Opinion text
IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
DAVID STONE, AN INDIVIDUAL,
Plaintiff/Appellant,
v.
PIMA COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF ARIZONA,
Defendant/Appellee.
No. 2 CA-CV 2025-0219
Filed June 11, 2026
Appeal from the Superior Court in Pima County
No. C20231812
The Honorable Wayne E. Yehling, Judge
REVERSED AND REMANDED
COUNSEL
Pacific Justice Institute, Tucson
By Carmen E. Lyon
Counsel for Plaintiff/Appellant
Laura Conover, Pima County Attorney
By Harris Rubin, Yvette Patterson, J. William Brammer Jr., and James W.
Rappaport, Deputy County Attorneys, Tucson
Counsel for Defendant/Appellee
STONE v. PIMA COUNTY
Opinion of the Court
OPINION
Judge O’Neil authored the opinion of the Court, in which Judge Eckerstrom
and Judge Sklar concurred.
O’ N E I L, Judge:
David Stone appeals from the superior court’s grant of
summary judgment in favor of Pima County. The court concluded that
undisputed facts established the County had made good faith efforts to
provide Stone a reasonable accommodation, consistent with Title VII of the
Civil Rights Act, after he declined COVID-19 vaccination for religious
reasons. We reverse the court’s decision because genuine issues of material
fact precluded summary judgment concerning the reasonableness of the
County’s accommodation.
Background
Stone was a defense investigator for Pima County’s Public
Defense Services (PCPDS). Part of his job was to investigate cases and
facilitate communication with people in jail. According to Stone, by 2021,
he rarely met people in person at the jail. He conducted most interviews by
video and had not entered the jail for about a year.
In October 2021, the Pima County Board of Supervisors
mandated COVID-19 vaccination for employees in contact with
“vulnerable populations.” The mandate required employees in covered
positions to be fully vaccinated by the end of 2021. Otherwise, those
employees could not continue working in their positions absent a
qualifying exemption. The County determined that incarcerated people
were vulnerable, which meant PCPDS employees were covered.
The County created a reappointment process for employees
who declined vaccination due to sincerely held religious beliefs. That
process required employees to engage with the county’s Human Resources
department (HR) and seek reappointment into vacant county positions that
did not require interaction with vulnerable populations. Reappointment
was limited, however, to positions at an equal or lower salary grade. The
process also required employees to find qualifying positions, notify HR,
obtain consent from the appointing authorities for the proposed new
positions, and meet minimum qualifications. HR would handle the
2
STONE v. PIMA COUNTY
Opinion of the Court
administrative process of reappointment. An unvaccinated employee who
did not find a qualifying reappointment by the deadline would be
terminated.
Stone requested a religious exemption from vaccination in
September 2021. Even before the vaccine mandate, Stone had been
pursuing a criminal investigator position with the Pima County Attorney’s
Office (PCAO) through a separate hiring process. That position required
additional certification. After determining that Stone’s existing position
with PCPDS required vaccination, the County informed him of the
reappointment process and the deadline for identifying and notifying HR
of an eligible vacant position. It assigned him an HR coordinator to help
with that process. Stone responded that he was transferring to the PCAO
“as a detective/investigator” and had taken the necessary steps to secure
that position. But because that position was higher paid, it did not qualify
for the County’s reappointment process. Stone did not identify any equal
or lower-paid vacancy for HR to evaluate, nor did he engage further with
HR. In January 2022, the PCAO withdrew its anticipated offer for the
criminal investigator position because Stone could not meet the additional
certification requirement. The County later scheduled a “[p]re-action”
meeting for employees who had not yet found replacement positions.
Stone did not attend. The County terminated Stone’s employment.
Stone filed this action alleging wrongful termination,
retaliation, and religious discrimination, including failure to accommodate.
The County moved to dismiss several counts, which the superior court
granted, leaving only the failure-to-accommodate claim. The County later
moved for summary judgment on that remaining claim. After a hearing,
the court granted the motion, concluding the undisputed record established
that the County had made good faith efforts to accommodate and that Stone
had not availed himself of the offered accommodation. We have
jurisdiction over his appeal. A.R.S. §§ 12-120.21 and 12-2101(A)(1).
Discussion
Stone contends the superior court resolved disputed facts and
drew inferences against him when it determined, as a matter of law, that
the County had offered a “reasonable accommodation.” He further
contends the County’s process did not satisfy Title VII’s accommodation
requirements, including asserted duties to engage in back-and-forth
negotiation and to consider alternatives to reappointment or termination.
3
STONE v. PIMA COUNTY
Opinion of the Court
Summary judgment is appropriate when the moving party
demonstrates that no genuine issue of material fact exists and that it is
entitled to prevail as a matter of law. Ariz. R. Civ. P. 56(a). We review
statutory interpretation and summary judgment questions de novo. Wilks
v. Manobianco, 237 Ariz. 443, ¶ 8 (2015). In doing so, we view the evidence
in the light most favorable to the party against whom judgment was
entered. McAlister v. Loeb & Loeb, LLP, ___ Ariz. ___, ¶ 21, 571 P.3d 891, 897
(2025).
Title VII prohibits religious discrimination and requires an
employer to reasonably accommodate an employee’s religious practice if it
can do so without undue hardship. See 42 U.S.C. §§ 2000e-2(a)(1), 2000e(j);
Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 73-74 (1977). Specifically,
Title VII makes it unlawful for an employer “to discharge any individual,
or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of
such individual’s . . . religion.” § 2000e-2(a)(1). And “religion” is defined
as including “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.” § 2000e(j). In other words, when an employee’s sincerely
held belief conflicts with a job responsibility, an employer must reasonably
accommodate it unless doing so would cause undue hardship. Heller v. EBB
Auto Co., 8 F.3d 1433, 1437-38 (9th Cir. 1993).
In keeping with this requirement for employers, a prima facie
claim for failure to accommodate requires an employee to show a sincere
religious belief that conflicts with an employment requirement, notice to
the employer of the belief and the conflict, and adverse treatment resulting
from the conflict. Id. at 1438. Once the employee has made those showings,
the employer must demonstrate it “initiated good faith efforts to
accommodate the employee’s religious practices.” Id.
Under Ninth Circuit case law, on which both parties rely, an
employer satisfies its obligation when it offers an accommodation that
eliminates the religious conflict and reasonably preserves the employee’s
employment status. Am. Postal Workers Union, S.F. Loc. v. Postmaster Gen.,
781 F.2d 772, 775-77 (9th Cir. 1986). To avoid running afoul of Title VII, that
accommodation must preserve the employee’s “compensation, terms,
conditions, [and] privileges of employment.” Id. at 776. If the employer has
provided a reasonable accommodation, the inquiry ends. Ansonia Bd. of
Educ. v. Philbrook, 479 U.S. 60, 68 (1986). The employer need not prove that
4
STONE v. PIMA COUNTY
Opinion of the Court
any alternative accommodations preferred by the employee would impose
undue hardship. Id. But if the employer’s proposed accommodation does
not reasonably preserve the employee’s status, “the employer has not
satisfied its obligation.” Am. Postal Workers Union, S.F. Loc., 781 F.2d at 777.
This accommodation framework contemplates “mutual
cooperation,” including an employee’s correlative duty to make a good
faith attempt to satisfy his needs through means offered by the employer.
Id. The employee is not required, however, to make “any efforts to
compromise his or her religious beliefs or practices before seeking an
accommodation from the employer.” Heller, 8 F.3d at 1438. Rather, once
the employee has notified the employer of a conflict with a sincere belief, it
is incumbent on the employer to make good faith efforts at accommodation.
See id.
For purposes of the County’s motion for summary judgment,
the parties did not dispute that Stone’s religious objection to the COVID-19
vaccination is sincere, that he had informed the County of that objection,
and that he suffered adverse treatment due to the resulting conflict, in the
form of termination. See id. The question, then, is whether the record
presents a genuine dispute that the County failed to initiate good faith
efforts to accommodate Stone’s belief.
The undisputed record shows that the County offered Stone
a mechanism that could have resulted in reappointment to a vacant county
position not involving “vulnerable populations,” assuming such a position
existed. But the process itself gave no indication that any reappointment
would have been to a position that preserved Stone’s employment status.
See Am. Postal Workers Union, S.F. Loc., 781 F.2d at 776. To the contrary, the
reappointment mechanism required Stone to find a position of equal or
lesser pay. And in fact, nothing about the mechanism itself suggested that
Stone would ultimately receive any accommodation at all. Even if a suitable
position was available, the prospective department would have decided
whether to consider his reappointment through a competitive or
non-competitive process. In other words, the reappointment mechanism
required Stone to find his own accommodation, but without guaranteeing
that the County would treat his application any differently from that of a
non-employee even if he found a qualifying open position, much less that
it would preserve his employment status and compensation.
Title VII, by contrast, places no burden on an employee to find
a way to accommodate his religious beliefs alongside his employment
obligations. See Heller, 8 F.3d at 1438. The obligation to accommodate
5
STONE v. PIMA COUNTY
Opinion of the Court
instead rests with the employer. §§ 2000e-2(a)(1), 2000e(j). In arguing that
its reappointment mechanism amounted to a reasonable accommodation,
the County points to Stone’s failure to adequately engage with the process
it provided for him to seek a new position. The County insists that the
process, had Stone pursued it, could have resulted in a position that
preserved his status. Citing American Postal Workers Union, San Francisco
Local, the County emphasizes that it was required to take only “some initial
step to reasonably accommodate” Stone, after which the Title VII
framework required Stone to “cooperate in reaching an accommodation.”
781 F.2d at 776-77.
We do not diminish an employee’s obligation to cooperate
with an employer in pursuing an accommodation agreeable to both. A
“reasonable accommodation need not be on the employee’s terms only,”
and an employee must “make a good faith attempt to satisfy his needs
through means offered by the employer.” Id. at 777. But the employee’s
duty presupposes that an employer has offered such means in the first place
by proposing a reasonable accommodation. Id. at 776-77. The fuller context
of American Postal Workers Union, San Francisco Local is instructive:
[W]here a certain aspect of an employment
situation creates a religious conflict for a
particular employee, the employer must take
some initial step to reasonably accommodate the
religious belief of that employee. If the
accommodation proposed by the employer fails to
eliminate the employee’s religious conflict, the
employer must implement an alternate
accommodation proposed by the employee,
unless implementation of that accommodation
would cause “undue hardship” to the
employer.
Id. at 776 (citation omitted) (emphasis added). This analysis equates the
“initial step to reasonably accommodate” with “the accommodation
proposed by the employer.” Id. In other words, the employer’s “initial
step” is to propose a reasonable accommodation. Id. When it has done so,
the employee then has a duty “to cooperate in reaching an
accommodation,” even if the accommodation is not what the employee
might prefer. Id. at 777. But the employer “bears the burden in the first
instance” of proposing an accommodation that “reasonably preserves the
affected employee’s employment status.” Id. at 776-77. If it fails to do so,
6
STONE v. PIMA COUNTY
Opinion of the Court
the employer must show that the employee’s proposed accommodation
would cause undue hardship. Id. at 776; see also EEOC v. Hacienda Hotel, 881
F.2d 1504, 1512 (9th Cir. 1989) (“If the employer does not propose an
accommodation, the employer must accept the employee’s proposal or
demonstrate that the proposal would cause the employer undue
hardship.”).
Although we are not bound by the Ninth Circuit’s analysis,
the essence of this approach follows necessarily from the employer’s
statutory duty. Title VII prohibits adverse action against an employee on
the basis of religion unless the employer is “unable to reasonably
accommodate” the employee’s beliefs without undue hardship.
§§ 2000e-2(a)(1), 2000e(j). Once an employee has shown a religious conflict,
therefore, “the statutory burden to accommodate rests with the employer.”
Am. Postal Workers Union, S.F. Loc., 781 F.2d at 777. The employee is not
required to do more than notify the employer of the belief and the conflict
to trigger that obligation. Heller, 8 F.3d at 1438. And nothing less than a
reasonable accommodation can satisfy it. The County’s argument, in effect,
both lessens the employer’s initial burden and places a prior burden on the
employee that Title VII does not contemplate.
As noted above, there has been no dispute that Stone has a
sincere religious objection to the vaccine mandate, that he properly
informed the County of the religious conflict, and that the County
terminated him because of it. That is enough to establish a prima facie
claim. Id. The sole question, then, is whether, as a matter of law, the County
satisfied its obligation to propose a reasonable accommodation. Anything
less than a reasonable accommodation, absent a showing of undue
hardship, was a violation of Title VII. The facts here, when viewed in the
light most favorable to Stone, demonstrate only that the County’s
reappointment mechanism—had Stone seen it through to completion—
might or might not have reasonably accommodated Stone’s beliefs. See
McAlister, ___ Ariz. ___, ¶ 21, 571 P.3d at 897. But the nature of the
mechanism left Stone to seek his own accommodation; and even had he
found an available position with equal status and compensation, the
mechanism permitted the County to treat his application no differently
from any other. Given these characteristics of the mechanism, we cannot
say that it met the County’s obligation to propose a reasonable
accommodation as a matter of law.
We acknowledge that Stone did not fully engage with the
County’s reappointment mechanism, because he sought employment with
7
STONE v. PIMA COUNTY
Opinion of the Court
the PCAO on his own. Stone’s own ultimately unsuccessful efforts do not
affect our analysis, at least for summary judgment purposes, of the
mechanism offered by the County. Whether that mechanism satisfied the
County’s obligation is a genuine issue of material fact that precludes
summary judgment. See Ariz. R. Civ. P. 56(a).
We express no opinion as to whether a reasonable factfinder
might conclude the County’s reappointment mechanism amounted to a
reasonable accommodation. This is a question for trial. Nor does our
analysis limit the arguments of either side at trial.
Disposition
We reverse the superior court’s grant of summary judgment
and remand for further proceedings. Stone requests an award of attorney
fees and costs on appeal pursuant to Rule 21, Ariz. R. Civ. App. P., A.R.S.
§§ 12-341, 12-342, and 42 U.S.C. § 2000e-5(k). We deny his request because
it is premature, at this stage, to regard either party as having prevailed.
8