United States District Court, Northern District of Illinois, E.D
May 13, 1983
KA NAM KUAN, PLAINTIFF,
CITY OF CHICAGO, RICHARD J. BRZECZEK, CHARLES H. POUNIAN, DEFENDANTS.
The opinion of the court was delivered by: Prentice H. Marshall, District Judge.
Plaintiff is a Chicago police officer of Chinese national
origin. He has filed this action challenging certain
employment practices of the City of Chicago under Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e to
2000e-17 (1976), and as violative of the due process clause of
the fourteenth amendment to the Constitution and hence
42 U.S.C. § 1983 (Supp.IV 1980). Also named as defendants are the
superintendent of police and the city's director of personnel.
Defendants have moved to dismiss the complaint.
Count I of the complaint is brought under Title VII.
Plaintiff contends that from 1976 to 1978 he received low
performance ratings from his superiors which in effect doomed
his chances to be promoted to sergeant. Plaintiff learned of
his low performance ratings in September of 1978. However, he
did not file a complaint with the Equal Employment Opportunity
Commission until April 10, 1980. Under Title VII, an
administrative complaint must be filed within 300 days of the
challenged discriminatory act. See 42 U.S.C. § 2000e-5(e)
(1976). Plaintiff contends that the discriminatory act at issue
is the use of the ratings as part of the 1979 sergeants' exam,
which did not occur until November, 1979, rather than the
ratings themselves. However, the Supreme Court has held that
the statutory time period begins to run on the date plaintiff
learns of the actual discrimination, and not on the date that
its consequences become painful. See Delaware State College v.
Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431
(1980). There, it was held that the date on which the plaintiff
had learned that his tenure would be denied, rather than the
date he was discharged, began the running of the statute, since
it was the denial of the tenure that was the challenged act.
See Chardon v. Fernandez, 454 U.S. 6, 8, 102 S.Ct. 28, 30, 70
L.Ed.2d 6 (1981) (per curiam). Here, the allegedly illegal acts
issue are plaintiffs' performance ratings. It is the ratings
themselves that are alleged to be discriminatory; no
allegation is made that they were not applied to the exam in
an evenhanded fashion in November, 1979. Thus, by September,
1978, the challenged act was complete. The use of the low
ratings in November, 1979, was only the point at which the
consequences of the low ratings became painful. By September,
plaintiff knew everything he needed to know to file a Title
VII action but did not do so. As a result, his Title VII
action is time-barred.*fn1
Count II is brought under § 1983 and alleges that defendants'
use of performance ratings violates due process. The parties
agree that the constitutional standard applicable to this claim
is that set out in DiIulio v. Board of Fire and Police
Commissioners, 682 F.2d 666 (7th Cir.), cert. denied, ___ U.S.
___, 103 S.Ct. 451, 74 L.Ed.2d 605 (1982).
While the state can require high standards of
qualifications, these standards must have a
rational connection with the applicant's fitness
or capacity to be a police sergeant. Attaching
unreasonable and arbitrary requirements is
violative of constitutional due process.
Id. at 668-69 (citation omitted).
Plaintiff's complaint clearly states a claim under
DiIulio. It alleges that his performance ratings were arbitrary
and that performance ratings cannot rationally be used to
predict performance as a sergeant. First Amended Complaint ¶¶
2-3 to 2-4. Defendants do not contest the sufficiency of
plaintiff's pleading but rely instead on this court's finding
that performance ratings could be used as a basis for promotion
to sergeant in United States v. City of Chicago, 411 F. Supp. 218,
238-39, 241 (N.D.Ill. 1976), aff'd in part and rev'd in
part, 549 F.2d 415 (7th Cir.), cert. denied, 434 U.S. 875, 98
S.Ct. 225, 54 L.Ed.2d 155 (1977). However, since that
contention goes outside the pleadings it is premature. If
defendants wish to pursue this argument they should move for
Count III is brought under Title VII. Taking its allegations
as true, the facts are as follows. The City of Chicago grants
12 paid holidays per year to its police officers, regardless
of their religion. It also grants certain paid holidays to
employees who are members of certain "minority" religions such
as Judaism, Greek Orthodox and Muslim. Plaintiff, who is
Protestant, receives fewer paid holidays than do members of
these religions and is forced to work certain overtime and
otherwise undesirable assignments. As a result, defendants
have imposed an undue burden on plaintiff, it is alleged, and
have discriminated against him on the basis of his religion in
violation of Title VII.
Title VII provides,
It shall be an unlawful employment practice for
an employer —
(1) . . . to discriminate against any
individual with respect to his compensation,
terms, conditions, or privileges of employment,
because of such individual's . . .
religion. . . .
42 U.S.C. § 2000e-2(a)(1) (1976). The statute goes on to
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
Id. § 2000e(j).
The leading case in this area is Trans World Airlines v.
Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977).
Hardison's religious beliefs prevented him from working from
sundown Friday until sundown Saturday, which was part of his
assigned shift. The Court held that the employer, TWA, could
not reasonably accommodate Hardison's religious beliefs and
that as a result his discharge for failure to work his assigned
shifts was not religious discrimination within the meaning of
To require TWA to bear more than a de minimis
cost in order to give Hardison Saturdays off is an
undue hardship. . . . [T]o require TWA to bear
additional costs when no such costs are incurred to
give other employees the days off that they want
would involve unequal treatment of employees on the
basis of their religion. By suggesting that TWA
should incur certain costs in order to give
Hardison Saturdays off the Court of Appeals would
in effect require TWA to finance an additional
Saturday off and then to choose the employee who
will enjoy it on the basis of his religious
beliefs. While incurring extra costs to secure a
replacement for Hardison might remove the necessity
of compelling another employee to work
involuntarily in Hardison's place, it would not
change the fact that the privilege of having
Saturdays off would be allocated according to
As we have seen, the paramount concern of
Congress in enacting Title VII was the
elimination of discrimination in employment. In
the absence of clear statutory language or
legislative history to the contrary, we will not
readily construe the statute to require an employer
to discriminate against some employees in order to
enable others to observe their Sabbath.
Hardison, 432 U.S. at 84-85, 97 S.Ct. at 2277 (emphasis
supplied) (footnote omitted).
The rationale of Hardison is that when an employer bears more
than a de minimis cost to accommodate a religious belief, it in
effect discriminates against its other employees on the basis
of their religious beliefs. A number of courts have read
Hardison exactly that way. See Brener v. Diagnostic Center
Hospital, 671 F.2d 141, 146 (5th Cir. 1982); Tooley v.
Martin-Marietta Corp., 648 F.2d 1239, 1243 (9th Cir.), cert.
denied, 454 U.S. 1098, 102 S.Ct. 671, 70 L.Ed.2d 639 (1981);
Nottelson v. Smith Steel Workers D.A.L.U. 19806, 643 F.2d 445,
451 (7th Cir. 1981); Brown v. General Motors Corp.,
601 F.2d 956, 961-62 (8th Cir. 1979); Burns v. Southern Pacific
Transportation Co., 589 F.2d 403, 406 (9th Cir. 1978), cert.
denied, 439 U.S. 1072, 99 S.Ct. 843, 59 L.Ed.2d 38 (1979). The
logical implication is that where plaintiff does allege that
his employer's accommodation involves more than a de minimis
cost, that accommodation amounts to religious discrimination
within the meaning of Title VII. That is plaintiff's legal
theory here, in what appears to be the first "reverse religious
discrimination" case reported under Title VII.
Defendants do not quarrel with the soundness of plaintiff's
legal theory, but argue only that the costs created by their
policy are de minimis. However, defendants have not submitted
affidavits or other evidentiary materials detailing the costs
arising from their policy, so this defense must await fuller
development of the record. The complaint does allege that
defendants' policy requires officers such as
plaintiff to work overtime on a regular basis; that is exactly
the sort of burden that was held to be undue in Hardison. See
also Brener v. Diagnostic Center Hospital, 671 F.2d 141, 146
(5th Cir. 1982).*fn3 Ultimately, the question whether
defendants have imposed an undue burden on employees such as
plaintiff, or whether the burden is de minimis, is a question
of fact that will depend on a variety of factors, as the
applicable regulation indicates.
The Commission will determine what constitutes
"more than a de minimis cost" [Hardison, 432 U.S.
at 84, 97 S.Ct. at 2277] with due regard given to
the identifiable cost in relation to the size and
operating cost of the employer, and the number of
individuals who will in fact need a particular
accommodation. In general, the Commission
interprets this phrase as it was used in the
Hardison decision to mean that costs similar to the
regular payment of premium wages of substitutes,
which was at issue in Hardison, would constitute
undue hardship. However, the Commission will
presume that the infrequent payment of premium
wages for a substitute or the payment of premium
wages while a more permanent accommodation is being
sought are costs which an employer can be required
to bear as a means of providing a reasonable
accommodation. Further, the Commission will presume
that generally, the payment of administrative costs
necessary for providing the accommodation will not
constitute more than a de minimis cost.
Administrative costs, for example, include those
costs involved in rearranging schedules and
recording substitutions for payroll purposes.
29 C.F.R. § 1605.3(e)(1) (1982).*fn4
It may well be that after all the relevant circumstances are
examined it will be clear that the challenged accommodation
involves de minimis costs. However, at this stage, we do not
know the number of employees accommodated, the magnitude of
the overtime the city must pay, or the extent of the impact of
the policy on the city's budget and the work schedules of the
police officers who are not accommodated. Moreover, plaintiff
has alleged that the city must pay premium wages to
substitutes on a regular basis which is the type of burden
that was held to be undue in Hardison.*fn5 Thus, we cannot say
that it appears beyond doubt that plaintiff can prove no set of
facts which would entitle him to relief; hence count III should
not be dismissed. See Conley v. Gibson, 355 U.S. 41, 45-46, 78
S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).
Defendants' motion to dismiss is granted with respect to
count I of the first amended complaint, and denied with
respect to counts II and III. Defendants to answer counts II
and III within 14 days. For purposes of trial on count II,
this case is consolidated with United States v. City of
Chicago, No. 73 C 2080. Trial, etc. on count III will occur
immediately after the trial of the sergeant issues in 73 C