Ali v. Alamo Rent-A-Car, Inc. , 8 F. App'x 156 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ZEINAB ALI, 
Plaintiff-Appellant,
v.
ALAMO RENT-A-CAR, INCORPORATED,
Defendant-Appellee,
and
H. SCOTT COOPER,  No. 00-1041
Defendant.
METROPOLITAN WASHINGTON
EMPLOYMENT LAWYERS ASSOCIATION;
AMERICAN CIVIL LIBERTIES UNION OF
VIRGINIA, INCORPORATED; THE
AMERICAN JEWISH COMMITTEE,
Amici Curiae.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-99-1025-A)
Argued: December 4, 2000
Decided: March 6, 2001
Before WILKINSON, Chief Judge, and LUTTIG and MICHAEL,
Circuit Judges.
Affirmed by unpublished per curiam opinion.
2 ALI v. ALAMO RENT-A-CAR
COUNSEL
ARGUED: Kelly Marie Baldrate, VICTOR M. GLASBERG &
ASSOCIATES, Alexandria, Virginia, for Appellant. Karen Ann
Khan, JACKSON, LEWIS, SCHNITZLER & KRUPMAN, Washing-
ton, D.C., for Appellee. ON BRIEF: Victor M. Glasberg, VICTOR
M. GLASBERG & ASSOCIATES, Alexandria, Virginia, for Appel-
lant. Robert A. Hirsch, JACKSON, LEWIS, SCHNITZLER &
KRUPMAN, Washington, D.C., for Appellee. Woodley B. Osborne,
OSBORNE & DEUTSCH, Washington, D.C., for Amici Curiae.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Zeinab Ali sued her former employer, Alamo Rent-A-Car, Inc.
(Alamo), under Title VII for refusing to allow her to wear a head scarf
at work that was mandated by her religion. The district court dis-
missed Ali’s complaint for failure to allege that she suffered an
adverse employment action. Ali now appeals, arguing that Title VII
religious discrimination claims do not require a showing of adverse
employment action. We affirm.
I.
We accept the well-pleaded facts in Ali’s complaint and recite
them in the light most favorable to her. See Brooks v. City of Winston-
Salem, 85 F.3d 178, 181 (4th Cir. 1996). In August 1996 Alamo hired
Ali as a management trainee. While on the job, she wore a head scarf
along with her company uniform. She wore the head scarf in accor-
dance with her Islamic religious beliefs. In December 1996 H. Scott
Cooper became Ali’s new supervisor. Cooper told Ali that she would
have to stop wearing the head scarf or be transferred to a position in
ALI v. ALAMO RENT-A-CAR 3
which she would not be in frequent contact with customers. Ali
refused to stop wearing a scarf, and Cooper transferred her.1
Ali sued Alamo, claiming that Alamo’s refusal to allow her to wear
a head scarf was employment discrimination in violation of Title VII.
The district court dismissed Ali’s complaint for failure to allege an
adverse employment action. The court gave Ali eleven days to refile
a complaint alleging such action. Ali concluded that she could not
meet this circuit’s standard for an adverse employment action. There-
fore, instead of refiling the complaint, Ali filed a motion to amend the
judgment, arguing that Title VII religious discrimination claims do
not require a showing of adverse employment action. The court
denied the motion and Ali now appeals.
II.
We review de novo the trial court’s dismissal of Ali’s complaint.
See Chisolm v. Transouth Fin. Corp., 95 F.3d 331, 334 (4th Cir.
1996). Ali claims that Alamo’s refusal to allow her to wear a head
scarf was in violation of 42 U.S.C. § 2000e-2(a). That section pro-
vides that it is 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 race, color, reli-
gion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or appli-
cants 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 race, color, religion, sex, or
national origin.
1
Alamo subsequently terminated Ali as part of a reduction in force.
She concedes that her termination was lawful and unrelated to the events
that form the basis for this suit.
4 ALI v. ALAMO RENT-A-CAR
§ 2000e-2(a). Under this section an employee who claims that she
faced discrimination on the basis of race, color, sex, or national origin
must show that she suffered some type of adverse employment action.
See, e.g., Clearwater v. Indep. Sch. Dist. #166, 231 F.3d 1122, 1127
(8th Cir. 2000) (race); Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225
F.3d 1115, 1125 (9th Cir. 2000) (national origin); Boone v. Goldin,
178 F.3d 253, 256 (4th Cir. 1999) (sex). The adverse employment
action requirement is derived from the statute’s requirement that the
employer’s practice relate to "compensation, terms, conditions, or
privileges of employment" or that the practice "deprive any individual
of employment opportunities or otherwise adversely affect his status
as an employee." § 2000e-2(a)(1) & (2). Ali concedes that she did not
suffer any legally cognizable adverse employment action.2 She
claims, however, that Title VII religious discrimination claims do not
require a showing of adverse employment action. In Chalmers v.
Tulon Co., 101 F.3d 1012, 1019 (4th Cir. 1996), we said that a plain-
tiff in a Title VII religious discrimination case must show adverse
employment action. Ali argues that Chalmers is not controlling
because the question of whether adverse employment action is
required was not squarely presented. In Chalmers the plaintiff had
been fired and therefore satisfied the requirement. See id. at 1017. Ali,
therefore, argues that Chalmers’s discussion of the adverse employ-
ment action requirement is dicta. We need not decide whether Chal-
mers is controlling because Title VII religious discrimination claims
clearly require a showing of adverse employment action.
Section 2000(e)-2(a) joins religion with race, color, sex, and
national origin in the same sentence. Because race, color, sex, and
national origin require a showing of adverse employment action, Ali
bears the burden of showing why religion should be treated differ-
ently. Ali argues that (1) the statutory definition of "religion," (2) leg-
islative history, (3) Equal Employment Opportunity Commission
(EEOC) regulations, (4) and case law all support the fact that religion,
unlike the other bases for discrimination, does not require a showing
of adverse employment action. We take up each of Ali’s arguments
in turn.
2
Because Ali concedes that she did not suffer any adverse employment
action, we are not required to consider what actually constitutes adverse
employment action under Title VII.
ALI v. ALAMO RENT-A-CAR 5
Ali claims that the accommodation provision in the statutory defi-
nition of "religion" dictates that religion should be treated differently.
"Religion" is defined as including "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 . . . reli-
gious observance or practice without undue hardship on the conduct
of the employer’s business." 42 U.S.C. § 2000e(j). Congress inserted
the accommodation provision in the definition of religion in the wake
of Dewey v. Reynolds Metals Co., 429 F.2d 324, 330 (6th Cir. 1970),
aff’d by an equally divided court, 402 U.S. 689 (1971). In Dewey the
circuit court held that an employer does not discriminate on the basis
of religion simply by failing to accommodate an employee’s religious
practice. In light of Dewey the accommodation provision is best seen
as clarifying that an employer does discriminate on the basis of reli-
gion if it can accommodate the religious practice without undue hard-
ship. However, the accommodation provision does not affect the
statute’s underlying requirement that the employer’s discriminatory
practice relate to "compensation, terms, conditions, or privileges of
employment" or that the practice "deprive any individual or employ-
ment opportunities or otherwise adversely affect his status as an
employee." § 2000e-2(a)(1) & (2). In other words, the accommoda-
tion provision does not affect the basic statutory requirement for
adverse employment action. As with sex, race, color, and national ori-
gin, a plaintiff claiming religious discrimination under Title VII must
show adverse employment action. Title VII only prohibits employer
practices where the employer discriminates on the basis of religion
and the employee suffers an adverse employment action. Therefore,
Ali’s reliance upon the accommodation provision in the definition of
religion is misplaced.
Ali also relies upon the legislative history accompanying the adop-
tion of the accommodation provision in an attempt to show that reli-
gious discrimination claims do not require a showing of adverse
employment action. Ali cites to the history in which Congress
expressed concern with the Dewey decision. See, e.g., 118 Cong. Rec.
706 (1972) (statement by Sen. Randolph). Again, in Dewey the circuit
court held that an employer does not discriminate on the basis of reli-
gion simply by failing to accommodate an employee’s religious prac-
tice. We do not question that Congress adopted the accommodation
provision in response to the Dewey decision. However, as discussed
6 ALI v. ALAMO RENT-A-CAR
above, Congress’s concern about the Dewey decision is not inconsis-
tent with Title VII’s requirement for adverse employment action.
Therefore, the legislative history does not show that Congress
intended to allow an employee to recover for religious discrimination
under Title VII without showing an adverse employment action.
Ali also cites to the EEOC regulations implementing Title VII with
respect to religious accommodation. The regulations, however, simply
track the language of the accommodation provision in the statutory
definition of religion. See 29 C.F.R. § 1605.2. The regulations do not
address whether an adverse employment action is required.
Finally, Ali argues that a few cases stand for the proposition that
a showing of adverse employment action is not required in Title VII
religious discrimination cases. However, none of the cases she cites
stand for, or even suggest, such a proposition. For example, Ali relies
upon Rodriguez v. City of Chicago, 156 F.3d 771 (7th Cir. 1998). In
Rodriguez the plaintiff police officer, who was Catholic, objected to
being assigned to guard abortion clinics. The officer was employed
throughout the litigation. Because the officer remained employed, Ali
argues that Rodriguez held that a showing of adverse employment
action is not required. However, Rodriguez rejected the plaintiff’s
claim on an alternative ground without ever reaching the question of
whether a showing of adverse employment action is required. See id.
at 776. Rodriguez, therefore, is of no help to Ali.
In conclusion, a Title VII plaintiff claiming discrimination on the
basis of religion must allege adverse employment action in order to
survive a motion to dismiss under Rule 12(b)(6). The judgment of the
district court is therefore
AFFIRMED.