Arizona Court of Appeals, Division Two holds that genuine issues of material fact preclude summary judgment on employee’s failure-to-accommodate claim under Title VII where employer offered to help employee find his own equal- or lower-paid position, with no guarantee his employment status would be preserved.

David Stone worked as a defense investigator for Pima County’s Public Defense Services. His duties included investigating cases and facilitating communication with people in jail. In October 2021, the Pima County Board of Supervisors adopted a COVID-19 vaccine mandate for employees who came into contact with “vulnerable populations,” including incarcerated persons, and required full vaccination by employees like Stone by the end of the year.

For employees who declined vaccination based on sincerely held religious beliefs, the County created a reappointment process. Rather than guaranteeing a new role, the process required the employee to locate a vacant county position that did not involve contact with vulnerable populations and that paid an equal or lower salary, to notify Human Resources, to obtain the consent of the new position’s appointing authority, and to meet the position’s minimum qualifications. An employee who failed to secure a qualifying reappointment by the deadline would be terminated.

Stone requested a religious exemption in September 2021. He informed the County that he intended to transfer to a criminal investigator position with the County Attorney’s Office that he had been pursuing through a separate hiring process, but because that position paid more, it did not qualify under the reappointment process. Stone identified no qualifying vacancy for Human Resources to evaluate and did not otherwise engage with the process the County offered. After the County Attorney’s Office withdrew its anticipated offer, Stone did not attend a scheduled “pre-action” meeting, and the County terminated his employment.

Stone sued the County for wrongful termination, retaliation, and religious discrimination, including failure to accommodate. The superior court dismissed all but the failure-to-accommodate claim and later granted the County summary judgment on that claim, concluding that the undisputed record showed the County had made good-faith efforts to accommodate Stone and that he had failed to avail himself of the accommodation offered. Stone appealed.

Reviewing the grant of summary judgment de novo and viewing the evidence in the light most favorable to Stone, the Arizona Court of Appeals held that genuine issues of material fact precluded summary judgment for the County. Title VII prohibits religious discrimination and requires an employer to reasonably accommodate an employee’s religious practice or belief unless doing so would impose an undue hardship. To establish a prima facie failure-to-accommodate claim, an employee must show a sincere religious belief that conflicts with an employment requirement, notice of that belief and the conflict to the employer, and adverse treatment resulting from the conflict; the burden then shifts to the employer to show that it initiated good-faith efforts to accommodate. The parties agreed that the sole issue on appeal was whether the County had offered a reasonable accommodation.

Relying on Ninth Circuit authority invoked by both parties, the Court explained that an employer satisfies its Title VII obligation only by offering an accommodation that both accommodates the religious conflict and reasonably preserves the employee’s employment status, including the employee’s “compensation, terms, conditions, [and] privileges of employment.” The County argued that it was required to take only “some initial step” toward accommodation, after which the burden shifted to Stone to cooperate, and it faulted Stone for failing to engage with the reappointment process. Relying on American Postal Workers Union, San Francisco Local v. Postmaster General, 781 F.2d 772 (9th Cir 1986), the Court held that the employer’s “initial step” is itself the proposal of a reasonable accommodation; only once the employer has proposed a reasonable accommodation does the employee’s correlative duty to cooperate arise. The employer “bears the burden in the first instance” of proposing an accommodation that reasonably preserves the employee’s status, and Title VII places no burden on the employee to find his own accommodation. The County’s position, the Court observed, “both lessens the employer’s initial burden and places a prior burden on the employee that Title VII does not contemplate.”

Applying that framework, the Court concluded that the County’s reappointment mechanism could not be deemed a reasonable accommodation as a matter of law. The process required Stone to find his own position of equal or lesser pay, and even if he located a qualifying vacancy, nothing guaranteed that the County would treat his application any differently from an outside applicant’s or that his employment status and compensation would be preserved. At most, the Court reasoned, the mechanism “might or might not have” accommodated Stone’s beliefs—precisely the sort of unresolved question that precludes summary judgment. Stone’s own failure to engage fully with the process, including his unsuccessful pursuit of the higher-paying County Attorney’s Office position, did not affect the analysis of whether the County’s reappointment mechanism offered a reasonable accommodation in the first instance.

The Court reversed the grant of summary judgment and remanded for further proceedings. It denied Stone’s request for attorney fees and costs on appeal as premature, because neither party could be regarded as having prevailed at this stage of the proceedings.

Judge O’Neil authored the opinion, in which Judges Eckerstrom and Sklar concurred.

Posted by: Andrew Haynes