                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-9-2008

Wilkerson v. New Media Tech
Precedential or Non-Precedential: Precedential

Docket No. 07-1305




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                                             PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                        No. 07-1305


                  JESSICA WILKERSON,
                                 Appellant
                           v.

  NEW MEDIA TECHNOLOGY CHARTER SCHOOL INC.
        T/D/B/A NEW MEDIA TECHNOLOGY
       CHARTER SCHOOL; HUGH C. CLARK


       On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
                   (D.C. No. 06-cv-02567)
         District Judge: Honorable Stewart Dalzell




                  Argued February 11, 2008

Before: SLOVITER, SMITH, and STAPLETON, Circuit Judges

                    (Filed: April 9, 2008)
                             ____

Timothy M. Kolman
Wayne A. Ely (Argued)
Timothy M. Kolman & Associates
Langhorne, PA l9047

      Attorneys for Appellant
Debbie R. Sandler (Argued)
White & Williams
Philadelphia, PA l9l03

       Attorney for Appellees
                             _____

                  OPINION OF THE COURT
                          _____

SLOVITER, Circuit Judge.

       The statement of facts set forth here is based on the
allegations of the complaint as the District Court dismissed the
complaint before any responsive pleading or discovery.

                                I.

        New Media Technology Charter School, Inc. (“New
Media”) employed Jessica Wilkerson by letter dated March 4,
2005, “as an ‘advisor’ (essentially a teacher) during the spring
2005 school year.” App. at 65. When she applied for the
position, Wilkerson disclosed to New Media her “Christian
ministry activities,” and New Media was aware of her “Christian
faith.” App. at 65.

       In May 2005, Wilkerson was required to attend a school
banquet at which there was a ceremony, described in the
complaint as “libations.” 1 App. at 65. The ceremony violated
Wilkerson’s Christian beliefs because it required those who
participated “to engage in what [Wilkerson] perceived as



       1
         Neither party discusses or describes what a “libations”
ceremony is. The District Court also noted that the parties did not
explain the term, and the Court defined the term “libation,”
according to the Oxford English Dictionary, as “[t]he pouring out
of wine or other liquid in honour of a god” or “[l]iquid poured out
to be drunk.” App. at 5 (quoting 8 Oxford English Dictionary 880
(2d ed. 1989)).

                                2
religious worship of their ancestors rather than the Christian
God.” App. at 65. Wilkerson was present during the libations
ceremony, but chose not to participate. She does not allege that
she complained to anyone at New Media about the ceremony
while it was happening, nor does she allege that anyone at New
Media made any comment to her at the time or at any time after
the ceremony about her decision not to participate.

        Wilkerson did not know that the libations ceremony
would be conducted at the banquet prior to attending the
banquet. Thus, Wilkerson does not allege that she objected to
the libations ceremony prior to attending; however, she also does
not allege that she objected to the libations ceremony at the time
it occurred, asked to be excused, or indeed even attempted to
excuse herself. Nevertheless, Wilkerson alleges that defendants
New Media and Director Hugh Clark “were aware” that the
libations ceremony “would offend the religious beliefs of
[Wilkerson] and other members of the Christian faith and made
no goo[d] faith effort to accommodate the religious beliefs of
[those individuals].” App. at 65.

        During a staff meeting that occurred at some point shortly
after the libations ceremony, Wilkerson complained to agents of
New Media about the libations ceremony “and made religious
objections to it . . . .” App. at 66. Following that complaint,
Wilkerson alleges that “New Media made no effort to
accommodate her religious beliefs or to engage in an interactive
process to accommodate them.” App. at 66.

       Wilkerson alleges that in June 2005, her employment was
“terminated as a result of her Christian religious beliefs, her
refusal to engage in the ‘libations’ ceremony, and her complaints
related to the ceremony . . . .” App. at 66. Clark prepared and
signed Wilkerson’s termination letter. The termination letter
stated no performance-based reason for the termination.

       Wilkerson filed suit against New Media and Clark
alleging violations of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., and other federal and state law. The
defendants filed a motion to dismiss, which the District Court

                                 3
granted. Although the District Court dismissed the first
amended complaint in its entirety, on appeal Wilkerson argues
that the District Court should not have dismissed Counts One,
Two, Five and Six of her amended complaint, and we will
confine ourselves to that contention. Wilkerson argues that she
has adequately pled claims under Title VII and the Pennsylvania
Human Relations Act, 43 Pa. Cons. Stat. Ann. § 951 et seq.
(“PHRA”).

                                II.

       We have plenary review of the dismissal of a complaint.
“The issue is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support the
claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

                               III.

       Both parties agree that the PHRA and Title VII claims
should be analyzed under the same legal standard, and we do so
here. See Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567 (3d
Cir. 2002). Wilkerson asserts three claims: (1) religious
discrimination under Title VII and the PHRA, (2) retaliation
under the PHRA and Title VII, and (3) an individual PHRA
claim against Clark for aiding and abetting the PHRA violations.
With respect to the religious discrimination claims, Wilkerson
alleges two theories of discrimination – failure to accommodate
and discriminatory termination.

       Under Title VII, it is unlawful for an employer to
“discharge . . . or otherwise to discriminate against any
individual with respect to h[er] compensation, terms, conditions
or privileges of employment, because of . . . religion.” Shelton
v. Univ. of Med. & Dentistry of N.J., 223 F.3d 220, 224 n.4 (3d
Cir. 2000) (quoting 42 U.S.C. § 2000e-2(a)(1)). In addition,
under 42 U.S.C. § 2000e(j), an employer must make reasonable
accommodations for its employees’ religious beliefs and
practices unless doing so would create an “undue hardship” for
the employer. Id. at 224.



                                4
        To establish a prima facie case of a failure to
accommodate claim, the employee must show: (1) she has a
sincere religious belief that conflicts with a job requirement; (2)
she told the employer about the conflict; and (3) she was
disciplined for failing to comply with the conflicting
requirement. Id. The employee must give the employer “fair
warning” that a particular employment practice will interfere
with that employee’s religious beliefs. Reed v. Great Lakes
Cos., 330 F.3d 931, 935 (7th Cir. 2003) (collecting cases). That
is because “[a] person’s religion is not like [her] sex or race[,]”
that is, simply announcing one’s belief in a certain religion, or
even wearing a symbol of that religion (i.e., a cross or Star of
David) does not notify the employer of the particular beliefs and
observances that the employee holds in connection with her
religious affiliation. Id. at 935-36. We do not charge employers
with possessing knowledge about the particularized beliefs and
observances of various religious sects. Id. at 936. Our
precedents in this area have involved instances in which the
employee claiming discrimination had informed the employer of
a particularized religious belief in conflict with an employment
requirement. See, e.g., Abramson v. William Paterson Coll. of
N.J., 260 F.3d 265, 268 (3d Cir. 2001) (discussing Orthodox
Jewish professor’s warning to supervisor that she would not be
able to teach on Jewish holidays).

        The District Court correctly dismissed those portions of
Wilkerson’s claims alleging failure to accommodate. Wilkerson
does not allege that she ever informed New Media or its agents
that the libations ceremony conflicted with her religious beliefs
prior to or during the ceremony. Because she did not inform
New Media that the ceremony presented a conflict, it did not
have a duty to accommodate her. Although Wilkerson told New
Media after the fact, at that time there was nothing to
accommodate. That Wilkerson alleges that she told New Media
that she was a Christian and that New Media knew she was a
Christian does not sufficiently satisfy Wilkerson’s duty to
provide “fair warning” to New Media that she possessed a
religious belief that specifically prevented her from participating
in the libations ceremony.



                                 5
        Wilkerson seeks to be permitted to adduce discovery that
would show that New Media knew or should have known that
the libations ceremony would offend Christians generally. Such
discovery, even if obtainable, is not relevant because we do not
impute to the employer the duty to possess knowledge of
particularized beliefs of religious sects. Even if there was
evidence that New Media suspected that the libations ceremony
would offend Wilkerson and other Christians, it is undisputed
that Wilkerson did not inform the defendants that the libation
ceremony would offend her religious beliefs, and therefore they
did not have a duty to accommodate her. We will therefore
affirm the District Court’s dismissal of Count One and Count
Five of the complaint to the extent those counts allege failure to
accommodate under Title VII and the PHRA respectively.

                                IV.

        We turn to Wilkerson’s claim alleging that New Media
terminated her employment because of her refusal to participate
in the libations ceremony, and because of her complaint thereof.
In both her complaint and in her appellate brief Wilkerson
characterizes her claim as “retaliation against [her] as a result of
her protected activity in complaining of religious
discrimination.” App. at 67.

        To establish a prima facie case of retaliation under Title
VII, a plaintiff must show that (1) she engaged in a protected
activity under Title VII; (2) the employer took an adverse action
against her; and (3) there was a causal connection between the
employee’s participation in the protected activity and the adverse
employment action. Moore v. City of Philadelphia, 461 F.3d
331, 340-41 (3d Cir. 2006) (citation omitted).

      The District Court, correctly characterizing New Media’s
arrangement with Wilkerson as an “at-will employment
agreement,” App. at 14, held that Wilkerson was not
“terminated” because the agreement on its face provided for her




                                  6
paid work only until June 17, 2005.2 Thus, according to the
District Court, New Media did not terminate Wilkerson; it
“simply did not renew her contract.” App. at 11. The Court also
noted that Wilkerson did not allege that New Media agreed to
renew her employment beyond the June 17, 2005 date, nor did
she “offer any explanation that might reconcile her claim of
termination in June of 2005 with an agreement providing for her
paid work only until June 17, 2005.” App. at 12.

        It is irrelevant whether the letter dated March 4, 2005
from New Media to Wilkerson, which was titled as
“Employment Letter Agreement,” App. at 58, is an employment
contract or whether it merely sets the amount of compensation
for a particular period of time, as Wilkerson argues. Inherent in
the District Court’s decision is its view that the proscription of
discrimination does not apply to an at-will employment
arrangement or an employment agreement with a fixed
termination date. That is an erroneous view of the law. The
failure to renew an employment arrangement, whether at-will or
for a limited period of time, is an employment action, and an
employer violates Title VII if it takes an adverse employment
action for a reason prohibited by Title VII, such as religious
discrimination.

       In prior employment discrimination/retaliation cases we
have made clear that failure to rehire can constitute an adverse
employment action. Sarullo v. U.S. Postal Serv., 352 F.3d 789,
798 (3d Cir. 2003). See also Grausam v. Murphey, 448 F.2d
197, 206 (3d Cir. 1971) (stating that failure to renew an
employment contract was permissible “absent a discriminatory
severance”) (emphasis added). In Suppan v. Dadonna, 203 F.3d



       2
        In considering the “employment agreement,” the District
Court relied on In re Burlington Coat Factory Sec. Litig., 114 F.3d
1410, 1426 (3d Cir. 1997) (stating that a court may consider a
document outside the pleadings if it is “integral to or explicitly
relied upon in the complaint”) (citation and alteration omitted).
Wilkerson did not challenge New Media’s representations that the
agreement was integral to her complaint.

                                 7
228, 234 (3d Cir. 2000), a case involving a claim of First
Amendment retaliation brought under 28 U.S.C. § 1983,3 we
recognized that failure to rehire, promote, or transfer could
constitute First Amendment retaliation, even though the
employee has no legal entitlement to be rehired, promoted or
transferred. We relied upon Rutan v. Republican Party, 497 U.S.
62, 75 (1990), in which the Supreme Court held that
“promotions, transfers, and recalls after layoffs based on
political affiliation or support are an impermissible infringement
on the First Amendment rights of public employees.” In Rutan,
“the Court rejected the argument that the First Amendment rights
of the public employees had ‘not been infringed because they
[had] no entitlement to promotion, transfer, or rehire.’” Suppan,
203 F.3d at 234 (quoting Rutan, 497 U.S. at 72).

       We also recognized that in Perry v. Sindermann, 408 U.S.
593 (1972), the Supreme Court had held that a “teacher’s lack of
contractual or tenure rights to reemployment is immaterial to his
First Amendment claim.” Suppan, 203 F.3d at 234. The same
rationale is applicable under Title VII, even when the
employment is at-will. See Whiting v. Jackson State Univ., 616
F.2d 116, 123 n.6 (5th Cir. 1980) (noting that the failure to
renew an employment contract constitutes discharge for
purposes of Title VII).

       In its opinion dismissing the complaint, the District Court
noted that Wilkerson’s allegations were not sufficiently
“particularized.” App. at 17. The Court referred in particular to
Count Four (the “conspiracy” count), which is not before us on
appeal, but we are obliged to review the pleading of the
complaint in light of the Supreme Court’s decision in Bell Atl.
Corp. v. Twombly, - - - U.S. - - - -, 127 S. Ct. 1955 (3d Cir.
2007), and this court’s more recent opinion in Phillips v. County
of Allegheny, - - - F.3d - - - -, 2008 WL 305025 (3d Cir. Feb. 5,



       3
        Although by no means identical, for these purposes we can
reasonably view as comparable discrimination claims brought
under § 1983 and Title VII. See Stewart v. Rutgers, 120 F.3d 426,
432 (3d Cir. 1997).

                                8
2008), both of which were issued after the District Court’s
decision in this case. In Twombly, which arose in the antitrust
context, the Supreme Court rejected the oft-repeated language in
Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that a court may
not dismiss a complaint “unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.” The allegations of the complaint,
according to the Court, should “plausibly suggest[ ]” that the
pleader is entitled to relief. Twombly, 127 S. Ct. at 1966.
Thereafter, in Phillips, an action under 42 U.S.C. § 1983, this
court held that Twombly’s “plausibility” paradigm for evaluating
the sufficiency of complaints is not restricted to the antitrust
context. 2008 WL 305025, at *6. Although we noted that the
exact parameters of the Twombly decision are not yet known, we
read Twombly to mean that “[f]actual allegations must be
enough to raise a right to relief above the speculative level.” Id.
(quoting Twombly, 127 S. Ct at 1965). In other words, “‘stating
. . . a claim requires a complaint with enough factual matter
(taken as true) to suggest’ the required element.” Id. (quoting
Twombly, 127 S. Ct. at 1965). The complaint must state
“‘enough facts to raise a reasonable expectation that discovery
will reveal evidence of’ the necessary element.” Id. (quoting
Twombly, 127 S. Ct. at 1965). Rule 8(a)(2) of the Federal Rules
of Civil Procedure requires the pleader not only to provide a
“short and plain statement,” but also a statement “showing that
the pleader is entitled to relief.” Id. at *7.

      Today, we extend our holding in Phillips to the
employment discrimination context. The plausibility paradigm
announced in Twombly applies with equal force to analyzing the
adequacy of claims of employment discrimination.

       Wilkerson’s amended complaint alleges that her
employment was terminated due to her “Christian religious
beliefs,” “her refusal to engage in the ‘libations’ ceremony,” and
her “complaints related to the ceremony.” App. at 66. Although
those allegations might be insufficient to give defendants the
required notice of what the libations ceremony is or why it is
religious in nature, Wilkerson also pled that “[t]he ‘libations’
ceremony violated [her] Christian beliefs as it required

                                9
participants to engage in what [she] perceived as religious
worship of their ancestors rather than the Christian God.” App.
at 65. In ruling on a motion to dismiss, the court is not free to
question whether there was in fact ancestor worship at a public
school banquet in a school that ostensibly focuses on digital
multimedia and project based learning, see About Us, New
Media Technology Charter School,
http://www.newmediatech.net/flashSite/about.php (last visited
Feb. 12, 2008). Wilkerson’s complaints following the ceremony
were based on her religious beliefs, and therefore, as we noted
earlier, could be read to allege that her termination was based on
her religious beliefs, a violation of Title VII.

        It appears that Wilkerson’s retaliation claim is based on
her complaints that she was required to attend the banquet at
which there was allegedly ancestor worship in violation of her
Christian beliefs. Protected activity under Title VII includes
opposition to unlawful discrimination under Title VII. Moore,
461 F .3d at 340. The employee must have an “objectively
reasonable” belief that the activity s/he opposes constitutes
unlawful discrimination under Title VII. Id. To put it
differently, if no reasonable person could have believed that the
underlying incident complained about constituted unlawful
discrimination, then the complaint is not protected. Our
concurring colleague believes that Wilkerson cannot have an
objectively reasonable belief that New Media committed an
unlawful employment practice. Although we have held above
that Wilkerson’s failure to accommodate theory fails as a matter
of law because she never requested an accommodation, her
retaliation claim is not necessarily foreclosed. The difficulty in
ruling on Wilkerson’s allegations is that they blend into each
other. Frankly, we are skeptical as to the reasonableness of
Wilkerson’s belief that New Media committed an unlawful
practice, but because we have only her complaint before us we
are not prepared to hold at this preliminary stage that it is
implausible that Wilkerson has a good faith belief that it did.
Details of the nature of the libations ceremony and the decision
not to renew Wilkerson’s employment could be more readily
forthcoming in discovery. We leave to the discretion of the
District Court on remand the nature of the discovery, confident

                                10
that the experienced district judge will take into consideration
the concerns about the cost of discovery to a small charter
school, such as the defendant, and will cabin discovery
accordingly.

                                V.

        Finally, we turn to Count VI of the complaint in which
Wilkerson alleged an aiding and abetting claim against Clark
under the PHRA. The PHRA makes it unlawful “[f]or any
person, employer, . . . or employe[e], to aid, abet, incite, compel
or coerce the doing of any act declared by this section to be an
unlawful discriminatory practice . . . .” 43 Pa. Cons. Stat. Ann. §
955(e). Wilkerson alleges that Clark violated that section by
failing to accommodate her religious beliefs and by signing her
termination letter because she objected to the libations
ceremony. For the reasons discussed above, the District Court
correctly dismissed the failure to accommodate claim against
Clark. However, for the same reasons discussed above, the
District Court erred in dismissing the termination claim because
its decision rested on its incorrect assumption that Wilkerson, an
at-will employee, could not have been “terminated” in violation
of the applicable statute.

                                VI.

       For the reasons set forth above, we will affirm the
judgment of the District Court dismissing all claims under Title
VII and the PHRA based upon the failure to accommodate
theory. We will reverse the judgment dismissing the religious
discrimination and retaliation claims under Title VII and the
PHRA based upon the adverse employment action/retaliation
theory, as well as the individual claim against Clark alleging that
he terminated Wilkerson based upon her religious belief. We
will remand for further proceedings consistent with this opinion.




                                11
WILKERSON v. NEW MEDIA TECHNOLOGY CHARTER
SCHOOL – No. 07-1035

STAPLETON, J., concurring and dissenting:

       I agree with the Court’s analysis and disposition of
Wilkerson’s failure to accommodate claim. Moreover, I, too,
would reverse and remand for further proceedings on her Title
VII discriminatory termination claim and the associated aiding
and abetting claim. I write to explain why I would affirm, rather
than reverse, the dismissal of Wilkerson’s retaliation claim.

        Section 2000e-2(a) of Title VII provides that “[i]t shall
be an unlawful employment practice for an employer . . . to fail
or refuse to hire or to discharge any individual . . . because of
such individual’s . . . religion.” I agree that, under our pleading
rules as interpreted by the Supreme Court in Bell Atlantic Corp.
v. Twombly, 127 S.Ct. 1955 (2007), Wilkerson has sufficiently
pled a cause of action under this section.

        Section 2000e-3(a) of Title VII provides that “[i]t shall
be an unlawful employment practice for an employer to
discriminate against any of his employees . . . because he has
opposed any practice made an unlawful employment practice by
[Title VII] or because he has made a charge, testified, assisted
or participated in any manner in an investigation, proceeding, or
hearing under [Title VII].” As the Court acknowledges, in order
to state a cause of action for unlawful retaliation under this
independent statutory provision, one must allege that one has
engaged in activity protected by Title VII and that such activity
has resulted in an adverse employment action. Moore v. City of

                                12
Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006).
        The adverse employment action of which Wilkerson
complains is the termination of her employment which she
attributes to “her Christian religious beliefs, her refusal to
engage in the ‘libations’ ceremony, and her complaints related
to the ceremony.” As I have indicated, I agree that the
allegations of the complaint tending to show a causal connection
between her termination and “her Christian religious beliefs”
and “her refusal to engage in the libation ceremony” suffice to
state a discriminatory termination claim under Title VII. The
allegations tending to show a connection between her
termination and “her complaints related to the ceremony,”
however, do not state a retaliatory discharge claim. Wilkerson
does not allege that her employment was terminated because she
engaged in activity made an unlawful employment practice by
Title VII. Her complaints were not about an employment
practice of New Media but rather about its having conducted a
libation ceremony as a part of its curriculum. Wilkerson
explains in her complaint that she complained because she “did
not believe that it was appropriate for a publicly-funded school
to engage in religious worship such as the ‘libation’ ceremony.”
App. at 66a. This may be a tenable position to take under the
Establishment of Religion clause, but her complaints were not
about an employment practice made unlawful by Title VII.

        While it is not altogether clear to me, the Court’s opinion
seems to suggest that it understands Wilkerson to be alleging
that her employment was terminated in retaliation for her having
complained about New Media’s failure to accommodate her
religious beliefs. Failure to accommodate the religious beliefs
of an employee is, of course, made an unlawful employment

                                13
practice by Title VII. This does not help Wilkerson, however.
As the Court has explained, given the facts alleged, New Media
did not commit an unlawful employment practice by failing to
accommodate Wilkerson’s religious beliefs. Wilkerson “did not
inform New Media that the ceremony presented a conflict” and
while she shared that information “after the fact, at that time
there was nothing to accommodate.” Maj. Op. at 6. Moreover,
while it is true that the retaliation provisions of Title VII protect
an employee who complains about employer conduct he or she
reasonably believes to be an unlawful employment practice
whether or not it is such, that rule applies only when the
employee’s belief is “objectively reasonable.” Moore, 461 F.3d
at 340-41.        An employee who does not ask for an
accommodation at the only time there is something to
accommodate cannot have an objectively reasonable belief that
her employer committed an unlawful employment practice by
failing to address her concerns.

       I would reverse the judgment of the District Court with
respect to Wilkerson’s discriminatory termination and associated
aiding and abetting claims and remand them for further
proceedings consistent with this opinion. In all other respects,
I would affirm the judgment of the District Court.




                                 14
