On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-07-cv-04043) District Judge: Honorable John P. Fullam.
The opinion of the court was delivered by: Sloviter, Circuit Judge.
Before: SLOVITER, ROTH, and TASHIMA,*fn1 Circuit Judges
The Equal Employment Opportunity Commission ("EEOC") appeals from the decision of the District Court granting the summary judgment motion of defendant, the GEO Group, Inc. ("GEO"). GEO is a private company that was contracted to run the George W. Hill Correctional Facility (the "Hill Facility"), which is the prison for Delaware County, Pennsylvania. The EEOC filed its complaint pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq., on behalf of a class of Muslim women employees, alleging that GEO violated Title VII's prohibitions on religious discrimination when it failed to accommodate the class members by providing them an exception to the prison's dress policy that otherwise precluded them from wearing Muslim head coverings called khimars at work. GEO moved for summary judgment, arguing in part that a deviation from its policy would cause it an undue hardship by compromising its institutional interests in security and safety. Although the EEOC had filed a cross motion for summary judgment, on appeal it argues that the District Court erred because questions of material fact exist about whether accommodating the class would in fact constitute an undue hardship for GEO.
GEO is a private, international corporation that, among other related things, runs federal and state prisons in the United States. The Hill Facility in Thornton, Pennsylvania holds "pre-trial detainees and persons serving a county sentence of two years less one day or a state sentence of five years less one day." Appellant's Brief at 3 (quotation omitted). During the relevant period Raymond Nardolillo was the warden at the Hill Facility and Matthew Holm, who was hired in August 2004, was the deputy warden. In about February 2008, Holm became warden of the Hill Facility.
In April 2005, the Hill Facility instituted a dress policy that provided that "[n]o hats or caps will be permitted to be worn in the facility unless issued with the uniform." App. at 207. The new policy also stated that "[s]carves and hooded jackets or sweatshirts will not be permitted past the Front Security Desk." App. at 207. These directives were interpreted to prohibit the wearing of a khimar, an "Islamic religious head scarf, designed to cover the hair, forehead, sides of the neck, shoulders, and chest,"*fn2 which was until then worn by some female Muslim employees inside of the Hill Facility. App. at 15.
To reinforce the April 2005 prohibitions on hats, head scarves and hoods, Holm issued a memorandum on October 24, 2005, entitled "UNIFORM POLICY," that stated:
Reminder! All employees, while on duty, will if required, wear only an official GEO uniform, which adheres to the dress code and standards, described in Policy 300.19. This includes, but [is] not limited to the length of your hair, scarves, hooded jackets, sweatshirts and specifically hats. The following are excerpts form [sic] the policy:
"No hats or caps will be permitted to be worn in the facility unless issued with the uniform."
"The Uniform described below is not to be altered, modified, or embellished upon. Only items approved by the Warden will be authorized."
Those employees not subjected to the uniform policy will adhere to the Facility dress code, which is posted at the Front Entrance Security Post/ION Scan.
This means that all hats, caps or religious attire will not be permitted to be worn with your uniform or by non-uniformed employees unless specifically authorized by the Warden. At this time there are no authorized hats, caps or attire, which can be worn inside the jail and there are no exceptions to this policy.
After the October 2005 memorandum was issued, Holm and Nardolillo adopted and enforced a "zero tolerance headgear policy...." Appellant's Br. at 6. According to GEO, the no-headgear policy was adopted for safety and security reasons to prevent the introduction of contraband into the prison facility and to avoid misidentification.
Three Muslim women employees of the Hill Facility, Carmen Sharpe-Allen, Marquita King, and Rashemma Moss, protested, claiming that wearing of the khimar was required by the Islamic religion. They sought an exception to the policy, arguing that before the April 2005 dress code, they had all been wearing some style of khimar or head covering at work. After the April 2005 dress code was instituted, they were all prevented from doing so.
Sharpe-Allen was hired as a medication nurse at the Hill Facility in 2004. During her interview for that position she explained that her faith required her to wear a khimar, and that she "wasn't willing to compromise" concerning the wearing of her khimar at work. App. at 43. According to Sharpe-Allen, the interviewer told her that "[h]e didn't see it being a problem." App. at 44. Part of Sharpe-Allen's initial job at the Hill Facility was to "go from cell block to cell block" to "dispense medication" accompanied by a prison "officer." App. at 45.
In early 2005, Sharpe-Allen became the chronic infectious disease nurse, a position in which she worked "closely with the doctor" in the infirmary "with the inmates who had infectious diseases, such as hepatitis, [and] HIV... [to] ma[k]e sure that they got their medication, [and] made sure it was ordered.... [and in which she] did all of the PPDs, which is the tuberculosis test, for the entire prison." App. at 49. "From November 2004 through mid-July 2005, when Sharpe-Allen went out on medical leave, she wore her khimar to work daily at" the Hill Facility. Appellant's Br. at 8. When Sharpe-Allen was preparing to return to work from that medical leave, colleagues called to tell her that she could not "wear [her] khimar when [she] c[a]me back to work." App. at 52. Sharpe-Allen then spoke with someone in human resources at the Hill Facility who told her that "the khimar would be an issue." App. at 54. As a result, Sharpe-Allen asked to speak with Warden Nardolillo.
According to Sharpe-Allen, when she and Nardolillo spoke,*fn3 the warden told her that the policy would be enforced against her but asked if she would be willing to "wear a headpiece [or] hairpiece...." App. at 58. He also told Sharpe-Allen that her "job was there, if [she] wanted it, [she] just couldn't wear [her] khimar," but that if she refused to work without the khimar or resign, the prison would have to fire her. App. at 59. Sharpe-Allen told Nardolillo that she enjoyed her job and that the khimar had never presented any problem in the past, but also that she would not compromise about wearing the khimar to work. In December 2005, Allen was fired on the ground that "she had 'effectively abandoned her job' by 'refus[ing] to comply with [the] directive to return to work without the wearing of her'" khimar. Appellant's Br. at 10 (quoting App. at 216-17).
Marquita King is a Muslim woman who was hired at the Hill Facility in July 2000 as an "intake specialist" at the prison: the person who does the paperwork to process new prisoners into the facility. King's job entailed such duties as performing a "bench warrant check" on new prisoners. App. at 129. She would also have corrections officers bring individual prisoners to her so that she could ask them questions and input their answers into a computer. Unlike the corrections officers, she had no keys to the facility. At her interview for the job, King wore her khimar and a veil. The interviewer asked King if she would take her veil off at work, and King agreed that would be acceptable. There was no discussion of King's khimar at the interview, and she wore it to work for the first five years of her employment.
In October 2005, King was told by a fellow employee that she and other Muslim women were no longer allowed to wear their khimars at work. King then called warden Nardolillo who, according to King, told her that she "will be fired if [she] ha[s] a khimar on [her] head" at work. App. at 131. Stressed by this new situation, King took leave for the next four to six weeks. When she returned, King took off her khimar at work.
Rashemma Moss began working as a correctional officer at the Hill Facility in March 2002, a job which sometimes required her to be close to inmates and sometimes even to come into physical contact with them. In July 2005, after Moss took her Shahada -- "the Muslim confession of faith," Appellant's Br. at 6 n.2 -- at work she began to wear underneath her hat a triangle shaped underscarf that she would tie around her head. In a meeting in October 2005, Nardolillo told Moss that she could no longer wear her head scarf, and that she would be suspended without pay if she did. Thereafter, Moss stopped wearing her head scarf to work.
In September 2007, the EEOC as plaintiff, with Sharpe-Allen as the charging party, filed a complaint alleging that GEO violated Title VII's prohibitions on religious discrimination when GEO failed to accommodate the religious beliefs of Sharpe-Allen and other female Muslim GEO employees by refusing their requests for an exception to the Hill Facility's dress policy that would have allowed them to wear khimars at work.
GEO moved for summary judgment, in part asserting the affirmative defense that it would be an undue hardship as a matter of law for the prison to allow its Muslim employees a complete exception to the non-headgear policy because such an accommodation would compromise the prison's interest in safety and security and/or would result in more than de minimis cost. The EEOC opposed that motion on the ground that these interests were insufficiently founded, relying heavily on the report of its expert, George Camp (the "Camp Report"), which generally concluded that: "(1) GEO's professed reasons for denying any of its female employees the ability to wear a khimar lack merit and substance; (2) GEO made no genuine attempt to, nor reasonable offer of, an alternative method (of which several exist) for accommodating the wearing of the khimar; and (3) [t]here is no sound legitimate correctional reason for GEO to deny its female employees to wear a khimar within the secure perimeter of the facility." App. at 219.
The District Court granted GEO's motion, finding dispositive this court's reasoning in Webb v. City of Phila., 562 F.3d 256, 258 (3d Cir. 2009). In Webb this court held that the dress code adopted by the Philadelphia police, which did not "authorize the wearing of religious symbols or garb as part of the uniform" and therefore precluded Muslim women from wearing khimars on the job, was not a violation of Title VII. Id. In granting GEO's motion for summary judgment, the District Court concluded that there was "no meaningful distinction between prison guards and similar personnel, on the one hand, and police officers," who were at issue in Webb. EEOC v. GEO Group, Inc., No. 07-cv-04043-JF, 2009 WL 1382914, at *1 (E.D. Pa. May 18, 2009). The Court also stated that the "same considerations advanced to justify the regulation in question apply equally to prison guards and employees working in the medical department." Id.
Our review of the District Court's grant of summary judgment is plenary. Jackson v. Danberg, 594 F.3d 210, 215 (3d Cir. 2010). Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).*fn4
Title VII of the Civil Rights Act of 1964 reads, in relevant part:
(a) It shall be an unlawful employment practice for an employer -
(1) 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... religion...; or
(2) to limit, segregate or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's... religion....
42 U.S.C. § 2000e-2(a). "Religion" is defined to include "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." Id. § 2000e(j).
This court has recently stated: "To establish a prima facie case of religious discrimination, the employee must show: (1) she holds a sincere religious belief that conflicts with a job requirement; (2) she informed her employer of the conflict; and (3) she was disciplined for failing to comply with the conflicting requirement." Webb, 562 F.3d at 259. "[T]he burden [then] shifts to the employer to show either  it made a good-faith effort to reasonably accommodate the religious belief, or  such an accommodation would work an undue hardship upon the employer and its business." Id. (citation omitted).
GEO does not argue that the EEOC failed to present a prima facie case. Instead, GEO argues that it offered plaintiffs "a reasonable accommodation, by offering to permit the Muslim women employees to wear a hairpiece in place of the khimar" because "it fulfills the stated religious requirement that the hair be covered." Appellee's Br. at 13-14; see Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68 (1986) (noting that there is "no basis in either the statute or its legislative history for requiring an employer to choose any particular reasonable accommodation."). GEO notes that one female Muslim employee found that a hairpiece was sufficient to fulfill the religious requirement to cover her hair. We are not persuaded by this argument. There is no evidence about the proposed hairpiece nor any details about the Muslim employee who found it acceptable.
We are unwilling to delve into any matters of theology, and will therefore decline GEO's invitation to decide on our own what might constitute a reasonable substitute for a khimar under the Islamic faith. GEO does not challenge the assertion of the three Muslim employees that they believe wearing the khimar is integral to their religion, and we proceed on the basis that this is their sincere religious belief.
In response to the EEOC's motion for summary judgment, which relied primarily on the Camp Report and the deposition testimony of the three female employees, GEO proffered the testimony of the two GEO wardens. Warden Holm testified that before he became deputy warden at the Hill Facility, he had previously worked as the lead investigator for GEO at the Taft Correctional Institution in Taft, California. In that position, he was responsible for "initial criminal investigation on new crimes committed by inmates, all serious crimes committed by inmates." App. at 169. His "personal focus" was on "internal affairs, violations of the rules by staff." App. at 169. He investigated GEO staff for, among other things, having introduced contraband to prisons, and for "actually selling and distributing controlled substances to inmates." App. at 169. Holm was also the lead investigator of "a fairly large disturbance at the Taft Correctional Facility that involved approximately 900 to 1,000 inmates," an incident that he described as "more or less a riot...." App. at 169. According to Holm, that investigation involved "issues about identification of inmate and video surveillance." App. at 169. Before working with the GEO Group, Holm was a California police officer for 18 years.
In the year after Holm was hired at the Hill Facility, he and Nardolillo made numerous changes to the prison's policies to address what they perceived as the prison's "need to... improve the performance of the facility and the staff and to enhance security and tighten a few things up." App. at 171. One thing that Holm had noticed was that despite a long-standing, apparently unspoken ban on prison employees wearing unauthorized hats, that ban was not well-enforced. Although the only hats that were authorized were a black baseball hat with the GEO logo on and a knit cap that could be used outdoors, Holm had observed employees wearing unauthorized hats with "different logos, different things that weren't appropriate to the uniform of the GEO Group," App. at 184, and wearing hats "backwards and sideways," App. at 183. During his deposition, Holm also recalled one incident of an employee wearing a "New York Yankees baseball hat inside the institution while in full uniform." App. at 183.
This concerned Holm in part because of his view that "the band inside of a baseball cap is an excellent place to hide small amount[s] of narcotics and small amounts of contraband. A wire, a small knife, anything can go in there." App. at 183. "[A]nother issue" he had with employees wearing hats was "based on [his] personal experience": the "identification of an individual wearing a hat when they would be inside [the] secure portion [of the prison]... where we rely heavily on video surveillance... [because a hat] distorts the identity of the individual wearing the cap, which to me is an overall safety and security issue for the prison because it would be entirely possible for an inmate to get a uniform shirt, put a hat on, pull it real close... [so that] it distorts the view of their face and you can't tell who they are when they walk out." App. at 183.
Holm's experience was that "during the riot in Taft Correctional Facility based on the review of video surveillance, which is what [GEO] based most of [its] investigation on.... there were probably better than 300 or 400 inmates that [GEO] couldn't identify... simply because they had a baseball cap on." App. at 184. Moreover, one "inmate put a hat on... change[d] [his] shirt... pulled [a] hat over his face and walked out the front door." App. at 203. As a result, Holm approached Nardolillo to crack down on employees wearing unauthorized hats and other "headgear."
When asked for additional reasons for why this no-khimar policy was adopted, Holm opined that a head scarf could be "taken away from an individual and used against them, in any form of a choking movement.... [i]t could be used as a restraint device... [and it] provides unwanted material for inmates to grab ahold of and/or use against [the] staff." App. at 201. Asked to distinguish the safety difference presented by a "head covering" and that presented by "someone's shirt or someone's pants," Holm answered that a khimar, if "grabbed from the behind by the sides of it,... immediately becomes a choking instrument," App. at 201, as would a man's tie, an item of clothing also generally forbidden for anyone who "has direct contact with inmates on a daily basis....," App. at 202. Holm also noted that because a "khimar [has] [a] band right across the forehead and... it has the two pieces of material that come down the side of [the] face, anything that casts a shadow on the face, be it from above or the side... it casts a shadow," making identification difficult. App. at 202.
Warden Nardolillo also explained that the justification for the new zero-tolerance headgear policy was instituted because "[w]e have had some security issues that were becoming extremely problematic. One primarily being the increased introduction of ...