doing so would constitute "undue hardship." 42 U.S.C. § 2000e(j) (1974); 29 C.F.R. § 1605.1 (1979). See generally Edwards & Kaplan, Religious Discrimination and the Role of Arbitration under Title VII, 69 Mich.L.Rev. 599 (1971). Thus, the burden is placed on the employer to prove that no reasonable accommodation could be made. While the instant matter has not been brought under Title VII, the analysis employed in those cases which do arise under the Act provides a useful framework for analyzing constitutional questions of free exercise. See, e.g., Rankins v. Comm'n on Professional Competence of Ducor, 24 Cal.3d 167, 593 P.2d 852, 154 Cal.Rptr. 907 (1979).
Defendant has placed primary reliance upon the Supreme Court's decision in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S. Ct. 2264, 53 L. Ed. 2d 113 (1977). In that case, plaintiff was an aircraft maintenance stores clerk, whose work was in demand by his employer twenty-four hours of every day. The plaintiff, also a member of the Worldwide Church of God, refused to work on all holy days as well as every Saturday so that he could observe the sabbath. TWA, his employer, accommodated his observance of holy days but refused to accommodate his demand to have every Saturday free. The Supreme Court held that the employer's duty of reasonable accommodation under Title VII was not violated with respect to the sabbath days since (1) the plaintiff's job was essential on weekends and he was the only available person on his shift to perform it; and (2) transferring other personnel to take his place would violate the seniority provision of the collective bargaining agreement and entail the payment of premium overtime wages. See generally The Supreme Court, 1976 Term, 91 Harv.L.Rev. 265 (1977).
Defendant also cites Huston v. Local 93, International Union, UAW, 559 F.2d 477 (8th Cir. 1977), a case factually analogous to Trans World Airlines, supra. And, as in that case, the Eighth Circuit ruled that an employer need not change work assignments in order to accommodate his employee's religious beliefs where doing so would violate the seniority provisions of the collective bargaining contract. The defense also relies upon Jordan v. North Carolina National Bank, 565 F.2d 72 (4th Cir. 1977). In Jordan, the plaintiff was a Seventh Day Adventist and in accordance with the tenets of her faith required leave on Saturday to observe the sabbath. The defendant Bank refused to hire the plaintiff because she stated on her application that she would not accept employment unless the Bank would "guarantee" that she would not have to work on Saturdays. The court upheld the Bank's refusal to hire, finding that accommodating such a "guarantee" would constitute "undue hardship" pursuant to Title VII.
Based on the above cases, defendant Board of Education contends that it should not be required to accommodate plaintiff's religious absences since doing so would constitute "undue hardship" to the school system. We must disagree and find the cases relied upon by the Board to be distinguishable from the case at bar.
The first general distinction is that all of the employees discharged or not hired in the Title VII cases noted by defendant demanded to be excused from work every Saturday to observe the sabbath in direct conflict with their employers' weekend work schedules. In contrast, Niederhuber's religious demands here would have conflicted with only five to ten workdays each year a much less substantial burden. Second, unlike the evidence presented of the employee shortage confronting the employer in Trans World Airlines, supra, and the difficulty in finding replacement workers at a comparable rate of pay, there was no evidence presented here of any shortage of fully qualified substitute teachers who could be and were called in to substitute for the plaintiff. Nor is there any evidence that hiring substitute teachers would add to the salary costs of the Board, since the plaintiff was willing to take his religious leave without pay. Finally, in contrast to the facts in Trans World Airlines and in Huston, supra, the excusal of plaintiff's religious absences and his replacement by substitutes would not force the employer Board of Education to violate any existing seniority agreements.
The Board of Education also asserts that by complying with plaintiff's request for five to ten days of religious leave per year it would be obligated to allow leaves of absence to numerous other teachers "with variant and unpredictable requests for religious holidays." This obligation, according to the Board, would strain the management and the budget of the school system by creating the need for additional clerical employees to field such requests. Nowhere in the record, however, is there any evidence to show that, if plaintiff's beliefs were accommodated, how many, if any, of the religious beliefs of other teachers would require similar accommodation. Without such a factual basis the Court is unable and unwilling to reach a finding of undue hardship. Clearly, if the mere assertion by employers that accommodating the beliefs of one employee will cause undue hardship by forcing them to accommodate the beliefs of all its employees were sufficient, by itself, to relieve them of the duty of accommodation, then "no employer would ever be required to accommodate any religious belief of any employee." Jordan v. North Carolina National Bank, 565 F.2d at 72, 78-79 (Winter, J. dissenting).
Finally, the Board contends that allowing plaintiff's religious absences would be detrimental to the students, particularly handicapped students, by depriving them of a "stable and structured learning environment." Again, no evidence was presented to support this assertion. While the Court can speculate that instruction by a regular teacher is preferable to instruction by a substitute, we are unable to find that plaintiff's absence for five to ten days a year is sufficiently detrimental to warrant disqualifying him from employment as a teacher. In this regard, the analysis employed by the California Supreme Court in Rankins v. Comm'n on Professional Competence of Ducor, supra, is instructive. There as in this case, the plaintiff was a member of the Worldwide Church of God and was dismissed from his teaching position for refusing to work on the holy days. The court found that the teacher's discharge violated the constitutional prohibition against religious discrimination and ruled that in the absence of evidence that the teacher's absences and his replacement by substitutes had a substantial harmful effect on the educational program of the school district, the religious absences must be accommodated. The Rankins court then discussed the purpose underlying the duty of accommodation:
(It) is simply to lessen the discrepancy between the conditions imposed on . . . (plaintiff's) religious observances and those enjoyed, say, for observances by adherents of majority religions as a result of the five-day week and the Christmas and Easter vacations or regular school calendars.
24 Cal.3d at 179, 593 P.2d at 859, 154 Cal.Rptr. at 914.
We recognize, as did the Rankins court, that the constitutional right to exercise one's religion does not require "full equality of treatment of all employees' religious practices under all circumstances." Id. A case-by-case determination must be made. After examining the competing interests in the case at bar, we have concluded that the Board of Education has failed to demonstrate sufficiently compelling reasons to justify plaintiff's dismissal, or, that accommodation of his religious convictions would result in undue hardship. We acknowledge that the school district may be inconvenienced to some extent by accommodating plaintiff's religious beliefs, but the inconvenience which may result is clearly outweighed by the hardship on the plaintiff if the accommodation is not made.
Plaintiff also urges that the termination of his employment contract deprived him of his right to procedural due process under the fourteenth amendment. Specifically, he contends that the Board's action deprived him of both a property and liberty interest and that he was entitled to notice of the reasons for his termination and a meaningful opportunity to challenge those reasons at a hearing. See generally Bishop v. Wood, 426 U.S. 341, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976); Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972); Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Mozier v. Board of Education of Township of Cherry Hill, 450 F. Supp. 742 (D.N.J.1978);Cardona v. Claflen, No. 75-787 (D.N.J. September 10, 1976). However, in view of our finding that plaintiff's dismissal violated the first amendment, the procedural due process of the decision is irrelevant. We may fashion the appropriate remedy based upon defendant's infringement of plaintiff's first amendment rights. See Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d 31, 38 (3d Cir. 1974), vacated on other grounds, 421 U.S. 983, 95 S. Ct. 1986, 44 L. Ed. 2d 474 (1975).
As a result of his unlawful discharge from his teaching position, plaintiff is seeking compensatory damages, reinstatement, punitive damages, and attorney's fees.
Turning first to his claim for compensatory damages, we find that plaintiff is entitled to back pay computed from the date of his discharge to the date of judgment which will be entered in this case. Cf. Shaffield v. Northrop Worldwide Aircraft Services, Inc., 373 F. Supp. 937, 944 (M.D.Ala.1974) (plaintiff suing for religious discrimination under Title VII entitled to back pay from date of discharge to date of judgment). Based on the evidence adduced at trial plaintiff suffered a total wage loss in the amount of $ 3,960.00 during the 1978-79 and 1979-80 school years. It should be noted that plaintiff's interim earnings as a substitute teacher and tutor have operated to reduce the back pay otherwise allowable.
Plaintiff also contends that he is entitled to recover for the distress, mental suffering and emotional anguish which he alleges he suffered as a result of the Board's termination of his contract. While the Court recognizes that he may be compensated for mental and emotional distress under 42 U.S.C. § 1983, see Carey v. Piphus, 435 U.S. 247, 264, 98 S. Ct. 1042, 1052, 55 L. Ed. 2d 252 (1978), he must first prove that "such injury actually was caused," Id. In reviewing the record, we find that plaintiff has failed to present any credible evidence to support his allegation of mental and emotional distress. Accordingly, his claim for such damages must be denied.
In addition to the diminution of his wages, we believe that plaintiff can only be made whole again by reinstatement to his former position of employment with the defendant. Accordingly, the Board must reinstate Niederhuber to his former position as a full-time teacher under the same or better terms as his former contract provided. See Mead v. U. S. Fidelity & Guaranty Co., 442 F. Supp. 114, 133-34 (D.Minn.1977).
Plaintiff also seeks punitive damages. Based on the evidence presented at trial, however, we do not believe that punitive damages are warranted. As a general rule, punitive damages are awarded if the defendant's disregard of constitutional rights was "malicious and wanton." Paton v. LaPrade, 524 F.2d 862, 872 (3d Cir. 1975). Here the record is barren of any evidence of bad faith or malice. Accordingly, plaintiff's request for punitive damages will be denied.
Finally, plaintiff seeks the recovery of attorneys' fees. Under section 1983, attorneys' fees may be awarded to prevailing parties in the discretion of the court. See 42 U.S.C. § 1988 (1974). And "(s)uch awards have repeatedly been held to be appropriate in suits seeking redress for improper dismissal. E. g., Stolberg v. Members of Board of Trustees, 474 F.2d 485 (2d Cir. 1973); Donahue v. Staunton, 471 F.2d 475, 482-483 (7th Cir. 1972), cert. denied, 410 U.S. 955, 93 S. Ct. 1419, 35 L. Ed. 2d 687 (1973); Jinks v. Mays, 350 F. Supp. 1037 (N.D.Ga.1972). See Cooper v. Allen, 467 F.2d 836, 840 (5th Cir. 1972)." Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d at 44. Furthermore, a party seeking to recover under the Civil Rights Act of 1964 will ordinarily be granted attorneys' fees unless special circumstances ren- der such an award unjust. See Northcross v. Board of Education, 412 U.S. 427, 428, 93 S. Ct. 2201, 2202, 37 L. Ed. 2d 48 (1973); McPherson v. School District # 186, 465 F. Supp. 749, 754-55 (S.D.Ill.1978). We find no such "special circumstances" present here and therefore hold that plaintiff is entitled to recover reasonable attorneys' fees.
The Court will delay the entry of a final judgment pending the determination of a reasonable fee for plaintiff's attorneys. The award will be calculated in accordance with the standards set forth by the Court of Appeals for the Third Circuit in Lindy Brothers Builders, Inc. v. American Radiator and Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973) ("Lindy I ") and Lindy Brothers Builders, Inc. v. American Radiator and Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976) ("Lindy II "). The following general guidelines must be considered: (1) the number of hours spent in various legal activities by the individual attorneys; (2) the reasonable hourly rate for the individual attorneys; (3) the contingent nature of success, and (4) the quality of the attorneys' work.
If the parties cannot agree on the fee, plaintiff's attorneys shall, within 20 days from this date, file a motion for the allowance along with support as to the reasonableness of the charges.
The defendants may contest the allowance with similar proof, the same to be presented within 10 days after service of plaintiff's demands.
An appropriate order may be submitted by plaintiff's counsel.