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Workers who ask their employers to accommodate their religious beliefs must cooperate in finding an acceptable accommodation and will forfeit any later Title VII claim if they do not, a federal appeals court has ruled. In Shelton v. University of Medicine & Dentistry of New Jersey,a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals refused to revive a suit brought by a nurse who, for religious reasons, refused to assist in procedures that she considered abortions and said she was constructively discharged as a result. Yvonne Shelton claimed that the hospital never made a valid offer of a reasonable accommodation since its proposed solution was to transfer her from the labor and delivery department to the newborn intensive care unit where, she says, she would once again have been forced to refuse tasks that involved allowing infants to die. But U.S. Circuit Judge Anthony J. Scirica said the hospital also invited Shelton to meet with its human resources department to discuss other available nursing positions and that Shelton refused. “Once the hospital initiated discussions with that proposal, Shelton had a duty to cooperate in determining whether the proposal was a reasonable one. By refusing to meet with human resources to investigate available positions, Shelton failed to satisfy her duty,” Scirica wrote. Shelton’s lawyer, F. Michael Daily Jr. of Quinlan Dunne & Daily in Merchantville, N.J., argued that Shelton’s duty to cooperate in finding an accommodation never arose because a transfer to any other department was not a viable option since it would have required her to “give up eight years of specialized training and education” and to undertake retraining. But Scirica said Shelton “has not come forward with any evidence that a lateral transfer would have affected her salary or benefits.” Instead, he said, Shelton herself testified that she did not pursue the meeting because she believed positions were not available and “never expressed a concern that she would be forced to accept a lower salary or benefits.” Although she would likely have had to undergo some retraining, Scirica said there was “no evidence that she would lose pay or benefits.” As a result, Scirica said, “Shelton’s refusal to cooperate in attempting to find an acceptable religious accommodation was unjustified. Her unwillingness to pursue an acceptable alternative nursing position undermines the cooperative approach to religious accommodation issues that Congress intended to foster.” According to the opinion, Shelton worked as a staff nurse in the labor and delivery section of the Hospital at the University of Medicine and Dentistry of New Jersey. Although the department did not perform “elective abortions,” on occasion, its patients require emergency procedures that terminate their pregnancies. Labor and delivery section nurses are required to assist in emergency procedures as part of their job responsibilities. Shelton is a member of the Pentecostal faith and said her faith forbids her from participating “directly or indirectly in ending a life.” She says she notified the hospital in writing about her religious beliefs when she was hired in 1989, and again in 1994. The hospital at first accommodated her by allowing her to trade assignments with other nurses, rather than participate in the emergency procedures that she considered to be abortions. But two incidents in 1994 and 1995 caused the hospital to inform Shelton that she could no longer work in the section. In the first incident, a patient was pregnant and suffering from a ruptured membrane, which the hospital describes as a life-threatening condition. Shelton learned that doctors planned to induce labor by giving the patient oxytocin and refused to assist or participate. After the incident, Shelton’s supervisor asked her to provide a note from her pastor about her religious beliefs. Instead, she submitted her own note that said: “Before the foundations of the earth, God called me to be Holy. For this cause I must be obedient to the word of God. From his own mouth he said ‘Thou shalt not kill.’ Therefore, regardless of the situation, I will not participate directly or indirectly in ending a life.” In November 1995, Shelton refused to treat another emergency patient who was “standing in a pool of blood” and diagnosed with placenta previa. The attending physician determined the situation was life-threatening and ordered an emergency Caesarean-section delivery. When Shelton arrived for her shift, she was told to “scrub in” on the procedure. But because the procedure would terminate the pregnancy, Shelton refused to assist or participate, and another nurse took her place. The hospital claims Shelton’s refusal to assist delayed the emergency procedure for 30 minutes. Two months later, the hospital informed Shelton she could no longer work in the labor and delivery section because of her refusal to assist in “medical procedures necessary to save the life of the mother and/or child.”‘ The hospital also claimed that staffing cuts prevented it from allowing Shelton to continue to trade assignments when situations arose that she considered would lead to an abortion and that her refusals to assist risked patients’ safety. But the hospital did not terminate Shelton. Instead, it offered her a lateral transfer to a staff nurse position in the newborn intensive care unit. Shelton investigated the ICU position and says she learned that “extremely compromised” infants who were not expected to survive would be “set aside” and allowed to die. But she never confirmed that fact with hospital officials and instead chose not to accept the position. In rejecting the offer, Shelton wrote, “The ultimatum given me however, doesn’t align with the response I am unctioned to submit. The decision is not ours to make but the Lords’. The Living God is in control of that which concerns my life and job. Many are the plans in a mans heart but it’s Gods plan/purpose that will prevail.” [sic] On Feb. 15, 1996, the hospital terminated Shelton. Scirica found that Shelton made out a prima facie case of religious discrimination because “there is no dispute that Shelton’s religious beliefs are sincere, and that the hospital ultimately terminated Shelton.” But the judge found that the hospital met its burden of showing that it offered a reasonable accommodation. Although Title VII does not define what a “reasonable accommodation” is, Scirica said the Supreme Court has held that “a sufficient religious accommodation need not be the ‘most’ reasonable one (in the employee’s view)” and that it “need not be the one the employee suggests or prefers … [or] the one that least burdens the employee.” Instead, he said, “the employer satisfies its Title VII religious accommodation obligation when it offers any reasonable accommodation.” Shelton argues that the proposed transfer would not have resolved the religious conflict because in the ICU she would again be asked to undertake religiously untenable nursing actions. Scirica disagreed, saying, “There is no evidence that if Shelton worked in the unit, she would be asked to deny care to any infant. Indeed, Shelton admitted that her conclusion about what she might be asked to do in the newborn ICU was self-drawn.” As a result, Scirica said, the hospital’s offer of “constituted a reasonable accommodation.” But even if it wasn’t reasonable, Scirica said, Shelton forfeited her claim when she refused to meet with the hospital to discuss other possible assignments. “In sum, Shelton has failed to establish that the hospital was anything but neutral with respect to religion,” Scirica wrote. The hospital was defended by New Jersey Deputy Attorney General Barbara A. Berreski. Related Case (on law.com/pennsylvania, password required): Shelton v. University of Medicine & Dentistry of New Jersey

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