01-9253 IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT AMR ELMENAYER, Plaintiff-Appellant, v. ABF FREIGHT SYSTEMS, Defendant-Appellee. On Appeal from the United States District Court for the Eastern District of New York BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE SUPPORTING THE APPELLANT AND SEEKING REVERSAL NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Rm. 7018 Washington, D.C. 20507 (202) 663-4737 TABLE OF CONTENTS STATEMENT OF INTEREST 1 STATEMENT OF THE ISSUES 2 STATEMENT OF THE CASE 3 Nature of the Case 3 Statement of the Facts 3 District Court Decision 5 ARGUMENT 6 I. ABF'S PROPOSAL THAT ELMENAYER RESOLVE THE CONFLICT BETWEEN HIS RELIGIOUS PRACTICES AND HIS EMPLOYMENT REQUIREMENTS BY TRANSFERRING TO A DIFFERENT JOB ON A NIGHT SHIFT WOULD NOT BE A REASONABLE ACCOMMODATION WITHIN THE MEANING OF TITLE VII IF IT WAS FOUND TO UNNECESSARILY IMPOSE A SIGNIFICANT WORK-RELATED BURDEN ON ELMENAYER. 6 II. THE DISTRICT COURT'S JUDGMENT MAY NOT BE AFFIRMED ON THE ALTERNATIVE GROUNDS RAISED BY THE DEFENDANT IN THE LOWER COURT. 14 CONCLUSION 18 RULE 32(a)(7)(C) CERTIFICATE OF COMPLIANCE 19 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES American Postal Workers Union v. Postmaster General, 781 F.2d 772 (9th Cir. 1986) 12 Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1985) 6-7 Balint v. Carson City, Nevada, 180 F.3d 1047 (9th Cir. 1999) 16 Bazemore v. Friday, 478 U.S. 385 (1986) 16-17 Borkowski v. Valley Central School District, 63 F.3d 131 (2d Cir. 1995) 7 Brown v. General Motors Corp., 601 F.2d 956 (8th Cir. 1979) 15 Corning Glass Works v. Brennan, 417 U.S. 188 (1974) 9 Cosme v. Henderson, 287 F.3d 152 (2d Cir. 2002) 8-9, 11-14 EEOC v. Universal Manufacturing Corp., 914 F.2d 71 (5th Cir. 1990) 7 Eversley v. MBank Dallas, 843 F.2d 172 (5th Cir. 1988) 9 Featsent v. City of Youngstown, 70 F.3d 900 (6th Cir. 1995) 10 Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) 17 Laurin v. Providence Hospital, 150 F.3d 52 (1st Cir. 1998) 10 Lennon v. Miller, 66 F.3d 416 (2d Cir. 1995) 7 Murphy v. Miller Brewing Co., 307 F. Supp. 829 (E.D. Wis. 1969) 11 National Railroad Passenger Corp. v. Morgan, 122 S. Ct. 2061 (2002) 17 Philbrook v. Ansonia Board of Education, 757 F.2d 476 (2d Cir. 1985), holding rev'd, 479 U.S. 60 (1986) 15 Rodriguez v. City of Chicago, 156 F.3d 771 (7th Cir. 1998) 11 Thomas v. Howard University Hospital, 39 F.3d 370 (D.C. Cir. 1994) 10 Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) 7, 15 Wright v. Runyon, 2 F.3d 214 (7th Cir. 1993) 12 STATUTES Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. 1 42 U.S.C. § 2000e(j) 6 29 U.S.C. § 158(d) 9 No. 01-9253 IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT AMR ELMENAYER, Plaintiff-Appellant, v. ABF FREIGHT SYSTEMS, Defendant-Appellee. On Appeal from the United States District Court for the Eastern District of New York BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE SUPPORTING THE APPELLANT AND SEEKING REVERSAL STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with the interpretation, administration and enforcement of the federal laws prohibiting employment discrimination, including Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This appeal raises an important issue concerning the extent of an employer's obligation to provide a reasonable accommodation to resolve a conflict between an employee's religious practices and the requirements of his employment. In concluding on summary judgment that the defendant in this case offered a “reasonable accommodation” to the plaintiff, the district court, in our view, applied a standard which is inconsistent with controlling precedent and which would, if applied generally, frustrate the purposes of Title VII's religious accommodation requirement. Accordingly, the Commission, pursuant to Fed. R. App. P. 29(a), offers its views to the Court. STATEMENT OF THE ISSUES<1> 1. Whether a proposed accommodation which would resolve a conflict between an employee's religious practices and his employment requirements must be found to be reasonable without regard to the burden it would place on the employee's terms and conditions of employment. 2. Whether the district court's judgment may be affirmed on the alternative ground that the plaintiff's requested accommodation would have violated the applicable collective bargaining agreement. 3. Whether the district court's judgment may be affirmed on the alternative ground that the plaintiff's claim that his employer refuses to reasonably accommodate his religious beliefs is time-barred. STATEMENT OF THE CASE Nature of the Case This is an appeal from a final judgment of the United States District Court for the Eastern District of New York (Gleeson, J.) granting summary judgment dismissing all of the plaintiff's claims. Elmenayer filed a pro se complaint in June 1998 alleging that ABF Freight Systems (“ABF”) violated Title VII by discriminating against him on the basis of his religion and by refusing to accommodate his religious practice in a reasonable manner. A-12-23. The district court later appointed counsel for Elmenayer. A-2 (Entry 8). On September 24, 2001, the district court granted defendant's motion for summary judgment. A-4 (Entry 21), 302-19. A final judgment was entered on September 28 or October 1, 2001. A-4 (Entry 33), 320. Elmenayer filed a timely notice of appeal on Monday, October 29. A-5, 321. Statement of the Facts Amr Elmenayer works as a truck driver for ABF Freight Systems. A-82. He works on the day shift picking up and delivering freight in New York City. A-82, 89. On April 10, 1996, Elmenayer, who is a practicing Muslim, wrote to his supervisor requesting that the company accommodate his religious belief that he must attend Friday prayers. A-86-87, 132.<2> Specifically, he sought ABF's “consent to add my fifteen minute coffee break to my lunch time.” A-87. He also indicated his willingness to come in one half hour early or leave one half hour late if that would be necessary to “compensate any time or cost to the company.” A-87. The company denied Elmenayer's request in June of 1996, and suggested instead that he use his seniority to bid on a job on the evening or night shift which would not conflict with his need to attend Friday mid-day services. A-88, 137, 201. It is undisputed that ABF has no truck-driving jobs on its evening and night shifts. A-254. Employees working on those shifts use forklifts to load and unload freight at ABF's warehouse. A-254. Elmenayer rejected this proposal and has continued to work for ABF as a truck driver on the day shift. A-137-38, 140. On October 16, 1997, Elmenayer filed a charge with the EEOC alleging, inter alia, that ABF violated Title VII by refusing to provide a reasonable accommodation for his religious beliefs. A-217. After receiving a notice of right to sue, Elmenayer commenced this action. A-2 (Entry 1), 218-20. District Court Decision The district court granted summary judgment dismissing all of Elmenayer's claims. A-319. The court held that Elmenayer's challenge to the suspension he received in April 1996 for returning late from lunch fails for two reasons. First, Elmenayer was not entitled to a religious accommodation at that time because he had not informed ABF of his religious need to have a longer lunch break. A-311. Furthermore, any claim based on the April 1996 discipline was time-barred, since Elmenayer did not file his charge until October 1997, more than 18 months after the suspension occurred. A-312, n. 3. The court also granted summary judgment for ABF on Elmenayer's claim that ABF failed to provide a reasonable accommodation for his religious beliefs after he informed the company of his obligation to attend Friday prayers. A-312-15. The court concluded that ABF “fulfilled its obligation to accommodate Elmenayer's need to attend Friday prayer services” by suggesting that he use his seniority to transfer to a job on the night shift. A-312. According to the court, “[a] reasonable accommodation of an employee's religion is one that ‘eliminates the conflict between employment requirements and religious practices.'” A-312 (quoting Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 70 (1985)). The court added that, “[w]here an employer has made a good faith effort to accommodate an employee's religious practices, courts in this circuit have not looked further to make a determination as to what precisely constitutes reasonableness.” A-313 (citations omitted). The court held that ABF's proposal was a reasonable accommodation under this standard because it “eliminated the conflict between Elmenayer's religious practices and his work schedule.” A-314. The court rejected Elmenayer's argument that the proposal was not a reasonable accommodation because “it imposed too great a hardship on him.” A-313-14. In the court's view, the burden on Elmenayer of working nights is not relevant as long as the proposal resolved the conflict. A-313-14. ARGUMENT I. ABF'S PROPOSAL THAT ELMENAYER RESOLVE THE CONFLICT BETWEEN HIS RELIGIOUS PRACTICES AND HIS EMPLOYMENT REQUIREMENTS BY TRANSFERRING TO A DIFFERENT JOB ON A NIGHT SHIFT WOULD NOT BE A REASONABLE ACCOMMODATION WITHIN THE MEANING OF TITLE VII IF IT WAS FOUND TO UNNECESSARILY IMPOSE A SIGNIFICANT WORK-RELATED BURDEN ON ELMENAYER. Section 701(j) of Title VII requires an employer to reasonably accommodate employees' religious practices if it can do so without undue hardship. 42 U.S.C. § 2000e(j). Under this provision, once an employee notifies his employer of a conflict between his religious practices and a work requirement, the employer has a legal duty to offer a reasonable accommodation that eliminates the conflict, unless there is no reasonable accommodation that would not impose an undue hardship on the employer. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1977). The employer satisfies this duty when it offers a reasonable accommodation even if it is not the accommodation the employee prefers. Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68. Whether the accommodation the employer offers is reasonable is a question of fact to be decided by a jury. See EEOC v. Universal Mfg. Corp., 914 F.2d 71, 73 (5th Cir. 1990) (Title VII religious-accommodation case) (“Ordinarily, questions of reasonableness are best left to the fact finder.”); Lennon v. Miller, 66 F.3d 416, 421 (2d Cir. 1995) (“Disputes over reasonableness are usually fact questions for juries.”) (discussing qualified-immunity defense in § 1983 police-misconduct action); cf. Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995) (in ADA failure-to-accommodate case, reasonableness of accommodation is question of fact). The district court ruled in this case that, even if it would have caused ABF little or no hardship to accommodate Elmenayer's religious obligation to attend Friday services while retaining his present job, the company could instead insist that he transfer to a different job on the night shift. According to the court, because transfer to the night shift would resolve the conflict between Elmenayer's job requirements and his religious practices, it must be found to be a reasonable accommodation without regard to any hardships it might cause to Elmenayer. A-313-14. In reaching this conclusion, the district court applied an incorrect legal standard. Under the correct standard, the evidence would support a finding that ABF's proposal was not a reasonable accommodation. In justifying its conclusion, the district court stated, “Where an employer has made a good faith effort to accommodate an employee's religious practices, courts in this circuit have not looked further to make a determination as to what precisely constitutes reasonableness.” A-313. However, in a decision issued after the district court decision in this case, this Court applied a more demanding standard. In Cosme v. Henderson, 287 F.3d 152, 159 (2d Cir. 2002), this Court held that, even if an employer's suggested accommodation eliminates the religious conflict, it may still be unreasonable “if it cause[s] [the employee] to suffer an inexplicable diminution in his employee status or benefits” or “if it imposes a significant work-related burden on the employee without justification, such as the neutral operation of a seniority system.” Applying this standard, a reasonable jury could find that ABF's proposal was not a reasonable accommodation because it would have caused Elmenayer “to suffer an inexplicable diminution in his employee status or benefits,” or would “impose[] a significant work-related burden on [Elmenayer] without justification.” Cosme, 287 F.3d at 159. ABF's proposal would have required Elmenayer to transfer to an evening or night shift. An employee's hours of work are an important term or condition of employment. See, e.g., 29 U.S.C. § 158(d) (requiring employers to bargain “with respect to wages, hours, and other terms and conditions of employment”). Accordingly, under Cosme, a change in an employee's hours of work could clearly constitute a change in “his employee status” or a “work-related burden.” Furthermore, a reasonable jury could find that a change from a day shift to an evening or night shift would be a “diminution” in employee status or a “significant” burden. It is universally recognized that most workers prefer to work the day shift rather than an evening or night shift. See, e.g., Corning Glass Works v. Brennan, 417 U.S. 188, 204 (1974) (“Work on a steady night shift no doubt has psychological and physiological impacts making it less attractive than work on a day shift.”); Eversley v. MBank Dallas, 843 F.2d 172, 176 (5th Cir. 1988) (“That the employees who ‘refused' the [employer's] request [to switch shifts] would be upset at transferring from an 8:00 a.m. until 4:00 p.m. shift to a 4:00 p.m. until midnight shift seems patently obvious.”). Employers have been forced to resort to various strategies to staff evening and night shifts in the face of this strong preference of employees for day shifts, such as requiring less senior employees to work at night. See, e.g., Laurin v. Providence Hosp., 150 F.3d 52, 54 (1st Cir. 1998) (“In order to cover the less desirable evening and night shifts, the Hospital required all non-senior day nurses to work approximately one-third of their scheduled hours either on the evening or the night shift.”). Other employers pay workers more money to work the less desirable shifts. See, e.g., Featsent v. City of Youngstown, 70 F.3d 900, 902, n.1 (6th Cir. 1995) (employer paid a shift differential for the evening shift, and a higher one for the night shift); Thomas v. Howard Univ. Hosp., 39 F.3d 370, 372 n.2 (D.C. Cir. 1994) (same). One court summarized this development as follows: It is not subject to serious dispute that there is some difference in working conditions between the first, second, and third shifts merely because the work is performed at different times of the day. This has been recognized by the parties to the collective bargaining agreements in innumerable labor contracts which embody a standard shift differential payment over and above the basic hourly wage for work performed on the second or third shift. Murphy v. Miller Brewing Co., 307 F. Supp. 829, 835 (E.D. Wis. 1969). In addition to requiring Elmenayer to work evenings or nights, ABF's proposal would also have required him to transfer to a substantially different job. In his present job, Elmenayer drives around the city on his own delivering and picking up freight. A-82. On the evening or night shift, he would have been doing platform work in the company's yard, loading and unloading trucks with a forklift. A-254. He had not been trained for platform work, he believed it was more dangerous than his regular job, and he was not certified to drive a forklift. A-254-55. Accordingly, a reasonable jury could find that together these changes – having to switch to a less desirable shift and a less desirable job, one for which he was not trained or certified – constituted “a diminution in his employee status or benefits” and “a significant work-related burden.” Cosme, 287 F.3d at 159.<3> This is true not only because he would have had to work a less desirable shift and a less desirable job, but also because the company's proposal would have robbed Elmenayer of a considerable portion of the benefit of his seniority. His seniority normally allowed him to work the shift and the job he preferred. Compare id. (declining to find employer's proposed accommodation unreasonable in part because plaintiff failed to show that being deprived of his seniority for 90 days would have had significant consequences). In Cosme the employer's proposed accommodations were deemed reasonable. But the facts in Cosme and this case are quite different, as is the procedural posture. Cosme was an appeal after a bench trial, in which the district court found that the accommodations the employer offered were reasonable. Cosme, 287 F.3d at 157. The plaintiff in Cosme therefore bore the burden on appeal of showing that the district court's factual findings were clearly erroneous. Here, the district court granted summary judgment to the employer, implicitly concluding that a reasonable jury would be compelled to find that ABF's proposed accommodation was reasonable. Furthermore, in Cosme the plaintiff requested an accommodation that would have required the employer to change its shift structures and would have imposed a significant burden on his co-workers. The district court found that, by contrast, each of the employer's proposed accommodations would have allowed Cosme to perform “tasks appropriate for a letter carrier, with his pay rate remaining the same,” and that Cosme “would have suffered no discernible loss.” 287 F.3d at 159. In addition, although the proposed accommodations in Cosme would have required the plaintiff to transfer to a different job or a different location, there is nothing in the opinion to suggest that the plaintiff found those aspects of the proposals burdensome. Rather, the plaintiff objected only that the transfer proposals would have deprived him of his seniority for a period of 90 days. The plaintiff offered no evidence, however, that this temporary loss of seniority would have caused him any cognizable harm. On those facts, this Court affirmed the district court's finding that the employer's proffered accommodations were reasonable. Here, in contrast, Elmenayer requested an accommodation that would not have required ABF to alter its shift structures and would not have violated any of his co-workers' seniority rights. Yet the district court held that, even if ABF could have granted Elmenayer's request without violating the collective bargaining agreement and without incurring any additional cost or trouble, it was reasonable as a matter of law for the company to reject that request out of hand, and to suggest instead that Elmenayer solve his own problem by transferring to a less desirable job on a less desirable shift. Under the standard this Court enunciated in Cosme, a jury could find that ABF's proposal was not reasonable. The district court therefore erred in granting summary judgment. II. THE DISTRICT COURT'S JUDGMENT MAY NOT BE AFFIRMED ON THE ALTERNATIVE GROUNDS RAISED BY THE DEFENDANT IN THE LOWER COURT. The defendant raised at least two additional arguments for dismissal of plaintiff's reasonable accommodation claim that were not addressed by the district court. Should defendant renew these arguments on appeal as alternative grounds for affirmance, they should be rejected. First, ABF argued below that Elmenayer's proposed accommodation would necessarily cause undue hardship because it would have required the company to violate its collective bargaining agreement. Cf. Hardison, 432 U.S. at 79 (accommodations that would violate collective bargaining agreement presumptively cause undue hardship). ABF is not entitled to summary judgment on this issue. The employer has the burden of establishing undue hardship. See Brown v. General Motors Corp., 601 F.2d 956, 961 (8th Cir. 1979) (cited with approval, Philbrook v. Ansonia Bd. of Educ., 757 F.2d 476, 484 (2d Cir. 1985), unrelated holding rev'd, 479 U.S. 60 (1986)). The district court could therefore properly grant summary judgment in ABF's favor only if undisputed evidence compels the conclusion that permitting Elmenayer to combine his lunch hour and coffee break would violate the collective bargaining agreement. However, on its face, the agreement contains no provision dictating how or when employees may use their coffee break. On the contrary, the agreement expressly authorizes the company to set rules on how coffee breaks may be taken. A-71. Furthermore, the union has submitted a letter indicating that it has no objection to Elmenayer's request that he be permitted to combine his lunch hour and coffee break. A-224. Under these circumstances, the district court could not properly determine that ABF has conclusively established that Elmenayer's proposal would cause undue hardship. Cf. Balint v. Carson City, Nev., 180 F.3d 1047, 1049 (9th Cir. 1999) (“We hold that the mere existence of a seniority system does not relieve an employer of the duty to attempt reasonable accommodation of its employees' religious practices, if such an accommodation can be accomplished without modification of the seniority system and with no more than a de minimis cost.”). Secondly, ABF argued in its motion for summary judgment that Elmenayer's failure-to-accommodate claim was untimely because the company's initial denial of Elmenayer's request occurred more than 300 days before he filed his charge. The district court did not address this argument.<4> Should ABF renew this argument on appeal, this Court should rule that Elmenayer's claim that ABF violates Title VII by refusing to reasonably accommodate his religious practices is timely. Elmenayer experiences a recurring weekly conflict between his religious duty and his employment requirements. Just as the black employees in Bazemore had a right to receive non-discriminatory wages each time they received a paycheck, Elmenayer has a right to a reasonable accommodation each time he experiences that conflict. See Bazemore v. Friday, 478 U.S. 385, 395 (1986) (“Each week's paycheck that delivered less to a black than to a similarly situated white is a wrong actionable under Title VII . . . .”). The fact that Elmenayer was aware of ABF's unwillingness to accommodate his religious beliefs in 1996 and did not then file a charge does not preclude him from challenging the employer's present unlawful conduct. Nat'l R.R. Passenger Corp. v. Morgan, 122 S. Ct. 2061, 2071 (2002) (“The existence of past acts and the employee's prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed.”); cf. Havens Realty Corp. v. Coleman, 455 U.S. 363, 381-82 (1982) (even though plaintiffs failed to sue within the statutory period after they first learned of the violation, they had a timely claim because they alleged “an unlawful practice that continue[d] into the limitations period” and that was causing current injury). If the accommodation ABF proposed is not reasonable, and ABF is denying Elmenayer a reasonable accommodation that could be provided without undue hardship, Elmenayer should prevail on his Title VII claim, and he would be entitled, at the very least, to an injunction requiring ABF to provide him a reasonable accommodation. CONCLUSION For the reasons stated above, the Commission respectfully urges this Court to reverse the district court's judgment. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel PAUL D. RAMSHAW Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Rm. 7018 Washington, D.C. 20507 (202) 663-4737 RULE 32(a)(7)(C) COMPLIANCE CERTIFICATE I certify that WordPerfect reports that the text of this brief contains 3,688 words. Paul D. Ramshaw CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief were served by mailing them on this date first class, postage prepaid, to the following counsel of record: Lorie Almon Seyfarth Shaw 1270 Sixth Avenue, Suite 2500 New York, NY 10020-1801 Michael G. O'Neill 1841 Broadway, Suite 920 New York, NY 10023 Paul D. Ramshaw Equal Employment Opportunity Commission 1801 L Street, N.W., Room 7816 Washington, DC 20507 (202) 663-4737 1 The Commission takes no position on the other issues raised in this appeal. 2 At the time he made this request, Elmenayer was serving a two-week suspension for returning late from his lunch hour on a Friday. A-51-52. Elmenayer had not informed his employer of his need for an accommodation prior to this incident. A-129. 3 There are decisions from other courts of appeals that suggest that an accommodation that would require an employee to transfer to a less desirable position is not unreasonable if it does not entail a reduction in pay or benefits. See, e.g., Rodriguez v. City of Chicago, 156 F.3d 771, 775-76 (7th Cir. 1998) (where police officer had religious conflict with guarding abortion clinics, city reasonably accommodated him by offering him transfers to other districts, even though he preferred to remain in the same district); Wright v. Runyon, 2 F.3d 214, 217 (7th Cir. 1993) (defendant reasonably accommodated Sabbatarian box sorter because he could have transferred to a “flat sorter” position, even though he disliked that position, because his pay and benefits would not be reduced and he could bid on other positions later); Am. Postal Workers Union v. Postmaster Gen., 781 F.2d 772, 776-77 (9th Cir. 1986) (defendant reasonably accommodated window clerks with religious objections to facilitating draft registration by allowing them to transfer to less desirable positions, because it “reasonably preserve[d] [their] employment status”). None of these cases addresses an accommodation requiring a transfer to the night shift. Moreover, insofar as they can be read to adopt a blanket rule that proposals requiring transfers to other jobs and other shifts are reasonable even if they impose a significant burden on the employee, they are inconsistent with Cosme and should not be followed. 4 In addressing Elmenayer's claim that the two-week suspension he received in April 1996 was discriminatory, the district court ruled that the claim was time-barred, but the court did not expressly apply that ruling to Elmenayer's failure-to-accommodate claim. A-312, n. 3. Instead, the court addressed the accommodation claim on the merits. A-312-15.