Jeffrey J. REED, Plaintiff-Appellant, v. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, Defendant-Appellee, 569 F.3d 576

BATCHELDER, J., delivered the opinion of the court. GUY, J. (pp. 582-83), delivered a separate concurring opinion. McKEAGUE, J. (pp. 583-89), delivered a separate dissenting opinion. AMENDED OPINION ALICE M. BATCHELDER, Circuit Judge. Plaintiff-Appellant Jeffrey Reed appeals the district court’s order granting

summary judgment in favor of Defendant-Appellee International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (“UAW”). Reed claims that UAW, in violation of Title VII of the Civil Rights Act of 1964, failed to provide a reasonable accommodation for his religious objection to financially supporting the union. Because Reed has failed to make out a prima facie religious accommodation case, we AFFIRM. I. BACKGROUND UAW represents the employees of automobile manufacturer AM General in Mishawaka, Indiana.

The collective bargaining agreement between UAW and AM General includes a union security provision under which all AM General employees must either become UAW members or pay the union an agency fee equal to the amount of membership dues. The UAW Constitution grants both members and non-member agency fee payers “the right to object to the expenditure of a portion of his/her dues money for activities or causes primarily political in nature” and to receive a rebate for that portion.

UAW and AM General also are parties to a letter agreement that allows any employee with a bona fide religious objection to joining or supporting a labor union to satisfy his union security obligation by making a payment equal to full membership dues to one of three charities mutually designated by UAW and AM General. On May 20, 2002, AM General hired Reed to work at its Mishawaka facility, and Reed immediately became a UAW member. After reading UAW publications, Reed concluded that he could not financially support the union without violating his personal religious convictions.

Reed terminated his UAW membership on October 18, 2004. UAW notified Reed that it would treat him as an objecting nonmember and directed AM General to deduct from Reed’s pay an agency fee consisting only of that portion of the union dues not used for political expenditures. On February 10, 2005, Reed informed UAW that he had religious objections to supporting the union in any amount and asked to donate to Disabled American Veterans the reduced agency fee he had been paying UAW as an objecting non-member.

On November 10, 2005, after receiving confirmation from Reed’s pastor that Reed held bona fide, personal convictions against supporting the union, UAW granted Reed’s request to be treated as a religious objector. UAW instructed Reed to pay $439.44, the amount of full union dues that had accrued since February 1, 2005, to one of the three charities selected by UAW and AM General. UAW further explained that upon Reed’s delivering to UAW a receipt showing full payment to an approved charity, the union would refund him $339.62, the amount he had paid in agency fees from February 2005 through November 2005.

Reed paid $43 9.44 to Riley’s Children Foundation, one of the designated charities, and UAW refunded him $339.62. This arrangement caused Reed to pay approximately $100 more to charity as a religious objector than he had paid to UAW in agency fees as an objecting non-member. Reed’s ongoing union security obligation requires him to make a monthly charity payment approximately 22% greater than what he would pay UAW as an objecting member or non-member. Reed filed this action on September 26, 2006, alleging that UAW failed reasonably to accommodate his religious objections to supporting the union.

On October 19, 2007, the district court ruled on the parties’ cross-motions for

summary judgment and held that:

(1) Reed had failed to establish his prima facie case because he had not shown that he had been discharged or disciplined; and (2) even if Reed had established a prima facie case, UAW’s accommodation of Reed’s religious objections was reasonable. Reed timely appealed that decision to this court. II. STANDARD OF REVIEW We review de novo a district court’s grant of

summary judgment, using the same standard applied by the district court. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir.1999) (en banc).

Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). We must review all the evidence, facts, and inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In order to defeat a

summary judgment motion, the nonmoving party “must show sufficient evidence to create a genuine issue of material fact.” Prebilich-Holland v. Gaylord Entm’t Co., 297 F.3d 438, 442 (6th Cir.2002) (citing Klepper v. First Am. Bank, 916 F.2d 337, 342 (6th Cir.1990)). The nonmoving party must provide more than a scintilla of evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). That is, the nonmoving party must present evidence sufficient to permit a reasonable jury to find in its favor. Id. Entry of

summary judgment is appropriate “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.1996). III.

ANALYSIS Title YII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for a labor organization ... to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his ... religion.... ” 42 U.S.C. § 2000e-2(c). There are two basic types of religious discrimination claims that an individual may bring against a labor union under Title VII: disparate treatment claims and religious accommodation claims.

In raising a disparate treatment claim, a plaintiff alleges that the union has treated him less favorably than similarly-situated applicants or members because of his religion. Here, Reed has not brought a disparate treatment claim. In fact, he has in his briefs before this court taken pains to emphasize that he has taken only the “accommodation path,” a theory of recovery under which Reed asserts that the union has failed reasonably to accommodate a conflict between an employment requirement and his religious beliefs.

Title VII provides for religious accommodation claims in its definition of religion, which includes “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s ... religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j). This definition imposes upon employers , a “statutory obligation to make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship[.]” Trans World Airlines, Inc. v.

Hardison, 432 U.S. 63, 75, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977). Although the definition mentions only employers, “courts have held that the duty to accommodate an employee’s religious beliefs extends to unions as well as employers.” Wilson v. NLRB, 920 F.2d 1282, 1286 (6th Cir.1990); see also EEOC v. Union Independiente de la Autoridad de Acueductos y Alcantarillados de Puerto Rico, 279 F.3d 49, 55 n. 7 (1st Cir.2002) (“[Cjourts have uniformly imposed upon labor organizations the same duty to provide reasonable accommodations.”).

In this circuit, it is settled that “[t]he analysis of any religious accommodation case begins with the question of whether the employee has established a prima facie case of religious discrimination.” Tepper v. Potter, 505 F.3d 508, 514 (6th Cir.2007) (quoting Smith v.

Pyro Mining Co., 827 F.2d 1081, 1085 (6th Cir.1987)). “To establish a prima facie case, [a plaintiff] must show that ‘(1) he holds a sincere religious belief that conflicts with an employment requirement; (2) he has informed the employer about the conflict; and (3) he was discharged or disciplined for failing to comply with, the conflicting employment requirement.’ ” Id. “Once an employee has established a prima facie case, [the defendant] has the burden ‘to show that it could not reasonably accommodate the employee without undue hardship.’ ” Id. (quoting Virts v. Consol.

Freightways Corp., 285 F.3d 508, 516 (6th Cir.2002)). Reed’s prima facie case failed, the district court held, because he had not presented sufficient evidence from which a jury could find that he had been discharged or disciplined. Reed contends that the district court was “confused about the elements of proof.” The only disputed issue in the case, Reed argues, is whether he has been reasonably accommodated— not whether he should have been accommodated. Reed thus insists that he is not required to prove the elements of a prima facie religious discrimination case.

We have declined to relieve a religious accommodation plaintiff of his burden to establish a prima facie case, including the requirement that he demonstrate that he has been discharged or disciplined. Goldmeier v. Allstate Ins. Co., 337 F.3d 629, 637 (6th Cir.2003). Reed cannot avoid this requirement by insisting that the only controversy here concerns the reasonableness — not the necessity — of his accommodation. Unless a plaintiff has suffered some independent harm caused by a conflict between his employment obligation and his religion, a defendant has no duty to make any kind of accommodation. See id.

Even Reed admits that “absent an accommodation requirement, he could not claim that he had a right to pay his union fees to charity.” And although an employer or union may not dole out accommodations in a discriminatory fashion, see Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 71, 107 S.Ct. 367, 93 L.Ed.2d 305 (1986), Reed explicitly has disavowed any disparate treatment claim. Reed alternatively argues that he may satisfy the “discharge or discipline” element of the prima facie case by showing any adverse employment action.

Otherwise, Reed contends, a religious accommodation plaintiff could never establish a prima facie case against a labor union defendant, because a labor union cannot by itself discharge or discipline an employee. Reed contends that the amount he must pay to charity in excess of the amount other objectors pay -to UAW “is effectively a reduction in his pay” and constitutes an adverse action. True, the prima facie elements of a religious accommodation case do not always fit nicely into a case against a labor union.

Just as a union cannot unilaterally discharge or discipline an employee, it cannot by itself impose an employment obligation. We need not attempt here to specify the precise contours of a prima facie case against a labor union, however. Nor do we have to determine the broader question of whether “discharge or discipline” should be understood to include any adverse employment action.

The dissent contends that “[t]his case is the first in our circuit to squarely present the question of whether a plaintiff can satisfy the prima facie case for a religious accommodation claim by showing an adverse employment action without showing discharge or discipline.” Dissenting Op. at 585.

But because we hold that the specific accommodation Reed challenges here does not rise to the level of an adverse employment action, we are not presented with the issue of whether a plaintiff can proceed on a showing of an employment action that is “adverse” but is not a form of “discharge or discipline.” Other than the accommodation itself, the reasonableness of which he challenges, Reed cannot point to any action by UAW that has adversely affected his employment.

And whatever “discharge or discipline” or “adverse employment action” may mean in other contexts, a plaintiff does not carry his burden merely by showing that he has lost some amount of pay as a result of a proffered accommodation. Tepper, 505 F.3d at 514. Even under the standard the dissent proposes, the incremental adjustment to Reed’s pay as a result of his charity-substitution payment is not actionable: It is not a materially adverse change in the terms or conditions of his employment. See Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir.1996).

In Tepper, we rejected a similar attempt to establish an identity between the challenged accommodation and the alleged injury. There, the plaintiff was a Messianic Jew who observed each Saturday as his Sabbath. Id. at 511. Although the post office for which Tepper worked followed a rotating

schedule that allowed employees to take turns having Saturdays off, initially the staffing levels were sufficiently high for management to accommodate Tepper by giving him every Saturday off. Id. at 511-12. After staffing levels were reduced, this arrangement became difficult to sustain, and Tepper’s supervisor informed him that his accommodation was being withdrawn. Id. at 512. The supervisor advised Tepper to reserve vacation time for Saturday absences, to use annual leave and unpaid leave, and to exchange days off with other employees. Id. at 512-13.

Tepper argued that this alternative arrangement constituted a form of discipline because it forced him to take unpaid leave, reducing his annual pay and his pension. Id. at 513. We held, however, that “more than loss of pay is required to demonstrate discipline or discharge.” Id. at 514. Just as the plaintiff in Tepper could not point to any “discipline” other than the accommodation he claimed was unreasonable, Reed has suffered no discipline or adverse employment action other than the accommodation he claims is unreasonable — his required charity-substitution payment.

The dissent contends that our reliance on Tepper is misplaced because in that case the employee was offered the option of taking unpaid leave so he could observe his Sabbath. Tepper’s loss was different from Reed’s, the dissent insists, because Tepper simply was not being paid for days he did not work. Dissenting Op. at 585. Even so, Tepper’s accommodation required him to choose between violating his Sabbath by working his scheduled Saturdays, and observing his Sabbath but having limited opportunities to make up the lost hours and pay.

Here, Reed’s accommodation required him to choose between violating his religious beliefs by paying the agency fee — albeit the reduced agency fee — to the union, and honoring his religious beliefs by paying nothing to the union, but paying more out of pocket in order to satisfy his union security obligation. So in both Tepper and this case, the employee faced a choice of suffering either a monetary loss or a religious loss.

Also of note, each plaintiff received a corresponding benefit unavailable to other employees: Tepper got every Saturday off, and Reed pays the union nothing while enjoying the benefits negotiated through collective bargaining.

The dissent contends that unless we are willing to treat a challenged accommodation as an adverse action, an-employee can never prevail on a religious accommodation claim unless he is first discharged or disciplined: “If the employee accepts the accommodation, then, under the lead opinion’s view, the employee has acquiesced in the discrimination and abandoned any hope of a remedy.” Dissenting Op. at 587.

But an employee who believes that he is being treated less favorably because of his religion or some other protected ground has the right to bring a disparate treatment claim- — -a claim that Reed explicitly has disavowed. IV. CONCLUSION Because Reed has not shown any material adverse employment action, much less discharge or discipline, his religious accommodation claim fails. We therefore AFFIRM the district court’s granting

summary judgment in favor of UAW. CONCURRENCE . Although Reed's notice of his religious objection was dated February 10, 2005, UAW announced that it would consider his religious-objector status as beginning on February 1, 2005. . Reed’s lawsuit is against UAW only, although the charity payment requirement to which Reed objects is imposed under the terms of a letter agreement signed by both UAW and AM General.