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Heller v. Ebb Auto Co.

filed: November 5, 1993.


Appeal from the United States District Court for the District of Oregon. D.C. No. CV-86-1163-GEJ. George E. Juba, Magistrate Judge, Presiding*fn*

Before: James R. Browning, Mary M. Schroeder, and Cynthia Holcomb Hall, Circuit Judges. Opinion by Judge Hall.

Author: Hall

HALL, Circuit Judge:

Jerrold S. Heller appeals a district court judgment and a jury verdict in favor of EBB Auto Company in Heller's action alleging that EBB unlawfully terminated him in violation of Title VII, its Oregon statutory counterpart, and Oregon common law. Because we find that EBB failed to initiate any effort to reasonably accommodate Heller's religious practice of attending the ceremony in which his wife and children were converted to Judaism, we reverse.


In late 1984, EBB Auto Company hired Jerrold S. Heller, who is Jewish, as a used-car salesperson. At that time, Heller's wife, Katherine, was studying to convert from Catholicism to Judaism in anticipation of their oldest son's bar mitzvah. Because Jewish law mandates that children take their mother's religion, the bar mitzvah could not take place until Katherine's conversion.*fn1

Katherine completed her course of study in early May 1985. On Saturday, May 10, EBB notified Heller that due to an upcoming "tent sale" all vacations and leaves were cancelled for the weekend of May 17-19. On Tuesday, May 14, Rabbi Yonah Geller telephoned Heller at work and told him that the conversion ceremony for Katherine and her study group could take place on the morning of either the upcoming Friday (May 17) or Sunday (May 19). Because he assumed that the dates could not be changed, Heller never attempted to reschedule the ceremony.

Heller telephoned his immediate supervisor, Collyer Young, explained his situation, and asked for two hours off on either Friday or Sunday morning. Young asked if there was any way to hold the ceremony at another time. Upon Heller's negative response, Young gave him permission to miss a Friday morning sales meeting. Heller then telephoned Geller and informed the rabbi that he would be able to attend a ceremony on Friday morning. Geller subsequently informed the other members of Katherine's study group and made arrangements for the ceremony.

The next day (Wednesday, May 15), Young's superior, Greg Bowman, learned of Heller's leave of absence and countermanded it. Bowman instructed Young to inform Heller that he was required to attend the meeting and that, if he failed to do so, he would be fired. When Heller insisted on attending the ceremony, Young fired him.

That night, Young telephoned Heller's home, spoke to Katherine, and left word that he wanted to discuss the matter. The following day (Thursday, May 16), Heller went to EBB to pick up his final paycheck and Young attempted to talk things over with him. Heller refused and the parties had no further contact. Heller attended the conversion ceremony on Friday, May 17.

Heller filed suit claiming that his dismissal violated Title VII and its Oregon statutory counterpart and constituted wrongful termination under Oregon common law. The district court granted summary judgment for EBB on the basis that an earlier denial of Heller's Oregon unemployment compensation claim was res judicata. A Ninth Circuit panel reversed and remanded the case to the district court. Heller's statutory claims were tried by the court, which granted judgment for EBB, and the wrongful termination claim was tried by a jury, which rendered a verdict for EBB. Heller appeals the judgment and verdict.


Title VII makes it an unlawful employment practice for an employer "to discharge any individual . . . because of such individual's . . . religion." 42 U.S.C. § 2000e-2(a)(1) (1988). Title VII further provides:

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 or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.

Id. ยง 2000e(j). "The . . . effect of this definition is to make it an unlawful employment practice . . . for an employer not to make reasonable accommodations, short of undue hardship, for the religious practice of his employees . . . ." Trans World Airlines, Inc. v. ...

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