Case 1:18-cv-02119-ELH Document 78-2 Filed 10/28/20 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

)
FREDERICK J. BRENNAN, )
)
Plaintiff, )
)
)
v. ) Case No. 1:18-cv-02119-ELH
)
DELUXE CORPORATION, )
)
Defendant. )
)

DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

Defendant Deluxe Corporation (“Defendant” or “Deluxe”), through undersigned counsel

and pursuant to Fed. R. Civ. Proc. 56 and Local Rule 105 – 2(c), respectfully submits this

Memorandum of Points and Authorities in Support of its Motion for Summary Judgment.

Plaintiff Frederick Brennan’s (“Plaintiff” or “Mr. Brennan”) sole count of failure to

accommodate his religious beliefs under Title VII fails as a matter of law because his request for

an accommodation constituted an undue hardship on Deluxe, as it would have placed Deluxe in

jeopardy of violating its legal obligations. Plaintiff also cannot establish a prima facie case because

he cannot demonstrate that the termination of his employment was motivated by his request for a

religious accommodation. As a result, and for the reasons explained in detail below, Deluxe is

entitled to summary judgment on Plaintiff’s claim.

I. INTRODUCTION

In May 2017, Mr. Brennan objected to certain questions in Deluxe’s annual mandatory

Ethics and Compliance Training (“the Training”) regarding its non-discrimination and non-
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harassment workplace policies. Mr. Brennan specifically objected to questions in the Training

that related to the issue of how a transgender employee should be referred to in the workplace

(i.e., which gender pronouns to use and/or whether to call someone by their gender-specific

name at birth versus a name of the opposite gender) and whether a transgender employee should

be able to use the bathroom of his or her present gender.

Mr. Brennan made clear that because of his religious beliefs, he would not complete these

sections of the Training. Mr. Brennan also informed Deluxe that he would “never ever be

following” at least certain aspects of Deluxe’s policy concerning the treatment of transgender

employees (e.g., the use of pronouns in relation to a transgender employee).

As demonstrated below, the questions to which Mr. Brennan objected did not require Mr.

Brennan to express moral agreement with the requirements of Deluxe’s policy on these issues.

Moreover, these questions had specifically been included in the Training to ensure that Deluxe

met its legal obligations concerning non-discrimination and non-harassment in the workplace,

which included Deluxe’s ongoing obligations under the terms of a Consent Decree from a prior

lawsuit brought by the U.S. Equal Employment Opportunity Commission against Deluxe that

featured allegations of discrimination and harassment against a transgender employee.

Deluxe’s management explained to Mr. Brennan that its policies were designed to ensure

inclusiveness and nondiscrimination, and that the Training was not intended to force Mr.

Brennan to change his stated values or beliefs on the issue, but rather, to ensure that all of its

employees would comply with its policies in the workplace. Despite this explanation, Mr.

Brennan refused to complete the Training. After conferring with Human Resources personnel

and legal counsel, Deluxe made the decision to reduce Mr. Brennan’s salary by 1%, which was

the standard action taken under Deluxe policy for any employee failing to complete the Training.

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II. STATEMENT OF UNDISPUTED MATERIAL FACTS

A. Deluxe Corporation and Mr. Brennan’s Employment with Deluxe

1. Deluxe is a Minnesota corporation that provides financial and payroll technology services

to client companies. Deluxe acquired Payce, Inc., a company also providing payroll

technology services, in September 2016. Plaintiff’s Complaint, ¶ 1, 3 (Ex. 1).1

2. Mr. Brennan, a former employee of Payce, Inc., was employed by Deluxe as an at-will

employee (Software Engineer) from the time of its acquisition of Payce, Inc. through the

termination of his employment on April 20, 2018. Mr. Brennan worked at Deluxe’s

location in Towson, Maryland. Frederick Brennan Dep. 23:10 – 24:5 (Ex. 2).

3. From at least August 2016 through the date of Mr. Brennan’s termination, he was

supervised by Mark Vain, Chief Information Officer of Payce and then Deluxe. Ex. 2

(Brennan Dep. 114:16 – 116:19).

B. Deluxe’s Legal Obligations under Consent Decree

4. On January 15, 2016, Deluxe entered into a Consent Decree with the U.S. Equal

Employment Opportunity Commission (“EEOC”) and Plaintiff Brittney Austin. Deluxe

Consent Decree (Ex. 3) (Pettengill Dep. Ex. 1)2; Kimberly Pettengill Dep. 7:11 – 8:14 (Ex.

4).

1
Exhibits to this Memorandum are introduced by name and subsequently identified as “Ex. 1, 2,
etc.” Where exhibits relating to deposition testimony are subsequently cited, the deponent’s name
and deposition transcript pages are included. If an exhibit was authenticated during deposition
testimony, reference to the deposition exhibit number is also made.
2
Pursuant to Fed. R. Evid. 201, Deluxe requests that the Court take judicial notice of the Consent
Decree (Ex. 3), which is publicly available in fully executed form via PACER (ECF No. 37) on
the docket for the U.S. District Court for the District Court of Minnesota at the following link:
https://ecf.mnd.uscourts.gov/cgi-bin/DktRpt.pl?305440504208383-L_1_0-1. The distinction
between the version that is available on PACER (ECF No. 37), and the version submitted as Ex.
3, is that the version on PACER is fully executed by the parties and by the District Court Judge
(whereas the version at Ex. 3 is not fully executed).
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5. The Consent Decree was part of a settlement of EEOC Charge No. 540-2011-02711, in

which Ms. Austin, who is transgender, accused Deluxe of harassment and discrimination

resulting from, inter alia, Ms. Austin’s transition from male to female during her

employment with Deluxe, including Deluxe’s failure to allow her to use the gender

pronoun and restroom of her choice. Ex. 3; Ex. 4 (Pettengill Dep. 8:15 – 9:8).

6. The Consent Decree applied to all Deluxe facilities and locations from approximately

January 2016 to January 2019. Ex. 3, ¶ 8 – 9.

7. The Consent Decree required Deluxe to take many remedial measures, specifically

regarding harassment and discrimination based on gender identity and toward transgender

employees. These measures included the following:

a. Revising EEO policies to include statements prohibiting discrimination and

harassment based on gender identity and transgender status and a “description of

the consequences, up to and including termination, that will be imposed upon

violators of Defendant's anti-discrimination policies;” Ex. 3, ¶ 25.

b. Ensuring that “employee requests to change sex-designation or name information

in Defendant’s internal records, computer and communication systems are fully and

promptly complied with.” Ex. 3, ¶ 27.

c. Ensuring that access for transgender employees “to restrooms commensurate with

their gender identity will remain unhindered.” Ex. 3, ¶ 28.

d. Requiring annual training of all employees on what “may constitute unlawful

sex and disability discrimination, including discrimination based on sex-

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stereotyping, gender-identity, transgender status, and gender dysphoria;” Ex. 3, ¶

34 (emphasis added).

e. Requiring the training to be mandatory and requiring “penalties for employees

who fail to complete the training each year.” Id. (Emphasis added.)

f. Requiring Deluxe to file annual reports with the EEOC that include detailed

information about any complaints of discrimination or harassment based on gender

identity or transgender status received by Deluxe. Ex. 3, ¶ 43.

g. Requiring the posting of a Notice, for the duration of the Consent Decree, in

“conspicuous locations” at all Deluxe’s facilities that stated, inter alia:

“Discrimination against transgender status includes the intentional misuse of

gender pronouns when referring to an employee, and refusing to let a transgender
employee use a restroom commensurate with his or her gender identity.”

Ex. 3 (Consent Decree Exhibit C).

See also Ex. 4 (Pettengill Dep. 11:16 – 13:25).

8. The Consent Decree includes “injunctive relief,” stating that Deluxe is “permanently

enjoined from engaging in any employment practice which discriminates on the basis of

sex, including sex stereotyping, gender identity, and transgender status.” Ex. 3, ¶ 22.

9. The Consent Decree includes language through which the U.S. District Court for the

District of Minnesota retains jurisdiction of the matter “for the purposes of compliance

with the Decree and entry of such further orders or modifications as may be necessary or

appropriate to effectuate equal employment opportunities for employee.” Ex. 3, ¶ 45.

10. The Consent Decree provides for a compliance process by which the EEOC may petition

the District Court to enforce the terms of the Consent Decree, and the District Court retains

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authority to “order appropriate relief to remedy the non-compliance, including attorneys’

fees and appropriate injunctive relief.” Ex. 3, ¶ 46.

11. Deluxe understood compliance with the Consent Decree to be mandatory. Ex. 4 (Pettengill

Dep. 9:1-8).

12. Deluxe generally concluded that if it permitted its employees to intentionally misuse

gender pronouns of transgender employees or refused to permit a transgender employee to

use a restroom of his or her choice, it would be in violation of the Consent Decree. Ex. 4

(Pettengill Dep. 14:1-11).

13. As a result of the Consent Decree, Deluxe modified its annual Ethics and Compliance

Training (“the Training”) for all employees to include two questions relating to the

treatment of transgender employees under Deluxe’s policies, which Deluxe included in

response to the requirements of the Consent Decree. The Training generally covered EEO

topics such as harassment, discrimination, and non-retaliation. Ethics and Compliance

Training, Pgs. 20 – 22 (Ex. 5) (Pettengill Dep. Ex. 3); Ex. 4 (Pettengill Dep. 15:23 – 17:16).

14. The first question related to a transgender employee’s use of the bathroom of her choice.

The second question related to an employee’s refusal to address a transgender coworker by

her preferred gender pronoun. Ex. 5; Ex. 4 (Pettengill Dep. 15:23 – 17:16); Ex. 2 (Brennan

Dep. 67:11 – 69:21).

15. The Training required employees to identify the correct answers in relation to “laws and

company policy” and did not solicit employees’ personal opinions on the issues discussed

in the Training or ask them to affirm that they agreed with the content of the Training. Ex.

5, Pgs. 20 – 22.

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16. Deluxe required all employees to complete the Training. If an employee did not complete

the Training, the employee’s pay would be reduced by 1%, consistent with Deluxe’s policy

and the Consent Decree’s requirement that employees face a penalty for not completing

the Training. Julie Loosbrock Dep. 39:12 – 41:09 (Ex. 6); Wendy Arnston Dep. 18:2-12

(Ex. 7); Deluxe Employee Handbook (excerpted), § 2.03 (Ex. 8) (Pettengill Dep. Ex. 2).

17. To comply with the Consent Decree, Deluxe also modified its Employee Handbook to

include prohibitions on the discrimination and harassment on the basis of sexual identity

and toward transgender employees. Ex. 8, §§ 2.05, 2.09; Ex. 4 (Pettengill Dep. 14:12 –

15:22).

18. The EEOC’s compliance manual provides guidance regarding the EEOC’s position on

employee requests for religious accommodation and employer claims of undue hardship.

Section 12 “Religious Discrimination,” EEOC Compliance Manual (Section 12-IV.C.7,

Example 54, footnotes omitted) (Ex. 9).3 

C. Mr. Brennan’s Refusal to Complete Certain Sections of the Training

19. On May 24 and June 16, 2017, Mr. Brennan informed Petra Ott, Human Resources

Business Partner for Deluxe, via email that the Training violated his Christian religion

because it required him to answer two questions related to Deluxe’s policies against

harassment and discrimination of transgender employees that he found to be contrary to

3
The complete compliance manual relating to Religious Discrimination is available through the
following link: https://www.eeoc.gov/laws/guidance/section-12-religious-
discrimination#_Toc203359519. Deluxe requests that the Court take judicial notice of the
EEOC’s Compliance Manual, as it did through its Memorandum Opinion concerning Deluxe’s
Motion to Dismiss (ECF No. 16, pg. 10).

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his religious beliefs. Brennan/Ott Email Correspondence, dated May 24, June 15, June 16,

and July 14, 2017 (Ex. 10) (Ott Dep. Ex. 2 (excerpted)).

20. Mr. Brennan refused to answer the two questions that Deluxe added to the Training to

comply with the Consent Decree. Ex. 10; Ex. 5; Ex. 4 (Pettengill Dep. 16:18 – 18:14).

21. In these emails, Mr. Brennan stated the following regarding Deluxe policy:

[God] created male and female, and although someone can cut off body parts and inject
themselves with hormones, they can never become a different sex. Now as I understand
it, Deluxe's policy requires employees to address a person using pronouns reflecting
the sex that the person identifies him/herself with, and not necessarily the sex they were
born as … Let me be quite clear on this. I will never ever be following this
guideline. If God created someone as a man, I will use the pronoun 'him' to refer to that
person, or if God created someone as a woman, I will use the pronoun 'her' to refer to
that person. Bruce Jenner was created a man. He can cut things off and do whatever
procedure he wants, but he will never become a woman, and I will never address him
as such. It is an abomination to the God that created this universe.

Ex. 10. (Emphasis added.)

22. Ms. Ott consulted with Kimberly Pettengill, Employee Relations Manager, regarding Mr.

Brennan’s refusal to complete the training and stated intent not to abide by Deluxe policy

concerning non-discrimination and non-harassment of transgender employees. Ms.

Pettengill subsequently consulted with Mary Budge, in-house attorney for Deluxe, about

Mr. Brennan’s refusal to complete the training. Ex. 4 (Pettengill Dep. 17:24 – 20:03).

23. Deluxe concluded that it was not required to excuse Mr. Brennan from the requirement of

completing the Training, because the Training did not require him to change his religious

beliefs. Moreover, Deluxe concluded that excusing Mr. Brennan from completing the

Training would have violated its ongoing obligations under the Consent Decree. Ex. 4

(Pettengill Dep. 20:09-24).

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24. On July 14, 2017, Deluxe, via email from Petra Ott, informed Mr. Brennan of its decision

that he would not be excused from the requirement to complete the Training. Ex. 10; Petra

Ott Dep. 27:10-18 (Ex. 11).

25. Mr. Brennan never completed the Training and as a result his salary was reduced by 1%

effective approximately March 2018. Ex. 1, ¶ 12. 

D. Mr. Brennan’s Disciplinary Record with Deluxe

26. On August 26, 2016, ten months before Mr. Brennan refused to complete the training, Mr.

Vain issued Mr. Brennan a disciplinary action for “failure to perform duties as assigned.”

The disciplinary action stated that “failure to be able to meet this requirement will result in

termination.” Brennan Disciplinary Action (Exhibit 12) (Brennan Dep. Ex. 10).

27. On August 28, 2016, Mr. Brennan complained about Mr. Vain to Kathleen Strakes, former

owner of Payce, alleging that Mr. Vain was targeting him with disciplinary action because

he had told Mr. Vain that he would not perform work on “illegal OEM software.”

According to Mr. Brennan, Mr. Vain had improperly ordered another employee to install

such software on a Payce computer server. Brennan email to Strakes, dated August 28,

2016 (Exhibit 13) (Brennan Dep. Ex. 11).

28. On March 29, 2018, Mr. Vain gave Mr. Brennan another disciplinary action for

unsatisfactory performance. Brennan Formal Warning (Ex. 14) (Brennan Dep. Ex. 16).

29. On April 4, 2018, Mr. Brennan made a complaint about the second disciplinary action to

Wendi Arnston, Human Resources Manager, accusing Mr. Vain of “holding a grudge” due

to Mr. Brennan’s “pointing out to [their] former manager (Josh Lindenmuth) that [Mr.

Vain] was having extended personal conversations during non-break periods…” and “for

the time [Mr. Brennan] confronted him about asking Mark Crist to illegally install OEM

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software on another machine.” Brennan Email to Arnston, dated April 4, 2018 (Exhibit 15)

(Arnston Dep. Ex. 4 (excerpted)).

30. On April 20, 2018, based upon Mr. Vain’s request and recommendation, Deluxe terminated

Mr. Brennan’s employment due to performance issues. Mr. Vain was the sole decision-

maker in the termination of Mr. Brennan. Brennan Termination (Exhibit 16) (Brennan Dep.

Ex. 18 (excerpted)); Mark Vain Dep. 70:20 – 71:14 (Ex. 17); Ex. 7 (Wendy Arnston Dep.

54:21 – 56:19).

31. Nowhere in the record, including in the Complaint or in his Deposition, has Mr. Brennan

argued that Mr. Vain’s actions were motivated by Mr. Brennan’s failure to complete the

Training and his request to be exempted from so doing. Rather, Mr. Brennan has argued

that Mr. Vain acted out of motives unrelated to the facts of this case. Ex. 1; Ex. 13; Ex. 15;

Ex. 2 (Brennan Dep. 173:15 – 174:16, 176:10 – 177:02).

32. Ms. Pettengill, Julie Loosbrock (Chief Human Resources Officer), and Ms. Ott were not

involved in the decision to terminate Mr. Brennan’s employment. Ex. 4 (Pettengill Dep.

25:2-21; Ex. 6 (Loosbrock Dep. 51:18 – 53:14); Ex. 11 (Ott Dep. 21:7 – 23:11).

33. Deluxe did not consider Mr. Brennan’s refusal to complete the Training in its decision to

terminate Mr. Brennan’s employment. Ex. 7 (Arnston Dep. 64:20 – 65:19); Ex. 17 (Vain

Dep. 82:2-20).

E. Mr. Brennan’s Allegations against Deluxe

 
34. Mr. Brennan filed EEOC Charge No. 531-2018-01223 alleging religious discrimination on

February 5, 2018 and received a Notice of Right to Sue in relation to this charge on

February 18, 2018. Mr. Brennan did not allege retaliation in this charge. EEOC Charge No.

531-2018-01223 and Notice of Right to Sue (Ex. 18).

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35. Mr. Brennan filed EEOC Charge No. 531-2018-02465 alleging retaliation and religious

discrimination on May 21, 2018 and received a Notice of Right to Sue in relation to this

charge on December 13, 2019. EEOC Charge No. 531-2018-02465 and Notice of Right to

Sue (Ex. 19).

36. Mr. Brennan filed a Complaint in this matter on July 11, 2018 and did not include a claim

of retaliation. Ex. 1. 

37. Mr. Brennan filed Objections to Magistrate Judge David Copperthite’s Order of September

21, 2020 on October 4, 2020 in which he took legal positions relevant to this Motion.

Plaintiff’s Objections to U.S. Magistrate Judge’s Order of September 21, 2020 (Ex. 20).  

III. ARGUMENT

A. Standard of Review.

Pursuant to Federal Rule of Civil Procedure 56(c), a moving party shall be entitled to

judgment in its favor if “there is no issue as to any material fact and . . . the moving party is entitled

to judgment as a matter of law.” In deciding a motion for summary judgment, the court “must draw

all justifiable inferences in favor of the nonmoving party, including questions of credibility and of

the weight to be accorded particular evidence.” See Masson v. New Yorker Magazine, Inc., 501

U.S. 496, 520 (1991) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). To

survive a motion for summary judgment, there must be evidence upon which the jury could

reasonably find in favor of the nonmoving party; a scintilla of evidence is not enough. See Liberty

Lobby Inc., 477 U.S. at 252. If the entire record could not allow a rational fact finder to find in

favor of the nonmoving party, then there is no genuine issue to be resolved at trial. See Matsushita

Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted).

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The Court of Appeals for the Fourth Circuit has expressly recognized that trial judges have

an “affirmative obligation . . . to prevent ‘factually unsupported claims and defenses’ from

proceeding to trial.” Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (citation

omitted). Further, in employment discrimination actions, the Court of Appeals has stated that it is

not the role of the court to “sit as a super-personnel department weighing the prudence of

employment decisions.” Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 272 (4th

Cir. 2005) (citing DeJamette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998)).

B. Elements of a Religious Discrimination – Failure to Accommodate Claim.

To establish a prima facie failure-to-accommodate claim, a plaintiff must show (1) he has

a bona fide religious belief or practice that conflicts with an employment requirement and (2) the

need for an accommodation of that religious belief or practice served as a motivating factor in the

employer’s adverse employment action. Abeles v. Metropolitan Washington Airports Authority,

676 Fed. Appx. 170, 176 (4th Cir. 2017) (citing Chalmers v. Tulon Co. of Richmond, 101 F.3d

1012, 1019 (4th Cir. 1996) and E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768

(2015)).

If the employee establishes a prima facie case, the burden then shifts to the employer to

show that it could not reasonably accommodate the plaintiff's request without undue hardship.

E.E.OC. v. Firestone Fibers & Textiles Co., 515 F.3d 307, 312 (4th Cir. 2008) (quoting Chalmers,

101 F.3d at 1019); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To satisfy

its burden, the employer must demonstrate either (1) that it provided the plaintiff with a reasonable

accommodation for his or her religious observances or (2) that such accommodation was not

provided because it would have caused an undue hardship. Firestone, 515 F.3d at 312 (citing

Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 67 (1986)). An “undue hardship” exists when it

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would result in “more than a de minimis cost” to the employer. Id. See also Trans World Airlines,

Inc. v. Hardison, 432 U.S. 63, 84 (1977).

C. Deluxe is Entitled to Summary Judgment on Plaintiff’s Count of Failure to

Accommodate because Plaintiff’s Request Constituted an Undue Hardship.

As noted above, if an employer can establish that a plaintiff’s accommodation request

created more than a “de minimis” cost to the employer, the employer need not grant the request.

Hardison, 432 U.S. at 84. Courts have held accommodation requests that require a violation of law

exceed the “de minimis” cost and constitute an undue hardship. In Baltgalvis v. Newport News

Shipbuilding Inc., the U.S. District Court for the Eastern District of Virginia considered whether

an employer was required to make a religious accommodation for an employee’s request not to

provide his social security number at the time of hire based on his religious beliefs. Baltgalvis, 132

F. Supp. 2d 414 (E.D.Va. 2001). The court granted the defendants’ motion for summary judgment

on two grounds. First, the court concluded that because the requirement to provide a social security

number was a legal requirement established by the Internal Revenue Service, the requirement was

“imposed by federal law and merely implemented” by the employer, and therefore not an adverse

action taken by employer. Baltgalvis, 132 F. Supp. 2d, at 418-19 (citing Seaworth v. Pearson, 203

F.3d 1056 (8th Cir. 2000)). The court also held that the request constituted an undue hardship, since

“the burden of applying for a waiver of the IRC’s statutory penalty provision is also more than de

minimis and therefore, constitutes an undue hardship for [employer] as a matter of law.”

Baltgalvis, 132 F. Supp. 2d, at 418-19; see also Seaworth, 203 F.3d at 1057 (“Even if a waiver [of

the social security number requirement] could be obtained, we think that the expense and trouble

incident to applying for it imposes a hardship that is more than de minimis, as a matter of law.”)

(internal citation omitted); Sutton v. Providence St. Joseph Medical Center, 193 F.3d 826, 830 (9th

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Cir. 1999) (holding that “employer is not liable under Title VII when accommodating an

employee's religious beliefs would require the employer to violate federal or state law.”).

The Supreme Court applied a similar rationale in Trans World Airlines, Inc. v. Hardison,

in which an employee sought a religious accommodation to be off work on Saturdays inconsistent

with his employer and union’s collectively bargaining seniority system. 432 U.S. 63. In rejecting

the argument that “statutory obligation to accommodate religious needs takes precedence over both

the collective-bargaining contract and the seniority rights…,” the Supreme Court held “that neither

a collective-bargaining contract nor a seniority system may be employed to violate the statute, but

we do not believe that the duty to accommodate requires TWA to take steps inconsistent with the

otherwise valid agreement.” Id. at 79. The Supreme Court noted that “[i]t would be anomalous to

conclude that by ‘reasonable accommodation’ Congress meant that an employer must deny the

shift and job preference of some employees, as well as deprive them of their contractual rights, in

order to accommodate or prefer the religious needs of others, and we conclude that Title VII does

not require an employer to go that far.” Id. at 81; see also Firestone, 515 F.3d at 317 (holding that

Title VII does not require violation of collective bargaining agreement to grant accommodation

request); Harrell v. Donahue, 638 F.3d 975, 980 (8th Cir. 2011) (“The accommodation requested

by Harrell that he be given every Saturday as a scheduled day off would have violated the CBA,

and the USPS was therefore not required under Title VII to grant Harrell’s request.”); U.S. v. Board

of Educ. for School Dist. of Philadelphia, 911 F.2d 882, 891 (3rd Cir. 1990) (“If, as held in

Hardison, it is an undue hardship on an employer to require it to violate its collective bargaining

agreement by exposing its senior employees to weekend work, we think it follows a fortiori that it

would be an undue hardship to require a school board to violate an apparently valid criminal

statute…”).

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In US Airways, Inc. v. Barnett, the Supreme Court considered whether, within the context

of the Americans with Disabilities Act, a disabled employee was entitled to a transfer as a

reasonable accommodation that would violate the employer’s seniority system, which was not

collectively bargained. 535 U.S. 391 (2002). In finding for U.S. Airways, the Supreme Court

expanded its holding in Hardison, holding that its rationale also applies to cases of employer-

mandated seniority systems outside of the collective bargaining context, and that requests to

deviate from such established employer policies will be an undue hardship absent “special

circumstances.” 535 U.S. 391, 403-06 (2002) (citing Hardison, 432 U.S. at 79-80). In so holding,

the Court noted that a seniority system “provides important employee benefits by creating, and

fulfilling, employee expectations of fair, uniform treatment” and “an element of due process” by

limiting “unfairness in personnel decisions.” Id. at 404-05. The Court noted that imposing a

complex, case-specific accommodation decision by management in place of the “more uniform,

impersonal operation” of standard rules “might well undermine the employees’ expectations of

consistent, uniform treatment…” Id.

The holdings of Baltgalvis, Hardison, and similar cases make clear that Mr. Brennan’s

request to be excused from completing the Training constituted an undue hardship on Deluxe. Like

the defendants in Baltgalvis and Hardison, Deluxe had legal obligations, to include those under

the Consent Decree, which it simply could not ignore. The Consent Decree was a court order that

required specific actions by Deluxe to comply. Statement of Facts (“SOF”) ¶¶ 4 – 17. If Deluxe

had violated its terms, which it would have done if it had exempted Mr. Brennan from the

requirement to complete the Training, it would have faced legal jeopardy with the United States

District Court for the District of Minnesota, as well as conflict with the EEOC. See, e.g., Shillitani

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v. U.S, 384 U.S. 364, 370 (1966) (“There can be no question that courts have inherent power to

enforce compliance with their lawful orders through civil contempt.”) (internal citations omitted).

This conclusion is further supported when one considers the broader legal framework

regarding the issue of harassment and discrimination against transgender persons. Mr. Brennan

worked for Deluxe in Maryland. Since 2014, Maryland law has explicitly protected employees

against discrimination and harassment based upon gender identity. Md. Code § 20-602, 606.4

EEOC guidance also supports Deluxe’s decision in relation to Mr. Brennan’s request for

accommodation.5 Section 12 (“Religious Discrimination”) of the EEOC’s Compliance Manual

states that an employer need not excuse an employee from training that provides information on

how to comply with its nondiscrimination policies. The Compliance Manual lays out an example

of undue hardship which is strikingly similar to the facts of this case:

14. What if an employee objects on religious grounds to an employer-sponsored

program?

Some private employers choose to express their own religious beliefs or practices in
the workplace, and they are entitled to do so. However, if an employer holds religious
services or programs or includes prayer in business meetings, Title VII requires that
the employer accommodate an employee who asks to be excused for religious reasons,
absent a showing of undue hardship. Similarly, an employer is required to excuse an
employee from compulsory personal or professional development training that
conflicts with the employee’s sincerely held religious beliefs or practices, unless doing
so would pose an undue hardship. It would be an undue hardship to excuse an
employee from training, for example, where the training provides information on
how to perform the job, or how to comply with equal employment opportunity
obligations, or on other workplace policies, procedures, or legal requirements.

4
  Federal law under Title VII is now fully in accord with Maryland law based upon the Supreme
Court’s ruling in Bostock v. Clayton County Georgia, 140 S. Ct. 1731 (2020), when the Court held
that Title VII’s prohibition against discrimination and harassment based upon one’s sex includes
gender identity and sexual orientation.
5
This version of the EEOC Compliance Manual was issued on July 22, 2008 and was in place
during the relevant time.
16
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Ex. 9, § C, ¶ 7 (emphasis added).

In this case, Deluxe added the questions at issue regarding the treatment of transgender

employees specifically to comply with the requirements of the Consent Decree. SOF ¶¶ 4 – 16.

These questions were directly related to remedying discrimination against transgender employees,

as prohibited by Maryland law, and in full accord with the guidance issued by the EEOC. This

context further supports Deluxe’s position that violating the Consent Decree by excusing Mr.

Brennan from completing the Training would constitute an undue hardship.

The Supreme Court’s rationale in Barnett also supports Deluxe’s decision, because Deluxe

required all employees to complete the Training; the Training generally covered EEO topics of

great importance, including the prevention of harassment, discrimination, and retaliation; and

Deluxe imposed the 1% salary reduction upon any employee who failed to complete it. SOF ¶¶

13, 16. As noted above, the Supreme Court in Barnett held that, in the context of a request for

accommodation, deviation from a clearly established, uniformly applied work rule would create

an undue hardship absent special circumstances. Barnett, 535 U.S. at 404-406. In this case, there

is no factual dispute about whether Deluxe uniformly applied its policy mandating the Training

uniformly. SOF ¶ 16. The factors present in Barnett, namely the “important employee benefits by

creating, and fulfilling, employee expectations of fair, uniform treatment,” would be undermined

if Deluxe were required to deviate from its requirement that all employees complete the Training,

the purpose of which was to further “fair and uniform treatment” of Deluxe employees without

regard to protected classes. Barnett, 535 U.S. at 404-405.

The holdings in Baltgalvis, Hardison, and Barnett, the requirements of the Consent Decree, the

protections afforded to employees based upon gender identity under Maryland law, and the

EEOC’s guidance on this issue squarely support the conclusion that that Mr. Brennan’s request to

17
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be excused from completing the Training constituted an under hardship for Deluxe. As a result,

Deluxe is entitled to summary judgment on Mr. Brennan’s religious accommodation claim.

D. Plaintiff Cannot Establish a Prima Facie Case of Failure to Accommodate in Relation

to his Termination.

As noted above, to establish a prima facie case, Plaintiff must demonstrate that (1) he had

a bona fide religious belief or practice that conflicts with an employment requirement and (2) the

need for an accommodation of that religious belief or practice served as a motivating factor in the

employer’s adverse employment action. Abeles v. Metropolitan Washington Airports Authority,

676 Fed. Appx. at 176. Courts in the Fourth Circuit, including the Court of Appeals, have found

that a plaintiff has met the second element of the prima facie case when the plaintiff was

disciplined for the reason of failing to perform the specific employment requirement for which he

requested accommodation. See, e.g., U.S. Equal Employment Opportunity Commission v. Consol

Energy, Inc., 860 F.3d 131, 143 (upholding verdict finding that denial of accommodation resulted

in constructive discharge); E.E.O.C. v. Ithaca Industries, Inc., 849 F.2d 116, 117 (4th Cir. 1988)

(finding plaintiff made prima facie case when demonstrating that he was discharged for failing to

work on sabbath);  Batson v. Branch Banking and Trust Co., 2012 WL 4479970, *5 (D. Md.

September 25, 2012) (finding employee made prima facie case when demonstrating that employer

terminated her due her inability to work on Saturdays due to her religious beliefs); Redmon v.

Flexsol Packaging Corporation, 2020 WL 967619, *7 (W.D.N.C. February 27, 2020) (plaintiff

demonstrated he was terminated for failing to work on Sunday).

In this case, however, Plaintiff, without legal basis, is proposing an interpretation of the

failure to accommodate claim that is akin to the McDonnell Douglas burden shifting framework

for a disparate treatment or retaliation claim. 411 U.S. 792; see also, e.g., Waag v. Sotera Defense

Solutions, Inc., 857 F.3d 179, 191-92 (4th Cir. 2017) (applying McDonnell Douglas framework in

18
 Case 1:18-cv-02119-ELH Document 78-2 Filed 10/28/20 Page 19 of 23

retaliation context). For instance, Plaintiff has previously claimed in this case that Mr. Vain’s

stated reason for terminating him is pretextual, and that the actual reason is animus toward his

request for accommodation. Ex. 21, ¶ 17.6

By attempting to include an evaluation of pretext and animus in a failure to accommodate

case, Mr. Brennan is impermissibly attempting to bootstrap a claim of discrimination or retaliation

into this case. The Court, however, granted Deluxe’s Motion to Dismiss regarding Plaintiff’s

disparate treatment claim, and Plaintiff has not filed a retaliation claim in this case.

Mr. Brennan filed an EEOC charge claiming retaliation, for which the Notice of Right to

Sue was issued on December 13, 2019, giving him until March 12, 2020 to attempt to add a claim

of retaliation to his Complaint, which he did not do. Ex. 18, Ex. 19. The Court of Appeals has held

that receipt of a Notice of Right to Sue creates a 90-day statute of limitations to file a claim under

the respective charge. Watts-Means v. Prince George's Family Crisis Center, 7 F.3d 40, 42 (4th

Cir. 1993). Mr. Brennan is now precluded from adding a claim of retaliation to the Complaint, and

the Court should not apply the McDonnell Douglas framework and permit Plaintiff to turn his

failure to accommodate claim into a discrimination or retaliation claim.

However, even if the Court were to apply the McDonnell Douglas burden-shifting analysis,

the record provides no evidence to support any assertion by Plaintiff that Deluxe’s stated reason

for his termination is pretextual. Plaintiff offers no direct evidence linking his request to be excused

from the Training to Deluxe’s decision to terminate his employment. Rather, the record

6
In his Objections, Plaintiff argued that “Plaintiff is entitled to obtain documents necessary to
assist him in claiming that the termination was part of Defendant’s failure to accommodate claim,
and that the asserted reasons for his termination, three months after Plaintiff’s pay was reduced,
were a pretext, and that the real reason Plaintiff was terminated was on account of his failure to
complete the Ethics Compliance Course.” Ex. 21, ¶ 17.
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demonstrates that Mark Vain, Mr. Brennan’s immediate supervisor, decided to terminate Mr.

Brennan’s employment for a legitimate, non-discriminatory reason, namely poor performance.

SOF ¶¶ 26, 28, 30. Mr. Vain and Ms. Arnston, the Human Resources manager to whom Mr. Vain

recommended Plaintiff’s termination, testified that Mr. Brennan’s failure to complete the Training

was not a factor in his termination. SOF ¶ 33. Ms. Ott, Ms. Pettengill, and Ms. Loosbrock (the

corporate Human Resources personnel involved in handling Mr. Brennan’s refusal to complete the

Training) testified that they were not involved in the termination decision. SOF ¶ 32.

Moreover, Mr. Vain first disciplined Mr. Brennan in August 2016, nine months before Mr.

Brennan first expressed any objection to completing the Training. SOF ¶¶ 19, 26. Mr. Vain clearly

perceived that Mr. Brennan had significant performance problems long before Mr. Brennan

objected to completing the Training, which demonstrates that Mr. Vain’s decision to terminate his

employment for poor performance had nothing to do with Mr. Brennan’s request for an

accommodation. Furthermore, after receiving the disciplinary action in 2016, Mr. Brennan

complained to management that Mr. Vain was targeting him for termination because he reported

that Mr. Vain had directed a coworker to download unlicensed software onto the Deluxe server.

SOF ¶ 27. After receiving the disciplinary action in March 2018, Mr. Brennan again complained

to Human Resources, stating that Mr. Vain was targeting him due to “grudges” he held against Mr.

Brennan for his prior complaints. SOF ¶ 29. These reasons, proffered by Mr. Brennan, did not

relate to his refusal to complete the Training.

The extended lapse in time of approximately ten months from Mr. Brennan’s refusal to

complete the Training (i.e., in May and on June 17, 2017) until Mr. Vain’s decision to terminate

his employment (i.e., on April 20, 2018) also squarely refutes any possible inference that Mr.

Vain’s termination decision bore any nexus to Mr. Brennan’s request for accommodation. This

20
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Court, citing Fourth Circuit precedent, has noted that a “lengthy time lapse” between defendant

becoming aware of the protected activity and the adverse action “negates any inference that a

causal connection exists between the two.” Murphy-Taylor v. Hofmann, 968 F. Supp. 2d 693, 720

(D.Md. 2013) (citing Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 501

(4th Cir. 2005) (internal citations omitted)). In determining what constitutes a lengthy time lapse,

the Court of Appeals has held that a nine-month lapse between the protected activity and the

adverse action is “too remote” to establish a causal connection between the two. Booth v.

Maryland, 337 Fed. Appx. 301, 310 (4th Cir. 2009); see also Pascual v. Lowe’s Home Ctrs., Inc.,

193 Fed. Appx. 229, 233 (4th Cir. 2006) (holding a “three- or four- month lapse” is too long to

alone establish a causal connection); Perry v. Kappos, 489 Fed. Appx. 637, 643 (2012) (finding

ten weeks to be too long a length of time to establish a causal connection absent other evidence).

This Court has also held that “[w]here timing is the only basis for a claim of retaliation,

and gradual adverse job actions began well before the plaintiff had ever engaged in any protected

activity, an inference of retaliation does not arise.” Murphy-Taylor v. Hofmann, 968 F. Supp. 2d

at 720-21 (quoting Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 309 (4th Cir. 2006)

(internal quotations omitted)); see also Nelson v. J.C. Penney Co., Inc., 75 F.3d 343, 346 (8th Cir.

1996) (finding no inference of causation when there supervisors reprimanded the plaintiff before

they knew of his discrimination complaints); Slattery v. Swiss Reinsurance America Corp., 248

F.3d 87, 95 (2nd Cir. 2001).

In this case, Mr. Vain formally disciplined Mr. Brennan for poor performance in August

2016, nine months before Plaintiff informed Deluxe management that he would not complete the

Training, and Deluxe terminated Mr. Brennan for poor performance ten months after he declared

to management that he would “never ever” complete the Training and comply with the

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requirements of Deluxe’s policy.7 SOF ¶¶ 28, 30. Mr. Brennan therefore cannot establish a causal

connection between his request for accommodation and his termination based upon “temporal

proximity” and as a result, his claim of failure to grant a reasonable accommodation relating to his

termination fails as a matter of law.

IV. CONCLUSION

WHEREFORE, for the foregoing reasons, Defendant Deluxe respectfully requests that the

Court grant its Motion and enter judgment in favor of Deluxe as to Plaintiff’s count of failure to

accommodate his religious beliefs. Defendant Deluxe also requests that the Court award it costs

pursuant to Fed. R. Civ. Proc. 54 (d)(1), and award it any other relief which it deems to be fair and

just.

October 28, 2020

Respectfully submitted,

/s/ John B. Flood

John B. Flood, MD No. 27925
Anthony M. Marcavage (pro hac vice motion pending)
FLOOD LAW LLC
1 Research Court, Suite 450
Rockville, MD 20850
Phone: (240) 599-8024
Fax: (301) 519-8001
Email: [email protected]
Email: [email protected]

Counsel for Defendant Deluxe

7
Mr. Vain also issued Plaintiff a formal warning for poor performance in March 2018, nine
months after Mr. Brennan’s request for accommodation. (Ex. 14).
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 Case 1:18-cv-02119-ELH Document 78-2 Filed 10/28/20 Page 23 of 23

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

)
FREDERICK J. BRENNAN, )
Plaintiff, )
)
)
v. )
) Case No. 1:18-cv-02119-ELH
DELUXE CORPORATION, )
)
Defendant. )
)
)

CERTIFICATE OF SERVICE

I hereby certify that on October 28, 2020, the foregoing was served by the Court’s

ECF/electronic filing system on the following person:

John B. Stolarz, Esq.

THE STOLARZ LAW FIRM
6509 York Road
Baltimore, MD 21212
Tel: (410) 532-7200
Fax: (410) 372-0529
[email protected]

Counsel for Plaintiff

/s/ John B. Flood

John B. Flood, MD No. 27925

23