resolve the conflict.
Peterson proposed that he would remove the offending scriptural
passages if Hewlett-Packard removed the "Gay" posters;
if, however, Hewlett-Packard would not remove the posters, he
would not remove the passages. When the managers rejected both
options, Peterson responded: "I don' t see any way that
I can compromise what I am doing that would satisfy both [Hewlett-Packard]
and my own conscience." He further remonstrated: "as
long as [Hewlett-Packard] is condoning [homosexuality] I' m going
to oppose it. . . ."
Peterson was given time off with pay to reconsider his
position. When he returned to work, he again posted the scriptural
passages and refused to remove them. After further meetings with
Hewlett-Packard managers, Peterson was terminated for insubordination.
Following receipt of a right to sue notice from the
EEOC, Peterson filed a complaint alleging religious discrimination
in violation of Title VII and the Idaho Human Rights Act; wrongful
discharge in violation of public policy; and other state law
claims that he later dropped. Both parties moved for summary
judgment. The district court granted Hewlett-Packard's motion
and denied Peterson' s.
II. Analysis
We review the district court's order granting summary
judgment de novo. Balint v. Carson City, 180 F.3d 1047,
1050 (9th Cir. 1999) (en banc).
Title VII makes it unlawful for an employer "to
discharge any individual . . . because of such individual's .
. . religion[.]" 42 U.S.C. § 2000e-2(a)(1). "The
term ' religion' includes all aspects of religious observance
and practice, as well as belief, unless an employer demonstrates
that he is unable to reasonably accommodate to an employee's
. . . religious observance or practice without undue hardship
on the conduct of the employer's business." 42 U.S.C. §
2000e(j); see also Lawson v. Washington, 296 F.3d 799,
804 (9th Cir. 2002); Tiano v. Dillard Dep' t Stores, Inc.,
139 F.3d 679, 681 (9th Cir. 1998). Our analysis of Peterson's
religious discrimination claims under the Idaho Human Rights
Act is the same as under Title VII. See Sengupta v. Morrison-Knudsen
Co., 804 F.2d 1072, 1077 (9th Cir. 1986) (citing Bowles v.
Keating, 100 Idaho 808, 812 (1979)). Therefore, our analysis
of the Title VII claims also disposes of the Idaho state claims.
A claim for religious discrimination under Title VII
can be asserted under several different theories, including disparate
treatment and failure to accommodate. See Chalmers v. TulonCo.
of Richmond, 101 F.3d 1012, 1017-18 (4th Cir. 1996); Mann
v. Frank, 7 F.3d 1365, 1368-70 (8th Cir. 1993). In arguing that
Hewlett-Packard discriminated against him on account of his religious
beliefs, Peterson relies on both these theories.
A. Disparate Treatment
To survive summary judgment on his disparate treatment
claim, Peterson must establish that his job performance was satisfactory
and provide evidence, either direct or circumstantial, to support
a reasonable inference that his termination was discriminatory.
Chalmers, 101 F.3d at 1017. The amount of evidence that
Peterson must produce is "very little,"Chuang v.
Univ. of Cal. Davis, 225 F.3d 1115, 1124 (9th Cir. 2000),
so long as it is more than "purely conclusory allegations
of alleged discrimination, with no concrete, relevant particulars."Forsberg
v. Pac. Northwest Bell Tel. Co., 840 F.2d 1409, 1419 (9th
Cir. 1988).
We analyze the evidence that Peterson presents in support
of his disparate treatment claim under theMcDonnell-Douglas burden-shifting
framework which he invokes. McDonnellDouglas Corp. v.
Green, 411 U.S. 792 (1973). Under this approach, Peterson has
the burden of establishing a prima facie case by showing that
(1) he is a member of a protected class; (2) he was qualified
for his position; (3) he experienced an adverse employment action;
and (4) similarly situated individuals outside his protected
class were treated more favorably, or other circumstances surrounding
the adverse employment action give rise to an inference of discrimination.
Chuang, 225F.3d at 1123; Lyons v. England, 307 F.3d 1092,
1112-14 (9th Cir. 2002); Mandell v. County of Suffolk,
316 F.3d 368, 377-78 (2d Cir. 2003). It is with respect to the
fourth requirement that Peterson's case fails.
Initially, we address Peterson's argument that Hewlett-Packard's
workplace diversity campaign was "a crusade to convert fundamentalist
Christians to its values," including the promotion of "the
homosexual lifestyle." The undisputed evidence shows that
Hewlett-Packard carefully developed its campaign during a three-day
diversity conference at its Boise facility in 1997 and subsequent
planning meetings in which numerous employees participated. The
campaign's stated goal--and no evidence suggests that it was
pretextual--was to increase tolerance of diversity. Peterson
may be correct that the campaign devoted special attention to
combating prejudice against homosexuality, but such an emphasis
is in no manner unlawful. To the contrary, Hewlett-Packard's
efforts to eradicate discrimination against homosexuals in its
workplace were entirely consistent with the goals and objectives
of our civil rights statutes generally. See, e.g., Nichols
v. Azteca Restaurant, 256 F.3d 864, 870 (9th Cir. 2001) (gender
stereotyping violates Title VII); Rene v. MGM Grand Hotel,
305 F.3d 1061, 1067 (9th Cir. 2002) (en banc) (Title VII forbids
same-sex harassment).
In addition to Peterson's allegations about the general
purposes of the diversity initiative, he asserts that the campaign
that Hewlett-Packard conducted, as well as "the entire disciplinary
process" that it initiated in response to his posting of
the scriptural passages, constituted "an inquisition serving
no other purpose than to ferret out the extremity of Peterson's
views on homosexuality." [FOOTNOTE 1]According to Peterson,
Hewlett-Packard managers harassed him in order to convince him
to change his religious beliefs.[FOOTNOTE 2] However, the evidence
that Peterson cites in support of this theory shows that Hewlett-Packard
managers acted in precisely the opposite manner. In numerous
meetings, Hewlett-Packard managers acknowledged the sincerity
of Peterson's beliefs and insisted that he need not change them.
They did not object to Peterson's expression of his anti-gay
views in a letter to the editor that was published in the Idaho
Statesman--a letter in which Peterson stated that Hewlett-Packard
was "on the rampage to change moral values in Idaho under
the guise of diversity," and that the diversity campaign
was a "platform to promote the homosexual agenda."
Nor did the Hewlett-Packard managers prohibit him from parking
his car in the company lot even though he had affixed to it a
bumper sticker stating, "Sodomy is Not a Family Value."
All that the managers did was explain Hewlett-Packard's diversity
program to Peterson and ask him to treat his co-workers with
respect. They simply requested that he remove the posters and
not violate the company's harassment policy--a policy that was
uniformly applied to all employees. No contrary inference may
be drawn from anything in the record.
Peterson also maintains that the disciplinary proceedings
and his subsequent termination stand in marked contrast to Hewlett-Packard's
treatment of three other groups of similarly-situated employees.
Peterson compares himself, first, to the employees who hung the
diversity posters. He argues that these posters were intended
"to make people uncomfortable so they would think again
about diversity and change their actions to be more positive."
He likens these actions to his own intentions to make his "scriptures
[ ] hurtful so that people would repent (change their actions)
and experience the joys of being saved."[FOOTNOTE 3] This
comparison fails because the employees who hung the diversity
posters were simply communicating the views of Hewlett-Packard
as they were directed to do by management, whereas Peterson was
expressing his own personal views which contradicted those of
management. Moreover, unlike Peterson's postings, the company's
workplace diversity campaign did not attack any group of employees
on account of race, religion, or any other important individual
characteristic. To the contrary, Hewlett-Packard's initiative
was intended to promote tolerance of the diversity that exists
in its workforce. Hewlett-Packard's failure to fire employees
for following management's instructions to hang the posters prepared
by management provides no evidence of disparate treatment.
Second, Peterson compares himself with other employees
who posted religious and secular messages and symbols in their
work-spaces. Yet Peterson failed to present any evidence that
the posters in other Hewlett-Packard employees' cubicles were
intended to be "hurtful" to, or critical of, any other
employees or otherwise violated the company's harassment policy.
In fact, the only posters in other employees' work-spaces that
Peterson identified were of "Native American dream catchers,"
"New Age pictures of whales," and a yin-yang symbol.
Third, Peterson argues that he was similarly situated
to the network group of homosexual employees that Hewlett-Packard
permitted to organize in the workplace and advertise in the company's
email and its newsletter.[FOOTNOTE 4] Yet Peterson failed to
present any evidence that communications from this network group
were, let alone were intended to be, hurtful to any group of
employees. Nor does anything in the record indicate that Hewlett-Packard
permitted or would have permitted any network group or any individual
employee to post messages of either a secular or religious variety
that demeaned other employees or violated the company's harassment
policy.
In short, we conclude that Peterson's evidence does
not meet the threshold for defeating summary judgment in disparate
treatment cases. Chuang, 225 F.3d at 1124. Peterson offered
noevidence, circumstantial or otherwise, that would support
a reasonable inference that his termination was the result of
disparate treatment on account of religion.[FOOTNOTE 5] Viewing
the record in the light most favorable to Peterson, it is evident
that he was discharged, not because of his religious beliefs,
but because he violated the company's harassment policy by attempting
to generate a hostile and intolerant work environment and because
he was insubordinate in that he repeatedly disregarded the company's
instructions to remove the demeaning and degrading postings from
his cubicle.
B. Failure to Accommodate
Peterson also appeals the district court's rejection
of his failure-to-accommodate theory of religious discrimination.
A plaintiff who fails to raise a reasonable inference of disparate
treatment on account of religion may nonetheless show that his
employer violated its affirmative duty under Title VII to reasonably
accommodate employees' religious beliefs. Trans World
Airlines, Inc. v. Hardison, 432 U.S. 63 (1977);Chalmers,
101 F.3d at 1017-18.[FOOTNOTE 6] To establish religious discrimination
on the basis of a failure-to-accommodate theory, Peterson must
first set forth a prima facie case that (1) he had a bona fide
religious belief, the practice of which conflicts with an employment
duty; (2) he informed his employer of the belief and conflict;
and (3) the employer discharged, threatened, or otherwise subjected
him to an adverse employment action because of his inability
to fulfill the job requirement.Heller v. EBB Auto. Co.,
8 F.3d 1433, 1438 (9th Cir. 1993). If Peterson makes out a prima
facie failure-to-accommodate case, the burden then shifts to
Hewlett-Packard to show that it "initiated good faith efforts
to accommodate reasonably the employee's religious practices
or that it could not reasonably accommodate the employee without
undue hardship."Tiano, 139 F.3d at 681; Lawson, 296
F.3d at 804.
As we explain below, it is readily apparent that the
only accommodations that Peterson was willing to accept would
have imposed undue hardship upon Hewlett-Packard. Therefore,
we will assume arguendo that Peterson could establish
a prima facie case that his posting of the anti-gay scriptural
passages stemmed from his religious beliefs that homosexual activities
"violate the commandments of God contained in the Holy Bible"
and that those same religious beliefs imposed upon him "a
duty to expose evil when confronted with sin." We make that
assumption with considerable reservations, however, because we
seriously doubt that the doctrines to which Peterson professes
allegiance compel any employee to engage in either expressive
or physical activity designed to hurt or harass one's fellow
employees.
An employer's duty to negotiate possible accommodations
ordinarily requires it to take "some initial step to reasonably
accommodate the religious belief of that employee." Heller,
8 F.3d at 1440. Peterson contends that the company did not do
so in this case even though Hewlett-Packard managers convened
at least four meetings with him. In these meetings, they explained
the reasons for the company's diversity campaign, allowed Peterson
to explain fully his reasons for his postings, and attempted
to determine whether it would be possible to resolve the conflict
in a manner that would respect the dignity of Peterson's fellow
employees. Peterson, however, repeatedly made it clear that only
two options for accommodation would be acceptable to him, either
that (1) both the "Gay" posters and anti-gay messages
remain, or (2) Hewlett-Packard remove the "Gay" posters
and he would then remove the anti-gay messages.[FOOTNOTE 7] Given
Peterson's refusal to consider other accommodations, we proceed
to evaluate whether one or both of the "acceptible"
accommodations would have imposed undue hardship upon Hewlett-Packard,
or to put in it terms ofTiano and Lawson, to determine
whether Hewlett-Packard carried its burden of showing that no
reasonable accommodation was possible. Tiano, 139 F.3d at
681; Lawson, 296 F.3d at 804.
As we explain further below, Peterson's first proposed
accommodation would have compelled Hewlett-Packard to permit
an employee to post messages intended to demean and harass his
co-workers. His second proposed accommodation would have forced
the company to exclude sexual orientation from its workplace
diversity program. Either choice would have created undue hardship
for Hewlett-Packard because it would have inhibited its efforts
to attract and retain a qualified, diverse workforce, which the
company reasonably views as vital to its commercial success;
thus, neither provides a reasonable accommodation.
With respect to Peterson's first proposal, an employer
need not accommodate an employee's religious beliefs if doing
so would result in discrimination against his co-workers or deprive
them of contractual or other statutory rights. See Hardison,
432 U.S. at 81; Opuku-Boateng v. California, 95 F.3d 1461, 1468
(9th Cir. 1996). Nor does Title VII require an employer to accommodate
an employee's desire to impose his religious beliefs upon his
co-workers. Chalmers, 101 F.3d at 1021; Wilson v. U.S.
West Communications, 58 F.3d 1337, 1342 (8th Cir. 1995).
That is not to say that accommodating an employee's
religious beliefs creates undue hardship for an employer merely
because the employee's co-workers find his conduct irritating
or unwelcome. Complete harmony in the workplace is not an objective
of Title VII. "If relief under Title VII can be denied merely
because the majority group of employees, who have not suffered
discrimination, will be unhappy about it, there will be little
hope of correcting the wrongs to which the Act is directed."Franks
v. Bowman Transp. Co., 424 U.S. 747, 775 (1976) (quoting
U.S. v. Bethlehem Steel Corp., 446 F.2d 652, 663 (2d Cir.
1971)). While Hewlett-Packard must tolerate some degree of employee
discomfort in the process of taking steps required by Title VII
to correct the wrongs of discrimination, it need not accept the
burdens that would result from allowing actions that demean or
degrade, or are designed to demean or degrade, members of its
workforce. See Oncale v.Sundowner Offshore Servs., Inc.,
523 U.S. 75 (1998). Thus, we conclude that Peterson's first proposed
accommodation would have created undue hardship for his employer.
The only other alternative acceptable to Peterson--taking
down all the posters--would also have inflicted undue hardship
upon Hewlett-Packard because it would have infringed upon the
company's right to promote diversity and encourage tolerance
and good will among its workforce. The Supreme Court has acknowledged
that "the skills needed in today's increasingly global marketplace
can only be developed through exposure to widely diverse people,
cultures, ideas, and viewpoints."Grutter v. Bollinger,
123 S.Ct. 2325, 2340 (2003) (citing amici briefs submitted by
leading American corporations including Hewlett-Packard). These
values and good business practices are appropriately promoted
by Hewlett-Packard's workplace diversity program. To require
Hewlett-Packard to exclude homosexuals from its voluntarily-adopted
program would create undue hardship for the company.Cf. Romer
v. Evans, 517 U.S. 620 (1996) (Colorado state constitutional
amendment prohibiting state or local government action to protect
persons based on their homosexual status, conduct, or orientation
violates Equal Protection Clause).
Because only two possible accommodations were acceptable
to Peterson and implementing either would have imposed undue
hardship upon Hewlett-Packard, we conclude that the company carried
its burden of showing that no reasonable accommodation was possible,
and we therefore reject Peterson's failure-to-accommodate claim.
C. Public Policy
Peterson argues that his termination also violated public
policy, for the same reasons that it violated Title VII and the
Idaho Human Rights Act. Having found the employment discrimination
claims to be without merit, the public policy claim must also
fail.
Conclusion
Peterson failed to raise a triable issue of fact that
his termination from employment at Hewlett-Packard was on account
of his religious beliefs. The ruling of the district court is
therefore
AFFIRMED.
::::::::::::::::::::::::::::: FOOTNOTE(S):::::::::::::::::::::::::::::
FN1. Although Hewlett-Packard placed one of the "Gay"
posters next to Peterson's cubicle, he offers no evidence supporting
his assertion that the placement of the poster was intended to
target him.
FN2. Peterson's complaint did not allege either a religious
harassment or a hostile work environment claim. Likewise, no
such claim was asserted before the EEOC or the Idaho Human Rights
Commission.
FN3. Peterson states that there is no evidence that
anyone at Hewlett-Packard "even understood" the meaning
of the scripture passages that he posted, and that the meaning
he intended was revealed only in response to questions asked
in his private meetings with Hewlett-Packard managers. However,
he does not explain how he intended the passages to encourage
people to be saved if they could not be understood. Even assuming
that the messages conveyed by the first two scriptural passages
that he posted were ambiguous, the third passage is unabashedly
direct in its condemnation of homosexuals. Moreover, Peterson's
intention that his postings be "hurtful" is sufficient
for the purposes of our analysis.
FN4. While Hewlett-Packard prohibited religious network
groups at one time, its policy when Peterson was terminated was
to "approve groups of employees of various faiths if their
character, purpose and proposed activities focus on professional
development and teamwork." This is the same policy that
applied to every other group of workers that Hewlett-Packard
permitted to organize within the workplace. There is no evidence
that Hewlett-Packard approved any network group, the purpose
of which was to violate its harassment policies or demean the
views, conduct, or lifestyle of other workers.
FN5. In Tucker v. California Dep' t of Educ.,
97 F.3d 1204 (9th Cir. 1996), we expressed concern that a state
agency's prohibition on religious posting in the workplace constituted
viewpoint discrimination in violation of the First Amendment
because it "silenc[ed] religious perspectives on controversial
subjects." We illustrated these concerns by explaining the
prohibition's potential impact on a hypothetical sign "stating
that ' gay marriage is a sin,' and quoting passages from the
Bible to support that proposition." Id. at 1216.
Hewlett-Packard, however, is a private employer rather than a
state agency. Thus, we do not need to reach the First Amendment
concerns raised in Tucker. We do note, however, that an
employee's opposition to a policy of his employer or his advocacy
regarding a controversial public issue invokes different considerations
than his expressive activity intended to demean or degrade co-workers.
FN6. The Fourth Circuit has explained:
For example, an employee who is terminated for refusing to
work on Sundays can maintain an accommodation claim even if other
nonreligious employees were also fired for refusing Sunday work,
and even though the employer's proffered reason for the discharge--the
refusal to perform required Sunday work--is legitimate and nondiscriminatory
(because the Sunday work rule applies to all employees, regardless
of religion). If the employee has notified the employer of his
religious need to take Sundays off, the burden rests on the employer
to show that it could not accommodate the employee's religious
practice without undue hardship.
Chalmers, 101 F.3d at 1018.
FN7. At oral argument, Peterson's counsel suggested
for the first time two further accommodations that, he said,
Peterson would have accepted: 1) Hewlett-Packard could have moved
Peterson's cubicle to an isolated area where "nobody would
have seen him," or 2) Hewlett-Packard could have designated
a remote area as a "diversity forum" in which employees
would be permitted to hang "non-offensive" posters
regarding a variety of topics. There is no indication that Peterson
ever proposed these accommodations to Hewlett-Packard, or, indeed,
that anyone ever mentioned them prior to oral argument. They
also do not appear to accommodate the religious requirements
on which Peterson's accommodation claim relies. Peterson contends
that he was compelled by his religion to speak out regarding
his objection to the "Gay" posters, and in particular
to confront his gay and lesbian co-workers with his view of the
truth. These suggested accommodations, however, would have prevented
Peterson from reaching his audience. Most of his co-workers would
not have seen passages posted in a remote cubicle or in a remote
diversity forum. Furthermore, if only non-offensive posters would
have been permitted in the diversity forum, Peterson would have
been prevented from expressing his views there, inasmuch as Peterson's
posters were intended to be--and indeed were--offensive to gay
employees.
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