                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                JAN 7 1999
                                     TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                    Clerk

 DON M. WEBER, II,

           Plaintiff-Appellant,
 v.                                                          No. 98-3172
 LEASEWAY DEDICATED LOGISTICS,                       (D.C. No. 97-CV-2209-GTV)
 INC., formerly known as Leaseway                              (D. Kan.)
 Logistics Service, a California                         (5 F.Supp.2d 1219)
 corporation,

           Defendant-Appellee.




                                  ORDER AND JUDGMENT*


Before SEYMOUR, Chief Judge, BALDOCK, and HENRY, Circuit Judges.**


       Plaintiff Don M. Weber appeals the district court’s grant of summary judgment in

favor of Defendant Leaseway Dedicated Logistics, Inc. (hereafter “Leaseway”) under

Fed. R. Civ. P. 56. Also before the court is Plaintiff’s motion to proceed on appeal in


       *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and appellate record, this panel has determined that
oral argument would not materially assist the determination of this appeal. See Fed. R.
App. P. 34(a) (2)(C); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument.
forma pauperis. In his complaint, Plaintiff asserted that Defendant discriminated against

him because of his religious beliefs in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq., when Defendant refused to hire Plaintiff unless he

provided Defendant with his social security number. Our jurisdiction arises under 28

U.S.C. § 1291. We review the district court’s grant of summary judgment de novo, using

the same standard applied by the district court. Aramburu v. The Boeing Co., 112 F.3d

1398, 1402 (10th Cir. 1997). We grant Plaintiff’s motion to proceed in forma pauperis,

and affirm the district court.

       Plaintiff refuses to obtain or use a social security number because he claims it

represents the “mark of the beast” as described in the Book of Revelations in the Bible. In

April 1996, Plaintiff applied for a position as a truck driver with Defendant. On the

application for employment Plaintiff refused to provide a social security number.

Defendant did not hire Plaintiff and informed him that he would not be hired without a

social security number.

       We analyze Title VII religious discrimination claims under a burden-shifting

approach. See Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1486 (10th Cir. 1989). First

the employee must establish a prima facie case of religious discrimination by showing

that (1) he has a bona fide religious belief in conflict with an employment requirement;

(2) he informed the employer of the belief; and (3) he was not hired because he failed to

satisfy the requirement. Id. Once the plaintiff has established a prima facie case, the


                                              2
burden shifts to the employer to show that a reasonable accommodation would result in

undue hardship to the employer. 42 U.S.C. § 2000e(j); Lee v. ABF Freight Sys., Inc., 22

F.3d 1019, 1022 (10th Cir. 1994) The district court concluded that Plaintiff could not

establish a prima facie case. The district court further concluded that assuming arguendo

that Plaintiff met his burden, his claim would still fail because accommodating Plaintiff

would place an undue hardship on Defendant. We agree with the district court’s

conclusion that accommodating Plaintiff would place an undue hardship on Defendant.

       Under federal law, all employers are required to withhold certain income taxes and

social security taxes and file a report with the Internal Revenue Service as to each

individual employee. These reports require identification of the employee by social

security number. 26 U.S.C. § 6109; 26 C.F.R. §§ 31.6109-1, 31.6051-1(a)(1). Requiring

Defendant to violate these laws in order to accommodate Plaintiff would result in undue

hardship to Defendant. See United States v. Board of Educ., 911 F.2d 882, 891 (3rd Cir.

1990) (requiring defendant to violate state statute to accommodate plaintiff resulted in

undue hardship); see also Droz v. Commissioner of IRS, 48 F.3d 1120, 1123 (9th Cir.

1995) (compulsory participation in the social security system, where the plaintiff’s

objection is based on religious grounds, is not unconstitutional).

       Furthermore, by accommodating Plaintiff’s refusal to provide a social security

number, Defendant would be subject to penalties from the IRS for not reporting the

employee’s social security number. See 26 U.S.C. §§ 6722, 6723. To require an


                                             3
employer to subject itself to potential fines also results in undue hardship. See Lee, 22

F.3d at 1023. In response, Plaintiff argues that Defendant would not be subject to undue

hardship because Defendant could receive a waiver of penalties under 26 U.S.C.

§ 6724. Section 6724(a) provides that “[n]o penalty shall be imposed under this part with

respect to any failure if it is shown that such failure is due to reasonable cause and not to

willful neglect.” Plaintiff cited no authority to support his contention that the Internal

Revenue Service would find that Defendant’s omission of Plaintiff’s social security

number was due to “reasonable cause.” Cf. EEOC v. Allendale Nursing Centre, 996

F.Supp. 712, 718 (W.D. Mich. 1998) (employer under no obligation to seek § 6724

waiver in order to accommodate Plaintiff). Therefore, we reject Plaintiff’s argument. For

these reasons, the judgment of the district court is

       AFFIRMED.

                                                   Entered for the Court,



                                                   Bobby R. Baldock
                                                   Circuit Judge




                                              4
