                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            FEB 6 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    LAWRENCE L. GRAFF,

                Plaintiff-Appellant,

    v.                                                   No. 00-4205
                                                     (D.C. No. 99-CV-32B)
    WILLIAM J. HENDERSON,                                  (D. Utah)
    Postmaster General; UNITED
    STATES POSTAL SERVICE, Agency,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before EBEL , KELLY , and BRISCOE , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the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.
      Plaintiff Lawrence L. Graff appeals from a judgment entered by the district

court following a bench trial. We affirm.

      The parties stipulated to all the facts except for one, that being whether

defendant United States Postal Service failed in its duty to reasonably

accommodate Mr. Graff’s religious beliefs when it refused to hire him.    The

stipulated facts are as follows: In 1985, Mr. Graff applied for a position as a

clerk-carrier at which time he was required to identify three facilities where he

desired to work. After applying, Mr. Graff joined the World Wide Church of God

and began observing the Sabbath from sundown Friday to sundown Saturday in

accordance with church doctrine. In 1991, Mr. Graff was notified he was eligible

for consideration as a part-time flexible distribution clerk. The hours were from

6:30 a.m. to 5:15 p.m. Monday through Saturday. At his interview, Mr. Graff did

not mention his religious work restrictions, nor did the interviewer inquire into

any such restrictions. Approximately one month later, Mr. Graff notified

defendant of the restrictions. Two months later, defendant informed Mr. Graff it

could not accommodate his religious work restrictions without undue hardship

and, consequently, he was no longer being considered for employment. Mr. Graff

then filed a complaint with the EEO Counselor. Almost a year later, he requested

a lateral job transfer to include any assignment within a set geographic area .

Defendant stated it could not make that accommodation because the collective


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bargaining agreement (CBA) provided that employees with less than eighteen

months at a particular location were not eligible for lateral transfers.

      An ALJ for the Equal Employment Opportunity Commission (EEOC)

determined that defendant had shown it could not accommodate Mr. Graff’s work

restrictions at the three original locations without undue hardship. The ALJ

determined, however, that defendant had not made a reasonable attempt at

accommodation with respect to the lateral job transfer option. Defendant rejected

that decision. Mr. Graff appealed and the EEOC’s appellate branch upheld

defendant’s decision to reject the ALJ’s decision.

      Mr. Graff then brought this Title VII action in which he alleged that

defendant had not performed its duty to accommodate his religious beliefs. The

district court entered judgment for defendant, holding    that a lateral transfer would

not have been a reasonable accommodation, as to do so would require defendant

to violate the CBA. The court held that defendant was not required to change the

terms of the CBA to accommodate a non-employee.

      On appeal, Mr. Graff argues he     established a prima facie case that

defendant failed to accommodate his religious beliefs and that the district court

did not apply the two-step process set forth in Thomas v. Nat’l Ass’n of Letter

Carriers, 225 F.3d 1149, 1155 n.6 (10th Cir. 2000).      He further contends he




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proved at trial that defendant had made no effort to accommodate his religious

beliefs regarding the lateral transfer option.

       First, we note that whether Mr. Graff made a prima facie case is irrelevant

once a case proceeds to trial.   See Coleman v. B-G Maint. Mgmt. of Colo., Inc.,

108 F.3d 1199, 1205 (10th Cir. 1997) (when Title VII case is fully tried, issue of

whether plaintiff established prima facie case drops out, and court considers only

whether plaintiff proved his claim at trial). Thus, the issue of whether the court

applied the two-step process set forth in Thomas is also irrelevant.

       Our review of the district court’s factual findings in a Title VII case

following a bench trial “is limited to determining whether they are clearly

erroneous[;]” however, we review the district court’s statutory interpretation and

legal analysis de novo.    EEOC v. Ackerman, Hood & McQueen, Inc.           , 956 F.2d

944, 946 (10th Cir. 1992).

       Title VII makes it “an unlawful employment practice for an employer . . . to

fail or refuse to hire . . . any individual . . . because of such individual’s . . .

religion.” 42 U.S.C. § 2000e-2. The term “religion” “includes all aspects of

religious observance and practice, as well as belief . . . .” Id. § 2000e(j).

       “[A]n employer who has made no efforts to accommodate the religious

beliefs of an employee or applicant before taking action against him may only

prevail if it shows that no accommodation could have been made without undue


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hardship.” Toledo v. Nobel-Sysco, Inc.    892 F.2d 1481, 1490 (10th Cir. 1989);        see

also Trans World Airlines, Inc. v. Hardison     , 432 U.S. 63, 75 (1977) . This duty

“does not obligate the employer to consider and preclude an infinite number of

possible accommodations.” Thomas, 225 F.3d at 1156. Further, the employer

need not “bear more than a de minimis cost,” Hardison , 432 U.S. at 84, “deny the

shift and job preference of some employees . . . to accommodate . . . the religious

needs of others,” id. at 81, or violate a valid labor agreement, id. at 79.

      Here, defendant denied Mr. Graff’s requested accommodation of a lateral

transfer because such a transfer would require that it violate the CBA. 1 As the

duty to accommodate does not require the employer to take steps inconsistent with

a valid CBA, defendant was not required to provide Mr. Graff with a lateral

transfer.



1
         Mr. Graff argues the CBA does not apply to applicants and, thus, defendant
could have explored a lateral transfer without violating the agreement. Mr. Graff
faults the district court for assuming the CBA applied to him. Whether the CBA
applied to job applicants is an issue of fact that can only be resolved by reference
to the CBA and any other pertinent materials. Mr. Graff did not ask the district
court to make this determination, nor did he seek to have the court determine this
fact post-judgment. In fact, in his reply brief, Mr. Graff appeared to assume the
CBA applied to him. See Aplt.’s App. at 33. We cannot address issues not raised
first to the district court, see Walker v. Mather (In re Walker), 959 F.2d 894, 896
(10th Cir. 1992); nor can we resolve issues of fact not presented to the district
court, cf. Ass’ns Working for Aurora’s Residential Env’t v. Colo. Dep’t of
Transp. , 153 F.3d 1122, 1126 n.2 (10th Cir. 1998) (appellate court defers to
district court’s findings of fact where record on appeal is insufficient to determine
if those findings are clearly erroneous).

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    The judgment of the United States District Court for the District of Utah is

AFFIRMED.



                                                 Entered for the Court



                                                 Paul J. Kelly, Jr.
                                                 Circuit Judge




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