Religious pilgrimage not valid reason for extended work absence

Thursday, March 26, 1998

Mary Tiano has no recourse against an Arizona department store after being fired for taking a religious pilgrimage to Yugoslavia, a federal appeals court has ruled.

A federal appeals court for the Ninth Circuit late last week overturned a lower court's finding that Tiano, an employee at Dillard's Department Stores, was improperly fired for taking extended unpaid leave for a religious pilgrimage to Medjugorje, Yugoslavia.

The appeals court concluded Tiano failed to show that Title VII of the Civil Rights Act of 1964 had been violated by the private company's actions. Title prohibits employment discrimination based upon a person's race, color, religious beliefs, gender or ethnicity.

Tiano's legal struggles with Dillard's commenced in late 1988 when as a salesperson in the women's shoe department she learned through her Roman Catholic Church of a pilgrimage to Medjugorje. According to accounts of several people, visions of the Virgin Mary appeared to them in Medjugorje. The Catholic Church, however, has not designated the city an official pilgrimage site of the church.

The pilgrimage was set for Oct. 17-26. Tiano's immediate supervisor denied her request for unpaid leave, citing a vacation policy which prohibited employees from taking leave between October and December, the peak retail season.

Tiano sued Dillard's in district court alleging the store violated Title VII by firing her for a religiously motivated action. Tiano told the district court she had a “calling from God” to attend the pilgrimage. Officials for Dillard's argued Tiano did not have a sincerely held religious belief and that allowing her to take that time off would cause the store “undue hardship.”

The district court ruled that Tiano did have a religious belief and that the belief required her to go to Medjugorje for the dates of the pilgrimage. The court, moreover, said Tiano's supervisors failed to prove they had made “good faith” efforts to accommodate her religious beliefs or that the shoe department would suffer any hardship during Tiano's absence. The court awarded Tiano a little more than $16,000.

Judge Charles Wiggins, writing for the appeals court majority, noted “where an employee maintains that her religious beliefs require her to attend a particular pilgrimage, she must prove that the temporal mandate was part of the bona fide religious belief.”

Wiggins said the district “was clearly erroneous” in concluding Tiano's beliefs mandated she journey to Medjugorje.

“She offered no corroborating evidence to support the claim that she had to attend the pilgrimage between Oct. 17 and 26, Wiggins said. “For example, she did not testify that the visions of the Virgin Mary were expected to be more intense during that period. Nor did she suggest that the Catholic Church advocated her attendance at that particular pilgrimage. In short, her lone unilateral statement that she 'had to be there at that time' was her only evidence.”

Jim Maule, a professor at the Villanova University School of Law, said that it is possible Tiano simply failed to plead all the possible evidence.

“Before the weighing process starts, the court must establish a conflict between religious actions and the store's policies,” Maule said. “The corroboration might come from a rabbi or a book. In this situation there might have been evidence from other sources, like other pilgrims or the church. Of course, this is just speculation. She may not have had the evidence to plead.”