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Darrell Patterson v. Walgreen Co.

Paid petition · United States Court of Appeals for the Eleventh Circuit, No. 16-16923 · judgment March 9, 2018

Certiorari denied · February 24, 2020
Pre-decision estimate: 6% cert probability (95% interval 4%–9%)

Before the decision, modestly above the 4.1% base rate. The model weighted this up for a circuit split argued in the petition, a dissent in the court below (flagged in the petition), and an Eleventh Circuit decision below, and down for a business respondent.

Questions presented

Title VII prohibits an employer from firing an employee for engaging in a religious practice—here, abstaining from work on his Sabbath—“unless [the] employer demonstrates that he is unable to reasonably accommodate to” the employee’s “religious … practice without undue hardship ….” 42 U.S.C. 2000e(j). This Court has not addressed the proper interpretation of the “reasonable accommodation” part of this test since Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986), or the “undue hardship” defense since TWA v. Hardison, 432 U.S. 63 (1977). The federal circuits are now split over what constitutes a “reasonable” accommodation and the evidence required to establish an “undue burden” under these decisions. The questions presented are:

  1. Is an accommodation that merely lessens or has the potential to eliminate the conflict between work and religious practice “reasonable” per se, as the First, Fourth, and Eleventh Circuits hold, does it instead create a jury question, as the Eighth and Tenth Circuits hold, or must an accommodation fully eliminate the conflict in order to be “reasonable,” as the Second, Sixth, Seventh, and Ninth Circuits hold?

  2. Is speculation about possible future burdens sufficient to meet the employer’s burden in establishing “undue hardship,” as the Fifth, Sixth and Eleventh Circuits hold, or must the employer demonstrate an actual burden, as the Fourth, Eighth, Ninth, and Tenth Circuits hold?

  3. Should the portion of Hardison opining that “undue hardship” simply means something more than a “de minimis cost” be disavowed or overruled?

Counsel of record

For petitioner
Gene Clayton Schaerr
Schaerr | Jaffe

For respondent
Adam G. Unikowsky
Jenner & Block LLP

Case

Conference history
Distributed for 9 conferences

Amicus briefs
6 cert-stage

Linked docket
18A50

Argument & decision

Decided February 24, 2020.

Proceedings

  1. Feb 24 2020
    Petition DENIED. Justice Alito, with whom Justice Thomas and Justice Gorsuch join, concurring in the denial of certiorari. (Detached Opinion)
  2. Feb 14 2020
    DISTRIBUTED for Conference of 2/21/2020.
  3. Jan 21 2020
    DISTRIBUTED for Conference of 1/24/2020.
  4. Jan 13 2020
    DISTRIBUTED for Conference of 1/17/2020.
  5. Dec 23 2019
    DISTRIBUTED for Conference of 1/10/2020.
  6. Dec 23 2019
    Supplemental brief of respondent Walgreen, Co. filed.
  7. Dec 23 2019
    Supplemental brief of petitioner Darrell Patterson filed. (Distributed)
  8. Dec 09 2019
    Brief amicus curiae of United States filed.
  9. Mar 18 2019
    The Solicitor General is invited to file a brief in this case expressing the views of the United States.
  10. Mar 11 2019
    DISTRIBUTED for Conference of 3/15/2019.
  11. Feb 25 2019
    DISTRIBUTED for Conference of 3/1/2019.
  12. Feb 21 2019
    Rescheduled.
  13. Feb 19 2019
    DISTRIBUTED for Conference of 2/22/2019.
  14. Feb 13 2019
    Rescheduled.
  15. Jan 30 2019
    DISTRIBUTED for Conference of 2/15/2019.
  16. Jan 29 2019
    Reply of petitioner Darrell Patterson filed.
  17. Jan 14 2019
    Brief of respondent Walgreen, Co. in opposition filed.
  18. Nov 27 2018
    Motion to extend the time to file a response is granted and the time is extended to and including January 14, 2019.
  19. Nov 19 2018
    Motion to extend the time to file a response from November 28, 2018 to January 14, 2019, submitted to The Clerk.
  20. Oct 29 2018
    Response Requested. (Due November 28, 2018)
  21. Oct 24 2018
    DISTRIBUTED for Conference of 11/9/2018.
  22. Oct 17 2018
    Brief amicus curiae of Robert P. Roesser filed.
  23. Oct 17 2018
    Brief amici curiae of National Jewish Commission on Law and Public Affairs (COLPA), et al. filed.
  24. Oct 17 2018
    Brief amici curiae of Church of Jesus Christ of Latter-Day Saints; et al. filed.
  25. Oct 17 2018
    Brief amici curiae of Christian Legal Society, et al. filed.
  26. Oct 15 2018
    Brief amicus curiae of Founders' First Freedom, Inc. filed.
  27. Oct 08 2018
    Waiver of right of respondent Walgreen Co. to respond filed.
  28. Sep 18 2018
    Blanket Consent filed by Petitioner, Darrell Patterson.
  29. Sep 14 2018
    Petition for a writ of certiorari filed. (Response due October 17, 2018)
  30. Aug 16 2018
    Application (18A50) granted by Justice Thomas extending the time to file until September 14, 2018.
  31. Aug 13 2018
    Application (18A50) to extend further the time from August 24, 2018 to September 14, 2018, submitted to Justice Thomas.
    Written RequestProof of Service
  32. Jul 19 2018
    Application (18A50) granted by Justice Thomas extending the time to file until August 24, 2018.
  33. Jul 11 2018
    Application (18A50) to extend the time to file a petition for a writ of certiorari from July 25, 2018 to August 24, 2018, submitted to Justice Thomas.
    Main DocumentLower Court Orders/OpinionsProof of Service