Tiano

Tiano v. Dillard Department Stores, Inc.

Good Law
139 F.3d 679·98 Daily Journal DAR 2699·72 Empl. Prac. Dec. (CCH) 45,204·76 Fair Empl. Prac. Cas. (BNA) 561·1998 U.S. App. LEXIS 5017
United States Court of Appeals for the Ninth CircuitMarch 18, 1998Nos. 96-16723, 96-16955California2,544 words

Opinion

Lead Opinion

Wiggins, J.

Mary Tiano sued her employer Dillard Department Stores (“Dillard’s”) for unlawful termination in violation of Title VII, 42 U.S.C. §§ 2000e et seq., for failure to make reasonable accommodation of her religious beliefs. Dillard’s terminated Tiano, a Dillard’s salesperson, after she departed on a ten-day “pilgrimage” to Medjugorje, Yugoslavia.

The district court found in favor of Tiano, holding that (1) Tiano established a prima facie case of religious discrimination, (2) Dillard’s failed to demonstrate that it had made a reasonable effort to accommodate Tiano’s religious beliefs, and (3) such reasonable accommodation would not have resulted in undue hardship to Dillard’s. The court awarded Tiano $16,445.65 in lost wages. Dillard’s appealed the finding of religious discrimination, and Tiano cross-appealed the damage award. This court has jurisdiction pursuant to 28 U.S.C. § 1291 , and we reverse the finding of religious discrimination under Title VII.

BACKGROUND

Plaintiff-Appellee Mary Tiano was employed at Dillard’s in the Park Central Mall in Phoenix, Arizona, in 1988. She worked in the women’s shoe department as a salesperson. Dillard’s considered her a productive employee, a…

Dissenting Opinion

Fletcher, J.

Dissenting:

I respectfully dissent.

The district court believed Tiano’s testimony when she stated: “I felt that from deep in my heart that I was called. I had to be there at that time. I had to go.” The district court grounded its holding that Ti-ano’s religious belief required her to take her pilgrimage to Medjugorje during those particular days in October on this testimony. We should not disturb its credibility finding.

We have long held that questions of credibility “are generally immune from appellate review.” United States v. Hodges, 770 F.2d 1475, 1478 (9th Cir.1985); accord United States v. McClelland, 72 F.3d 717, 724 (9th Cir.1995). Credibility determinations made-by judges, no less than juries, sitting as triers of fact should be respected. See United States v. Mayberry, 913 F.2d 719, 721 (9th Cir.1990); United States v. Castillo, 866 F.2d 1071, 1078 (9th Cir.1989). This is so because the trier of fact is uniquely positioned to observe the demeanor of a live witness on the stand. The cold record available for appellate review is a poor substitute, especially for something as personal as a religious belief.

Nothing in the record suggests that Ti-ano’s belief that she…

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