                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                    UNITED STATES COURT OF APPEALS
                                                                March 28, 2007
                        FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                                                                    Clerk


                             No. 06-11068
                           Summary Calendar



     DANIEL STOLLEY,

                                             Plaintiff-Appellant,

                                  v.

     LOCKHEED MARTIN AERONAUTICS COMPANY,

                                             Defendant-Appellee.



         Appeal from the United States District Court for the
            Northern District of Texas, Fort Worth Division
                              4:04-CV-303



Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*



     Plaintiff Daniel Stolley appeals the district court’s grant of

summary judgment for the defendant, Lockheed Martin Aeronautics Co.

(“Lockheed”) in this Title VII religious discrimination case.             We

AFFIRM.

                             I. BACKGROUND


     *
       Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
       On February 13, 2003, Stolley applied for employment as an

aircraft assembler at Lockheed’s manufacturing facility in Fort

Worth, Texas.      The application included a question asking whether

Stolley was able to perform shift work, rotational work schedules,

overtime, and work schedules that included Saturdays and Sundays.

Stolley answered in the affirmative and expressed no concerns at

that time.       Two days later, Stolley accepted Lockheed’s job offer

and agreed to start on February 24.                 On February 27, however, he

learned that he had been assigned to a shift that include working

from 3:45 p.m. to 12:15 a.m. on Fridays.                  This presented a problem

for Stolley because, as a member of the United Church of God, he

observes the Sabbath from sundown on Friday until sundown on

Saturday, and is prohibited from working during that time.

       Stolley     notified     Lockheed       of   his    predicament,    and   the

assignment supervisor inquired about re-assigning Stolley to a

different department with an earlier shift that would not conflict

with his religious observance. The other department saw no problem

with the reassignment, but the labor relations department advised

that    the   seniority       provisions       of   the    collective     bargaining

agreement     (“CBA”)     between     Lockheed         and     the   International

Association of Machinists and Aerospace Workers (“the Union”)

prohibited any such reassignment.               The CBA governs the terms of

employment for aircraft assemblers like Stolley, and includes

provisions       that   allocate    preference         for    shift-swapping     and

transfers based on seniority.

                                           2
     Stolley    next       contacted   his      Union   representative,     Norm

Huddleston, and a labor analyst, Daryl Rous, to evaluate whether

Lockheed could accommodate him, either through transfer to an

earlier shift or allowing him to work different hours than those

established for that shift.         The CBA forbid the transfer, however,

and required Lockheed to pay Stolley overtime for any make-up hours

worked outside the established shift.1            The Union was unwilling to

waive the applicable provisions.

     On March 14, Lockheed fired Stolley for leaving work before

sundown on each of the Fridays that he had been scheduled to work.

At that time, Stolley had been employed for less than 35 days and

was still a probationary employee.

     In the district court, Stolley argued that Lockheed violated

the religious discrimination provisions of Title VII of the Civil

Rights Act     of   1964    by   failing   to    reasonably   accommodate   his

religious beliefs through reassignment, and by asking prospective

employees whether they could work on Saturdays and Sundays, which

creates a disparate impact on individuals with religious beliefs

similar to Stolley’s. The district court granted Lockheed’s motion

for summary judgment, and Stolley appeals.

     We review the district court’s grant of summary judgment de

novo, applying the same standard as the district court.             Atkins v.


     1
      Under the CBA, Lockheed would have had to pay Stolley
overtime pay 1.5 times his hourly rate for each hour worked for
reporting early on Fridays, and 2 times his hourly rate for any
hours worked on the weekend.

                                       3
Hibernia Corp., 182 F.3d 320, 323 (5th Cir. 1999).                  Summary

judgment is appropriate when the record establishes “that there is

no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c).

                                II. DISCUSSION

      This case arises under Title VII, which prohibits religious

discrimination in employment.        See 42 U.S.C. § 2000e–2(a)(2003).

It is undisputed that Stolley informed Lockheed of his bona-fide

religious belief that conflicted with an employment requirement,

and   was   fired   because    of   his   failure   to   comply   with   the

requirement, thus establishing a prima-facie case of religious

discrimination.     See Weber v. Roadway Express, Inc., 199 F.3d 270,

273 (5th Cir. 2000).       The burden shifts to Lockheed to show that it

was unable to reasonably accommodate Stolley’s beliefs without

undue hardship.      Id.      The district court, in granting summary

judgment, found that Lockheed could not reasonably accommodate

Stolley because of the seniority provisions of the CBA.           Title VII

does not require an employer to “deny the shift and job preferences

of some employees,” or “deprive them of their contractual rights,

in order to accommodate . . . the religious needs of others.”

Trans World Airlines v. Hardison, 432 U.S. 63, 81 (1977).

      On appeal, Stolley argues that the trial court erred by (1)

drawing inferences in favor of summary judgment from disputed

facts, (2) evaluating only the accommodations that Stolley himself


                                      4
proposed, thereby overlooking Lockheed’s failure to seek reasonable

accommodations      with    the    Union,      and    (3)   holding     that   no

accommodations were possible under the CBA.

     On summary judgment, inferences drawn from disputed facts must

be viewed in the light most favorable to the party opposing the

motion.    Pruitt v. Levi Strauss & Co., 932 F.2d 458, 460 (5th Cir.

1991).     The fact at issue is whether Lockheed’s labor analyst,

Rous,    asked   the    Union   whether   it    would    waive    the   seniority

provision of the CBA.       Rous first spoke with Union representative

Huddleston, who stated that the Union was unwilling to waive the

provisions.      Rous says that he then spoke with Bennie Baker,

another     Union      representative,      who      reiterated     Huddleston’s

statement. Baker, however, does not remember discussing the matter

with Rous prior to Stolley’s termination.               Based on this, Stolley

argues that whether Rous asked the Union to waive the provision is

a disputed fact.       However, it is only disputed whether Rous spoke

to Baker, not whether Rous spoke to Huddleston.                   Therefore, the

court did not draw an inference in favor of Lockheed by finding

that the Union — speaking to Rous through Huddleston — refused to

waive the provisions.2

          Stolley next argues that the district court erred by only

     2
      Stolley also argues that the district court erred in
concluding that the single conversation foreclosed all the
discussion of accommodation required by an employer. However, the
record shows that Stolley and Lockheed made the Union fully aware
of the need for an accommodation, and Stolley does not provide any
authority suggesting a greater duty.

                                      5
evaluating the accommodations that Stolley had earlier proposed,

thereby overlooking Lockheed’s failure to seek other reasonable

accommodations with the Union.                He specifically points to two

potential accommodations he believes Lockheed should have pursued.3

Contrary to Stolley’s argument, however, the order granting summary

judgment      suggests     that   the    district    court    considered    these

additional      accommodations     —    referring    to   them   as   “belatedly”

suggested by Stolley — and found that they too ran afoul of the

CBA.       We therefore find that the district court did not overlook

these alternative accommodations, and turn to the question of

whether the court was correct in finding that, as a matter of law,

Lockheed could       not    reasonably    accommodate      Stolley’s    religious

beliefs.

       As stated above, Title VII does not require employers to make

religious accommodations that infringe on the rights of fellow

employees.      See Trans World Airlines, 432 U.S. at 81.              Moreover,

where       seniority-bidding      provisions       in    collective-bargaining

agreements conflict with the religious beliefs of an employee so

that no accommodation is possible, an employer will not be liable

for its failure to accommodate.               Id. at 79; Brener v. Diagnostic

Ctr. Hosp., 671 F.2d 141, 146 (5th Cir. 1982).


       3
      The additional suggested accommodations for Lockheed were (1)
placing Stolley in one of three vacant early-shift positions that
were instead filled with new hires, or (2) exercising its right of
management, found in the CBA, to make a transfer outside seniority
lines for “other legitimate reasons.”

                                          6
       Had Stolley expressed his need for religious accommodation

during the hiring process, before he was assigned to a shift,

Lockheed may have been able to place him in the earlier shift

without implicating the CBA.     After Stolley was hired, assigned,

and began work, however, reassigning him to the earlier shift would

have violated the provision in the CBA that allocates the right to

such transfers based on seniority. Because the Union was unwilling

to waive the provision, Lockheed could not reasonably accommodate

Stolley without running afoul of the CBA.

       The additional accommodations suggested by Stolley — placing

Stolley in one of three vacant early-shift positions that were

instead filled with new hires; or exercising Lockheed’s right of

management, found in the CBA, to make a transfer outside seniority

lines for “other legitimate reasons” — would have also violated the

CBA.    While there were vacancies on the earlier shift at the time

Lockheed fired Stolley that were subsequently filled with new

hires, the CBA already applied to Stolley as an existing employee,

and forbid the transfer. Similarly, Lockheed’s right of management

to make transfers for “other legitimate reasons” cannot sidestep

clear precedent that religious accommodation does not trump other

workers’ rights under the CBA.   See Trans World Airlines, 432 U.S.

at 81.

       For the foregoing reasons, we AFFIRM the district court.




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