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GETZ v. PENNSYLVANIA

December 27, 1985

SUSAN GETZ
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE



The opinion of the court was delivered by: WEINER, J

 WEINER, J.

 Plaintiff, Susan Getz, brought this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. alleging that her employer, defendant Pennsylvania Department of Public Welfare ("DPW") of the Commonwealth of Pennsylvania, has discriminated against her on the basis of religion. The case was tried to the court sitting without a jury.

 Plaintiff began her employment with DPW in 1977 as an income maintenance worker. On April 20, 1978, she began her current position as a caseworker with DPW's Bureau of Blindness and Visual Services. As a caseworker, plaintiff is considered a civil service employee and covered by the collective bargaining agreement between the Commonwealth and the Pennsylvania Social Services Union. Pursuant to the applicable collective bargaining agreements, the plaintiff and other employees of comparable status have been provided with the following leave with pay by the Commonwealth for the year 1985-1986: Annual leave of 15.6 days, Personal Leave of 5 days, Sick Leave of 13 days, and State Holidays of 10 days. Plaintiff is permitted to accumulate her annual leave and transfer it from year to year up to a maximum total of 45 days. Personal leave must be utilized by the plaintiff during the year in which it is earned, except that if the plaintiff is unable to take such leave for legitimate reasons, it may be carried into the first 90 days of the next year. Personal and annual leave may be anticipated and taken before it is earned.

 At the trial, plaintiff testified that she had accumulated slightly over five days of annual leave during 1985. Plaintiff is a member of the branch of the Jewish religion referred to as Orthodox Judaism. Orthodox Judaism is considered a bona fide religion in the United States. As part of the religious practices of Orthodox Judaism, an adherent is not permitted to work on certain holy days, nor on Saturday, the Jewish Sabbath. These holy days and the Sabbath begin at sunset of the day preceding the holy day or Sabbath, and end at sunset of the holy day or Sabbath. As part of her adherence to Orthodox Judaism, plaintiff is required to refrain from work on 13 holy days during the year. These holy days do not occur on the same date each year, and, each year, a varying number of the days fall on Saturdays, Sundays, or other state holidays. For example, in 1985 five of plaintiff's religious holy days fell on weekends or state holidays. In 1986, seven of plaintiff's religious holy days will either fall on weekends or on state holidays. In 1987, however, one will fall on a weekend. During the entire time plaintiff has been employed by the defendant, she has been permitted to refrain from work on her religious holy days by taking leave with pay.

 On February 7, 1984, plaintiff wrote a memorandum to Ted Young, a district manager of her office stating that she was required to refrain from work on 15 religious holidays *fn1" and requesting that she be permitted to accumulate 10 days of compensatory time by working an additional one-half hour on certain days of the week. She made this request because the DPW had recently begun to operate on flex time which means that the office is open from 8 A.M. until 5 P.M., but an employee is required to work for only seven and one-half hours during that period. The employee is also supposed to take one-half hour or one hour for lunch during a portion of the workday, which does not constitute part of the seven and one-half hours, as well as fifteen minute breaks during the morning and afternoon, which do constitute part of the seven and one-half hours. Plaintiff's normal work hours under the flex time arrangement are 8:30 A.M. to 4:30 P.M. with one-half hour for lunch. Plaintiff is normally in her office two to three days a week and in the field on the other days. Plaintiff sought permission from the Bureau to work an additional half-hour on the days she was in the office and to accumulate time at the rate of one-half hour per day as compensatory time for the religious holy days she is required to take off. Plaintiff alleges that her supervisors in the district office of the Bureau granted her request and permitted her to begin accumulating time in early 1984 to compensate for her religious holidays. The matter was referred to Raymond D. Bogardus, the director of field operations of DPW in Harrisburg, who, in a letter dated February 21, 1984, denied plaintiff's request. As a result of this denial, plaintiff was not permitted to accumulate any further time. She alleges that she was permitted to use the five hours she had accumulated as compensatory time for the next holiday that occurred. Since that time, as a result of not being able to accumulate time, plaintiff alleges she was required to use annual leave for the following holidays: In 1984, 3 days and 2 1/2 hours for Passover, which occurred on April 17, 18, 24 and 25; 2 days for Shavuot, which occurred on June 6 and 7, for a 1984 total of 5 days and 2 1/2 hours. In 1985, 2 days for Passover (April 12), 1 day for Shavuot (May 27), 2 days for Rosh Hashanah (September 16, 17), 1 day for Yom Kippur (September 25) and 4 days for Sukkot, Shemini Atzeret and Simchat Torah (September 30, October 1, 7 and 8), for a total of 8 days. Plaintiff further alleges that she lost the following sums as a result of being required to use annual leave for the holidays listed: 5 days and 2 1/2 hours times an hourly rate of $11.15 in 1984 for a total in 1984 of $446.00, and 1 day times an hourly rate of $11.48 in 1985 plus 7 days times an hourly rate of $11.85 in 1985 for a total in 1985 of $708.26. Plaintiff further alleges that as a result of her being required to use annual leave for religious holy days in 1983, she was required to take leave without pay for 14 days to attend the funeral services of her father. As a result, plaintiff claims she is entitled to the sum of $1,147.65 in 1983, computed at a rate of $10.93 per hour. The total sum claimed by plaintiff is $2,301.91 ($446 in 1984 plus $708.26 in 1985 plus $1,147.65 in 1983).

 On May 11, 1984, Chief Counsel for DPW advised plaintiff's attorney that plaintiff would be permitted to utilize her annual and personal leave in order to observe her religious holidays if she submitted her requests for leave in sufficient time to allow for necessary staffing reassignments. Plaintiff's attorney was further advised that, inasmuch as plaintiff was receiving in 1984 four personal days and 15 annual days leave each year, she would have sufficient leave to assure herself of being on paid status during the days she was off from work for religious observances.

 Plaintiff argues that defendant, as an employer, has a duty to accommodate plaintiff's religious practices unless the employer can demonstrate that an undue hardship would result from the method of accommodation. Specifically, plaintiff claims that by having to use her personal and annual leave for her religious holidays, she has lost the privilege that other employees have of taking a vacation away from home of any reasonable duration. Plaintiff prays for an injunction enjoining defendant from continuing the practices complained of and ordering defendant to reasonably accommodate plaintiff's religious practices. Plaintiff is also seeking monetary compensation for the annual leave she was required to use for the Jewish holidays which, plaintiff alleges, totals $2,301.91. Plaintiff is also seeking costs and attorney's fees. After a careful review of all the evidence, we conclude that plaintiff has not sufficiently established a prima facie case of racial discrimination and we, therefore, find for the defendant.

 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) provides in pertinent part that it is an unlawful practice for an employer:

 
. . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.

 Under 42 U.S.C. § 2000e(j):

 
. . . 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 or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.

 To establish a prima facie case of religious discrimination under § 2000e-2(a)(1), an employee must demonstrate that; 1) he has a bona fide religious belief that conflicts with an employment requirement; 2) he informed his employer about the conflict; 3) that he was discharged or otherwise penalized for failing to comply with the conflicting employment requirement. Turpen v. Missouri-Kansas-Texas R.Co., 736 F.2d 1022, 1026 (5th Cir. 1984); Brown v. General Motors Corp., 601 F.2d 956, 959 (8th Cir. 1979); Anderson v. General Dynamics Convair Aerospace Div., 589 F.2d 397, 401 (9th Cir. 1978), cert. denied, 442 U.S. 921, 99 S. Ct. 2848, 61 L. Ed. 2d 290 (1979); Redmond v. GAF Corp., 574 F.2d 897, 901 (7th Cir. 1978). Once a plaintiff satisfies the requirements for a prima facie case, the burden then shifts to the employer to prove that it made good faith efforts to accommodate the employee's religious ...


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