Equal Employment Opportunity Commission v. JBS USA, LLC

Filing 418

ORDER denying 330 Motion for Summary Judgment by Judge Philip A. Brimmer on 07/17/15.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 10-cv-02103-PAB-KLM
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
and
IRAQ ABADE, et al.,
Plaintiffs-Intervenors,
and
MARYAN ABDULLE, et al.,
Plaintiffs-Intervenors,
v.
JBS USA, LLC,
d/b/a JBS Swift & Company,
Defendant.

ORDER

This matter is before the Court on the Motion for Summary Judgment and Brief
in Support [Docket No. 330] filed by defendant JBS USA, LLC (“JBS”). This Court has
subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and § 1345.
I. BACKGROUND
This case arises out a conflict between JBS and several hundred Muslim
employees at the JBS beef processing facility in Greeley, Colorado (the “Greeley plant”

or the “Greeley facility”) who sought accommodation from JBS for their religious beliefs.
The conflict reached its height during Ramadan 2008, when employees requested that
JBS accommodate their need to leave the production line to pray at or near sundown.
The employees and JBS were unable to come to an agreement, leading to the
suspension and termination of a large number of Muslim employees. The following
facts are undisputed unless otherwise indicated.
A. Procedural History
On August 30, 2010, plaintiff Equal Opportunity Employment Commission
(“EEOC”) filed this case, claiming that JBS discriminated against its Muslim employees
on the basis of religion by engaging in a pattern or practice of retaliation, discriminatory
discipline and discharge, harassment, and denying its Muslim employees reasonable
religious accommodations. See Docket No. 1.
On August 8, 2011, the Court issued an order bifurcating this case. Docket No.
116 (the “bifurcation order”). The claims before the Court during Phase I are (1)
EEOC’s claim that JBS engaged in a pattern or practice of denying Muslim employees
reasonable religious accommodations (the “religious accommodation claim”), Docket
No. 116 at 18, (2) EEOC’s retaliation pattern or practice claim , and (3) EEOC’s
discriminatory discipline and discharge pattern or practice claim, insofar as the latter
two claims (collectively, the “retaliation and discrimination claims”) are based on the
events taking place during Ramadan 2008. Docket No. 116 at 15. On March 31, 2014,
JBS filed the present motion. Docket No. 330. JBS seeks summary judgment on all
three of EEOC’s Phase I claims. Docket No. 330 at 1.

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B. Greeley Plant Employees
1. Staffing
The Greeley plant employs approximately 3000 people. DSF ¶ 12. 1 Employees
are placed on one of three shifts: the A shift, which operates from 6:00 a.m. to 2:30
p.m., the B shift, which operates from 3:15 or 3:30 p.m. to 11:30 p.m., and the C shift,
which consists of cleaning and sanitation and follows the B shift. DSF ¶ 11; R.
Anderson Dep., Docket No. 330-3 at 2, p. 58:14-22. 2 Roughly 1500 employees are
assigned to the A shift and roughly 1500 employees are assigned to B shift. DSF ¶ 12.
In the days prior to September 10, 2008, approximately 433 Muslim employees worked
on B shift. DSF ¶ 22; Resp. to DSF ¶ 22. The United Food and Commercial Workers
International Union, Local No. 7 (the “union”) is the bargaining agent for all production
employees at the Greeley plant. DSF ¶ 32.
2. Muslim Employees’ Religious Beliefs 3
Muslims customarily pray five times per day. The Fajr prayer takes place in the
morning, the Dhuhr prayer takes place at noon, the Asr prayer takes place in the
afternoon, the Maghrib prayer takes place at sunset, and the Isha prayer takes place in

1

The Court uses this citation format to refer to specific paragraphs within JBS’s
statement of undisputed facts. Citations to “Resp. to DSF” followed by a paragraph
number refer to EEOC’s response to JBS’s statement of undisputed facts. Citations to
“PSF” followed by a paragraph number refer to EEOC’s statement of facts.
2

The parties provide excerpts of deposition testimony from several individuals.
However, the parties do not consistently explain, and it is not always apparent from the
deposition excerpts, the deponent’s role in this case.
3

Although the parties refer to affected Greeley plant employees both as “Somali
Muslim employees” and “Muslim employees,” the Court uses the latter term to refer to
the class of affected employees.
3

the evening. DSF ¶¶ 55-56. Muslim employees differ in the exact amount of time it
takes to perform each prayer, ranging from four minutes to, in some cases, more than
ten minutes. DSF ¶ 57. During Ramadan, Muslim employees must break their fast with
water or food or both after sundown. PSF ¶ 24; Docket No. 349 at 51-62. If a Muslim
employee has gone to the restroom, passed gas, or touched someone of the opposite
sex, ablution or cleansing is also required in connection with each prayer. DSF ¶ 58;
Resp. to DSF ¶ 58. Ablution may take an employee a few additional minutes if done in
conjunction with prayer; however, it can be done at any time prior to prayer, including
during a scheduled break or prior to work. DSF ¶ 58; Resp. to DSF ¶ 58. Not every
Muslim employee has the same belief regarding the length of time within which it is
permissible to perform his or her prayers. DSF ¶ 60.
C. Greeley Plant Operations
1. Production Floor
Carcasses move through the plant via a chain, which carries beef in one
direction from the slaughter area to the cooler, through the fabrication area, and then
into packaging. DSF ¶ 13. The slaughter area is where the cattle are killed, after
which the carcasses are moved into the cooler and assigned a grade, such as “Prime”
or “Choice.” DSF ¶ 16. The fabrication area is where the carcasses are cut into pieces
and processed. DSF ¶ 20. The fabrication area is organized into multiple lines, each of
which is responsible for processing a different aspect of the animal. J. Palacios Dep.,
Docket No. 330-18 at 2-3, pp. 106:7-112:7. For example, there are multiple boning
lines, a rib line, an arm line, a break line, a value added line, and a loin line. Id. Only

4

one grade of cattle at a time may be run through the fabrication area. DSF ¶ 17. After
passing through the fabrication area, the processed beef moves into the packaging
area where it is prepared for shipping. DSF ¶ 23.
The chain moves beef through the facility at a certain speed (the “chain speed”).
DSF ¶ 14. Although the chain speed can vary, slaughter and fabrication employees are
required to work at a pace that corresponds with the chain speed. Id. The United
States Department of Agriculture (“USDA”) sets the maximum chain speed in the
slaughter area of the plant. DSF ¶ 15. Because the plant operates on an assem bly
line, JBS is required to correlate the chain speeds in the slaughter and fabrication
areas. Id. Because only one grade of cattle at a time may be run through the
fabrication area, multiple grade changes occur per shift. DSF ¶ 19. The number of
grade changes per shift varies from three to 20. Resp. to DSF ¶ 19. A one to f ive
minute gap in the chain occurs during every grade change. DSF ¶ 18.
The number of employees assigned to each line varies; several Muslim
employees often work on the same line. DSF ¶¶ 21-22. Typically there is one
supervisor and one or two team leads per line. DSF ¶ 31. A trainer may also be
assigned to certain lines, who is available to fill in for employees who take unscheduled
breaks. Resp. to DSF ¶ 31. For example, the value added line has only 15 to 20
employees, id., whereas the break line has one supervisor and two team leads
supervising 85 employees. DSF ¶ 31. The number of employees needed to do a
particular job at a particular chain speed is referred to as “crewing.” DSF ¶ 27. The
parties agree that proper crewing is important for employee safety and product quality.
DSF ¶ 30. JBS contends that, in every instance where the chain speed is increased, an
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increase in crewing is required. DSF ¶ 28. EEOC disputes this, asserting that crewing
varies depending on the increase in chain speed and the position. “Ov er-crewing”
refers to over-staffing lines so as to account for absent employees and vacations. DSF
¶ 29. The Greeley plant typically over-crews at 115-117%. PSF ¶ 63. JBS claims that
over-crewing is not meant to account for employees taking unscheduled breaks,
whereas EEOC asserts that over-crewing is in fact used to help spell employees off the
line for unscheduled breaks. Id.; Resp. to DSF ¶ 29.
Some of the lines in the fabrication area are physically demanding and difficult.
DSF ¶ 20. Production employees wear a variety of safety equipment depending on
their position, which can include hard hats, hair nets, safety glasses, gloves, boots,
metal-mesh gloves, arm-guards, and aprons. DSF ¶ 24; Resp. to DSF ¶ 24.
Employees must remove at least some of this safety equipment prior to leaving the
production floor and put it back on before returning to the line. DSF ¶ 25; Resp. to DSF
¶ 25. Employees vary in the time it takes them to remove safety equipment when
leaving the line for a break. DSF ¶ 26.
2. Breaks
Pursuant to the collective bargaining agreement (the “CBA”) in effect in 2008,
production employees were entitled to two regular breaks during each shift, which were
required to occur within certain windows of time. The first is a 15-minute rest period
(the “rest break”) approximately halfway through the first part of the shift, which can
occur no earlier than one and a half hours from the start of the shift and no later than
three hours from the start of the shift. DSF ¶ 34. The second is a 30-minute meal
break approximately halfway through the shift. Id. Employees were not be required to
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work more than three and a half hours without a break, unless three and three quarters
hours of work would complete the workday. Id.4
The general procedure for taking a break was for employees in the slaughter
area to stop placing beef on the chain to create either a 15-minute gap for a rest break
or a 30-minute gap for a meal break. DSF ¶ 39. Employees would begin their break
when the gap in the chain reached them, which resulted in employees leaving the line
in a staggered fashion – employees nearer the beginning of the line beginning their
breaks first, employees nearer the end of the line beginning their breaks last. DSF ¶¶
40-41. JBS staggers rest and meal breaks in such a way so as to avoid leaving beef
unattended on the line for extended periods of time, which increases the risk of food
safety issues. Id.; Resp. to DSF ¶ 41. Thus, during regular breaks, tables are cleaned
and sanitized. DSF ¶ 51.
The parties dispute when the rest and meal breaks traditionally took place during
the B shift. JBS claims that the rest break has historically occurred at around 6:00 p.m.
and the meal break at around 9:00 p.m. DSF ¶ 37. EEOC argues that the timing of the
rest and meal breaks varied somewhat more than that, citing, among other things, the
deposition testimony of JBS manager Celio Fritche, who stated that the rest break
generally occurred at 6:15 p.m., but could vary from 5:00 p.m. to 6:30 p.m., and that the
meal break generally occurred between 8:30 p.m. and 9:15 p.m. C. Fritche Dep,
Docket No. 349-69 at 9-10, pp.77:20-78:10. JBS acknow ledges that the timing of the
4

The parties refer to these as “scheduled breaks,” which is a slightly misleading
label because, as discussed below, the precise timing of the breaks varied somewhat.
Thus, the Court will refer to the rest and meal breaks collectively as “regular breaks,”
rather than “scheduled breaks.”
7

breaks varied somewhat because rest and meal breaks were, to the extent possible,
coordinated with a grade change or mechanical failure. DSF ¶ 38. EEOC disputes that
regular breaks were always coordinated with a grade change. Resp. to DSF ¶ 19
(citing deposition of JBS team leader, A. Mosqueda Dep., Docket No. 349-76 at 10, p.
58:6-10 (“Q And they will change the break to coincide with a grade change? A No,
not really. Q Okay. Why else do they move the break? A Pretty much just if the
machinery breaks down.”).
Unscheduled breaks are a different matter. Absent regular breaks, employees
are allowed to leave the line to get a drink of water or for restroom emergencies. DSF
¶¶ 43-44. The parties dispute whether employees must receive permission before
leaving the line to get a drink of water. DSF ¶ 44; Resp. to DSF ¶ 44. In nonemergency situations, employees may request permission to take unscheduled breaks
to use the restroom. DSF ¶ 45. Unscheduled bathroom breaks take between ten to 15
minutes. DSF ¶ 47. JBS admits, however, that its supervisors responded differently to
requests for unscheduled breaks and that some supervisors were more lenient than
others. DSF ¶ 48. Mr. Fritche testified that, regardless of the reason the employee
requests the break, supervisors are trained to grant employees permission to leave the
line for an unscheduled break when possible. C. Fritche Dep., Docket No. 349-69 at 2,
p. 45:2-24. Plant Manager Ron Gould testified that unscheduled breaks were for
restroom purposes only, such that using an unscheduled break to pray would be
deemed an unauthorized break. R. Gould Dep., Docket No. 349-73 at 6-7, p.72:2473:15; id. at 8, p. 74:12-18. Supervisor Billie Danley also testified that unscheduled
breaks were for restroom purposes only and, when asked whether praying during
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unscheduled restroom breaks would be a violation of JBS’s policies, responded, “If you
asked to go to the bathroom, you’ve got to go to the bathroom.” B. Danley Dep.,
Docket No. 349-64 at 5-6, p.34:20-35:2.
Mass unscheduled breaks require all employees to leave the production line at
the same time. Such breaks are undesirable because they cause beef to be left on the
line and do not allow for the cleaning of work areas. DSF ¶¶ 49-50. Moreover, per
USDA regulations, beef that remains on the slaughter floor for more than 45 minutes
must be classified as “distressed,” which cuts the value of the meat in half. DSF ¶¶ 5153. Additionally, mass breaks are unpopular with employees because locker rooms,
restrooms, and cafeteria facilities are too small to accommodate an entire shift of
employees at the same time. DSF ¶ 54.
D. Ramadan 2008
In 2008, Ramadan ran from September 1 through September 30. DSF ¶ 105.
Maghrib prayer times ranged from 7:30 p.m. on September 1 to 6:42 p.m. on
September 30. Docket No. 330-93. On Tuesday, September 2, between 40 and 100 B
shift Muslim employees approached Superintendent Juan Palacios af ter their shift and
requested a 7:30 p.m. break. DSF ¶ 106; PSF ¶ 19. EEOC asserts that Muslim
employees only requested that this accommodation take place during Ramadan. JBS
disputes this. PSF ¶ 19; Resp. to PSF ¶ 19. Mr. Palacios did not g rant their request,
but advised them to contact the HR department. DSF ¶ 107. On Wednesday,
September 3, approximately 200 Muslim employees gathered outside the plant before
the B shift. DSF ¶ 108. Human Resources Director Eric Ray met with the crowd of
Muslim employees and asked the employees to select a committee to speak for them.
9

DSF ¶ 108; Resp. to DSF ¶ 108. The Muslim employees selected 5 to 7
representatives (the “Muslim employee committee” or the “committee”) to meet with
Greeley plant management. DSF ¶ 110. All other Muslim employees began work at
3:15 p.m. at the start of the B shift. Resp. to DSF ¶ 108.
JBS claims that the Muslim employee committee could not agree on either the
amount of time needed to pray or the appropriate window in which the Maghrib prayer
must be performed. DSF ¶ 111. EEOC asserts that the committee explained that they
required 15 minutes around sunset to pray and break their fast. PSF ¶ 24. According
to EEOC, the committee did not disagree about the appropriate prayer window; rather,
the committee agreed that moving the meal break to 7:30 p.m. for the remainder of
Ramadan would be a reasonable accommodation. Resp. to DSF ¶ 111; PSF ¶ 25; see
also Asad Abdi Dep., Docket No. 349-48 at 14, p. 77:1-7. T he committee also
proposed alternative accommodations, such as moving the rest break to correspond
with sunset or allowing unscheduled breaks for prayer. PSF ¶ 28. JBS refused to allow
unscheduled breaks for prayer. PSF ¶ 29. However, at no time did the Muslim
employee committee request that the company change the meal break from a rolling
break to a mass break or request that Muslim employees be granted an extra break.
PSF ¶ 31. As a result of this meeting with the committee, JBS agreed to move the
meal break from approximately 9:30 p.m. to 7:30 p.m. on that day, Wednesday,
September 3. DSF ¶ 112.
On Thursday, September 4, the Muslim employee committee met with Greeley
plant management. An agreement was reached to keep the meal break at 7:30 p.m. on
Thursday and Friday. DSF ¶ 115. JBS asserts that many non-Muslim employees were
10

angry with the change as evidenced by the fact that approximately 200 non-Muslim
employees refused to leave the line during the Thursday meal break. DSF ¶ 116.
EEOC disputes this, asserting that JBS supervisor Robert Anderson did not recall
receiving any complaints from non-Muslim employees, R. Anderson Dep., Docket No.
349-61 at 16-17, p. 139:20-140:2, and that non-Muslim production employee Alicia
Espinoza was not bothered by the changed meal time. A. Espinoza Dep., Docket No.
349-67 at 5, p.75:4-6. Moreover, operations manager Chris Kitch testified that perhaps
40 or 50 non-Muslim employees refused to leave the line at the 7:30 meal break. C.
Kitch Dep., Docket No. 349-83 at 18, p. 117:4-16.
JBS claims that many non-Muslim employees left the line at 9:15 p.m. – when
the meal break normally took place –, which forced JBS to reduce the chain speed to
cover for their absences. DSF ¶ 117. The number of non-Muslim employees who left
the line is unclear as is whether production was affected. Production employee Emerita
Garcia testified that she was not aware of any fellow non-Muslims leaving the line at
9:15 p.m. on Thursday, September 4. E. Garcia Dep., Docket No. 349-70 at 6,
p. 161:17-21. JBS’s production records show that the Greeley plant had an average
chain speed of 362 on September 2, 3, at 4. Docket No. 351 at 1. JBS Corporate
Comptroller Heather Skinner testified that the Greeley plant had higher production
numbers the week of September 1 than it had the previous week. H. Skinner Dep.,
Docket No. 349-101 at 2-3, p. 151:19-152:9. Nonetheless, the parties ag ree that the
non-Muslim employees who left the line at 9:15 p.m. engaged in an unauthorized work
stoppage, but were not disciplined. PSF ¶¶ 84-86; Resp. to PSF ¶ 84.
On Friday, September 5, approximately 200 non-Muslim employees gathered
11

outside the plant, indicating that they would refuse to return to work until the meal break
was moved back to its normal time. DSF ¶ 118; PSF ¶ 87. The non-Muslim
employees’ primary complaint was that a 7:30 p.m. meal break was too early and made
the last half of their shift feel longer. DSF ¶ 119. The non-Muslim employees selected
representatives to speak on their behalf with Greeley plant management and the rest
returned to work, but work on the production floor began late as a result of the protest.
Resp. to DSF ¶ 118; DSF ¶ 121; PSF ¶ 88; see also R. Gould Dep., Docket No. 349-73
at 28, p. 185:2-20. EEOC asserts that none of the employees who refused to start work
on time were disciplined. PSF ¶ 89. The non-Muslim employee representatives
indicated that they felt Muslim employees were receiving preferential treatment. DSF
¶ 122. Mr. Ray explained to the non-Muslim employee committee that the break was
being moved in an effort to accommodate Muslim employees’ religious needs, DSF
¶ 120, but EEOC claims that JBS did not explain that the break was being moved due
to its legal obligation to accommodate religious practices. PSF ¶ 51. After meeting
separately with both the Muslim and non-Muslim employee representatives, JBS
decided to move the meal break to 8:00 p.m. DSF ¶ 123. Mr. Ray testified that JBS
reached this decision in an effort to find a compromise between the requests of both
groups. E. Ray Dep., Docket No. 330-19 at 18, p. 166:21-167 :8. The Muslim
employee committee asked that JBS wait until Monday to enact the change, but JBS
refused. Asad Abdi Dep., Docket No. 349-48 at 17-18, p. 80:2-81:23. T he meeting
concluded at approximately 7:00 p.m. PSF ¶ 91; Resp. to PSF ¶ 91. The Muslim
employee committee was then directed to inform Muslim employees of the change, but
the committee did not have time to inform all such employees. PSF ¶ 91.
12

The parties agree that some Muslim employees left the line at 7:30 p.m. that
night, but dispute whether they left in defiance of JBS management or because they
had not been informed that the meal break would occur at 8:00 p.m. DSF ¶ 124; Resp.
to DSF ¶ 124. When the 8:00 p.m. meal break started, employees filtered into the
cafeteria. DSF ¶ 125. Employees were confused as a result of the meal break change.
PSF ¶ 93. The actions of Muslim employees during this meal break are in dispute.
JBS asserts that some Muslim employees were upset, unruly, and stood on tables
shouting. DSF ¶ 125. Mr. Anderson was in the cafeteria during the 8:00 p.m. meal
break for approximately five minutes and recalls that the noise level was not above
average. B. Anderson Dep., Docket No. 349-61 at 18, p. 150:6-9. Mr. Kitch testif ied
that Muslim employees were talking loudly, but he witnessed no other unruly behavior.
C. Kitch Dep., Docket No. 349-83 at 22, p. 137:5-25. JBS asserts that, near the end of
the meal break, a large group of Muslim employees refused to return to work and left
the cafeteria of their own accord. DSF ¶ 126. EEOC asserts that the Muslim
employees who left the plant were ordered to do so by Greeley plant management, but
were willing to return to work. Resp. to DSF ¶ 126; PSF ¶ 94; see also B. Walker Dep,
Docket No. 349-106 at 4, 86:20-23 (“I just remember the ones that didn’t want to go
back to work going out into the parking lot. We had to take them out of the building
because they didn’t want to go back to work. They refused.”). Some Muslim
employees were able to sneak back into the plant and resum e work. PSF ¶ 95.
However, most Muslim employees gathered in the parking lot and remained there until
approximately 11:00 p.m., when management ordered them to leave the property. DSF
¶ 127. EEOC asserts that Muslim employees were willing to return to work, but JBS did
13

not allow them to do so. Resp. to DSF ¶ 128. JBS suspended those em ployees who
did not return to work on Friday. PSF ¶ 97. Numerous Latino workers also left the
plant that night, but were allowed to return to work on Monday. PSF ¶¶ 96, 98. As a
result of these events, the plant was run at a reduced chain speed on Septem ber 5.
DSF ¶ 128.
On Saturday, September 6, JBS managers decided to meet with the Muslim
employee committee the following Monday. DSF ¶ 129. On Monday, September 8, Mr.
Gould, Mr. Ray, JBS’s head of labor relations Doug Schult, and other JBS managers
met with the Muslim employee committee and union representatives. DSF ¶ 131. The
Greeley plant managers explained to the committee that employees could pray at the
plant during scheduled breaks, but informed the committee that Muslim employees who
left the plant on Friday evening were suspended indefinitely pending further
investigation. DSF ¶ 132; PSF ¶ 99. JBS considered the ev ents of Friday evening to
be a work stoppage, which was a terminating offense under the CBA. DSF ¶ 133. JBS
asserts that it wanted Muslim employees to return to work, an assertion which EEOC
disputes. Id.; Resp. to DSF ¶ 133.
On Tuesday, September 9, Greeley plant management again met with the
Muslim employee committee. DSF ¶ 134. JBS claims that the committee refused to
provide an answer when asked what an appropriate prayer window would be and, as a
result of the meeting, JBS believed that the Maghrib prayer must occur exactly at
sunset. DSF ¶¶ 135, 136. The committee informed JBS that some of the suspended
Muslim employees had congregated in a nearby park. DSF ¶ 137; Resp. to DSF ¶ 137.
At approximately 1:00 p.m., JBS asked the committee and union representatives to
14

inform the employees gathered at the park to return to work that afternoon or they
would be terminated, which the committee and union representatives agreed to do.
DSF ¶ 138; PSF ¶ 100. JBS did not communicate directly with suspended Muslim
employees, PSF ¶¶ 102-103, or provide the committee or the union with a list of
suspended employees. PSF ¶ 104. EEOC denies that the com mittee took
responsibility for notifying all suspended Muslim employees of JBS’s decision, Resp. to
DSF ¶ 138, asserting that not all of the suspended employees were gathered at the
park. PSF ¶ 105. When union representative Fernando Rodriquez informed Mr. Ray of
this, Mr. Rodriquez testified that he recalls Mr. Ray responding, “You know what? I
don’t care. If they return, they got their job. If they don’t, they’re fired.” F. Rodriquez
Dep., Docket No. 349-96 at 4, p. 72:16-18. Muslim production employee Farhia Abdi
testified that she was not informed to return to work until approximately 7:30 p.m. on
September 9, but was not aware that she would be fired if she did not return to the plant
that night. F. Abdi Dep., Docket No. 349-49 at 12, p. 330:3-18.
Suspended Muslim employees who did not return to work on September 9 were
terminated on Wednesday, September 10. DSF ¶ 140; PSF ¶ 107. As a result, 96
Muslim employees were terminated. Resp. to DSF ¶ 143. It is unclear whether, before
terminating Muslim employees, Greeley management determined whether or not those
employees were informed to return to work. See PSF ¶ 108. JBS claims that Greeley
plant management met with some employees who did not return to work on September
9 and allowed them to return to work, but EEOC notes that JBS does not identif y any
employees for whom that was the case. Id.; Resp. to DSF ¶ 140.
In the month of September, the B shift fabrication department experienced an
15

overall decrease of 15-20% in chain speed efficiency, DSF ¶ 143, which EEOC claims
was caused by the mass suspension of nearly 200 employees on September 5 and the
termination of 96 Muslim employees on September 10. Resp. to DSF ¶ 143.
E. Accommodations
EEOC claims that, since 2008, Muslim employees have complained about their
inability to pray during work and that JBS has denied Muslim employees’ requests to
pray at work. PSF ¶¶ 1, 18, 24. EEOC contends that JBS has prev ented numerous
employees from praying at work – even during scheduled breaks – and has harassed,
disciplined or threatened to fire those employees caught praying at the Greeley plant.
PSF ¶¶ 2-4; see, e.g., Statement of Liban Adan, Docket No. 349-1 at 38, ¶ 7 (“W hen I
would request a break so I could pray, Patricia and Umberto told me many times that I
was not allowed to pray at work.”); Charge of Discrimination of Mohamed Bunow,
Docket No. 349-1 at 72, ¶ O (“Even during regularly scheduled breaks when the whole
line was breaking, I was told I could not pray. I witnessed managers follow some
Muslim employees into restrooms and locker rooms in order to prevent them from
praying.”); H. Hassan Dep., Docket No. 349-75 at 2, 69:23-25 (“Q Did a yellow hat ever
tell you that you would be fired if you were caught praying? A Yes.”). Union
representative Juan Gonzalez testified that supervisors would monitor restrooms and
explain to employees who were praying in the restroom that such a practice was not
permitted, but Mr. Gonzalez was not aware of any Somali workers being sent to “the
office” or HR for such violations. J. Gonzalez Dep., Docket No. 349-72 at 6, p. 55:2-25.
An email from JBS human resources manager Matthew Lovell dated September 12,
2008 states that twelve employees over the last three days were written up for taking
16

unauthorized breaks, including one employee who “admitted that they said they were
going to the bathroom but were really going to pray.” Docket No. 349-6; see also M.
Lovell Dep., Docket No. 349-84 at 3, p. 73:2-6 (testif ying that he may have, but does
not remember whether he had to continue issuing write-ups to employees who prayed
during bathroom breaks). Mohamed I. Mohamed was employed as a Somali trainer at
the Greeley plant and recalls that “[a] lot” of Somali employees were disciplined for
praying during unscheduled breaks, including verbal warnings for first time violators and
written warnings thereafter. Mohamed I. Mohamed Dep., Docket No. 349-89 at 5,
p. 80:6-22; PSF ¶ 7. Mr. Gonzalez testified that, on average, more Muslim employees
received verbal warnings for not doing their job than non-Muslim employees, but it is
not clear from his testimony what time period he is referring to. J. Gonzalez Dep,
Docket No. 349-72 at 7, p. 57:5-18.
In 2009, JBS changed its policy, allowing employees to pray during unscheduled
breaks during Ramadan 2009 and 2010. PSF ¶¶ 9, 13; see also Docket No. 349-7.
JBS’s Director of Human Resources Robert Daubenspeck testified that, when the policy
was enacted in 2009, supervisors he spoke with were comfortable that such a policy
would not cause disruptions to production and subseq uently reported only isolated
disruptions. R. Daubenspeck Dep., Docket No. 349-65 at 7, pp. 53:18-54:25. He w as
not aware of any burden this placed upon JBS. Id. In July 2011, JBS changed its
policy to allow employees to pray during unscheduled breaks throughout the year. PSF
¶ 12. EEOC asserts that JBS has failed to ensure that supervisors fairly implement the
unscheduled break policy, PSF ¶ 81, and that, despite JBS’s changes in policy, Muslim
employees continue to be denied the ability to pray or break their fast during Ramadan.
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PSF ¶¶ 11, 14, 17.
JBS contends that it has accommodated and continues to accommodate Muslim
employees’ religious needs in the following ways:
•
•
•
•

Permitting employees to pray before and after shifts and during
scheduled break times. DSF ¶ 101.
Allowing Muslim employees to break their fast during Ramadan by
drinking from water fountains near the production line. DSF ¶ 102.
Offering Muslim employees the option to transfer to the A shift.
DSF ¶ 103.
Designating prayer rooms and creating footbaths prior to Ramadan
2009 for Muslim employees to use. DSF ¶ 104.

EEOC disputes that these accommodations are reasonable. As a result, EEOC
proposes two accommodations that it claims would permit the Greeley plant’s Muslim
employees to timely pray in accordance with their religious beliefs. DSF ¶ 66.
Specifically, EEOC requests (1) that a regular break be moved to coincide with required
prayer times (the “regular break accommodation”) or (2) that Muslim employees be
permitted to leave the line for ten to fifteen minutes at their required prayer times as an
unscheduled break (the “unscheduled break accom modation”). Id.5
F. The Nebraska Case
On August 30, 2010, EEOC filed a case against JBS in the United States District
Court for the District of Nebraska (the “Nebraska case”), alleging that JBS violated Title
VII in its treatment of employees at its Grand Island, Nebraska plant (the “Grand Island
plant”). EEOC v. JBS USA, LLC, No. 10-cv-00318-LSC-FG3 (D. Neb. August 30, 2010)
(Docket No. 1 at 1). EEOC brought claims alleging that JBS engaged in a pattern or

5

The parties’ factual arguments concerning the reasonableness of JBS’s
accommodations and EEOC’s proposed accommodations are discussed below.
18

practice of unlawfully denying its Muslim employees religious accommodations,
unlawfully terminating its Muslim employees on the basis of religion and national origin,
and unlawfully retaliating against its Muslim employees because of their requests for
religious accommodations and their complaints of denied religious accommodations.
Id. EEOC’s unlawful termination and retaliation claims were based upon the
termination of Grand Island plant employees “on or about September 18, 2008.”
Docket No. 330-102 at 6, ¶ 7(d)-(e).
The Grand Island and Greeley plants operate similarly in many respects; both
use a production line, with employees in the slaughter and fabrication areas required to
work at the chain speeds. See Docket No. 330 at 5, ¶¶ 13-17. The Grand Island
plant’s A shift runs from 6:00 a.m. to 2:30 p.m., B shift from 3:00 p.m. to 11:30 p.m.
Docket No. 330-103 at 5. The Grand Island workforce consisted of between 2800 and
3000 employees, evenly split between the A and B shifts. Id. In 2008, slightly fewer
than 1500 employees worked on the B shift, 200-300 of whom were Muslim employees.
Id. at 7. The Grand Island plant typically over-crewed by approximately eight to nine
percent. Id. at 10. The CBA in effect at the Grand Island plant provided that
employees would receive one 15-minute paid rest period per shift, approximately 2.5
hours after the start of each shift, meaning the B shift rest period could occur between
5:00 and 6:00 p.m. Id. at 5. The CBA provided that the employees’ 30-minute unpaid
meal break could occur approximately five hours after the start of the shift, with a 30minute variance, meaning the B shift meal break could occur between 7:30 and 8:30
p.m. Id. The procedure for leaving the line at each rest and meal break is substantially

19

the same as the procedure in place at the Greeley plant. See Docket No. 330 at 9-10,
¶ 39-41.
On April 15, 2011, the parties to the Nebraska case entered into a bif urcation
agreement, which provided that EEOC’s pattern or practice claims would be resolved in
Phase I and individual claims resolved in Phase II. Docket No. 330-105 at 2. T he
parties filed cross motions for summary judgment on EEOC’s Phase I claims. Id. at 1.
The court denied both parties’ motions for summary judgment on EEOC’s religious
accommodation claim. Id. at 37. The court granted JBS summary judgment on
EEOC’s termination and retaliation claims, ruling that JBS’s termination of 80 Muslim
employees – the sole basis for such claims – was “a single action in response to the
events of September 18, 2008,” which was insufficient as a matter of law to establish a
pattern or practice of unlawful termination or retaliation. Id. at 39. The court rejected
EEOC’s argument that the 80 terminations should be viewed as discrete, individual
actions. Id.6
EEOC’s Phase I religious accommodations were tried to the court in May 2013.
Docket No. 330-103 at 1. EEOC’s proposed accom modations were “(1) allow Muslim
employees to take unscheduled breaks to pray; and/or (2) move the meal break during
the remainder of Ramadan 2008 (from September 18 through September 30, 2008) to
a time that coincided closely with such employees’ sunset prayer time.” Id. at 33-34.
The court ruled that EEOC satisfied its initial burden under Int’l Bhd. of Teamsters v.
6

The court also rejected EEOC’s attempt to rely on evidence of the mass
termination that occurred at the Greeley plant, ruling that the Colorado case was still in
the discovery phase and that EEOC failed to establish that the events in Greeley
“occurred under the same circumstances as the events in Grand Island.” Id. at 40.
20

United States, 431 U.S. 324 (1977), shifting the burden to JBS to show that both of the
proposed accommodations would create undue hardship. Id. at 32. The court first
considered unscheduled prayer breaks, finding that such breaks would have to have
taken place within ten to fifteen minutes of sunset and would result in 200 employees
leaving the line within a ten-minute window. Id. at 34. The court found that
unscheduled prayer breaks would create food safety and operational efficiency issues,
as well as added costs, which resulted in a more than de minimis cost to JBS. Id. at
35-36. The court also found that such breaks would place a greater than de minimis
burden on non-Muslim co-workers, requiring supervisors to change fill in, causing nonMuslim employees to work harder, and negatively impacting employee morale. Id. at
37. The court next considered moving the designated meal break and converting it to a
mass break, finding that such measures would force 50-60 head of cattle to be
classified as “distressed” and create food safety issues, thereby placing a greater than
de minimis burden on JBS. Id. at 38-39. The court also found that such an
accommodation would cause uneven work periods and shorter work periods for nonMuslim employees, thereby placing a greater than de minimis burden on non-Muslim
coworkers. Id. at 39. As a result, the court concluded that JBS established its
affirmative defense of undue hardship and entered judgment on EEOC’s Phase I claims
in JBS’s favor. Id. at 40.
II. STANDARD OF REVIEW
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that there is no genuine dispute as to any material fact and the

21

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed f act is “material” if
under the relevant substantive law it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary
judgment. Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An
issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a
verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir.
1997).
However, “[w]hen, as in this case, the moving party does not bear the ultimate
burden of persuasion at trial, it may satisfy its burden at the summary judgment stage
by identifying a lack of evidence for the nonmovant on an essential element of the
nonmovant's claim.” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th
Cir. 2001) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998))
(internal quotation marks omitted). “Once the moving party meets this burden, the
burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a
material matter.” Concrete Works of Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513,
1518 (10th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The
nonmoving party may not rest solely on the allegations in the pleadings, but instead
must designate “specific facts showing that there is a genuine issue for trial.” Celotex,
477 U.S. at 324; see Fed. R. Civ. P. 56(e). “To avoid summary judgment, the
nonmovant must establish, at a minimum, an inference of the presence of each

22

element essential to the case.” Bausman, 252 F.3d at 1115 (citing Hulsey v. Kmart,
Inc., 43 F.3d 555, 557 (10th Cir.1994)). “In applying this standard, we view all facts and
any reasonable inferences that might be drawn from them in the light most favorable to
the nonmoving party.” Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th
Cir. 1994).
III. ANALYSIS
A. Pattern or Practice Claims
Pattern or practice suits originated with § 707 of Title VII, 42 U.S.C. § 2000e-6.
The seminal pattern or practice case is Teamsters, 431 U.S. at 324, in which the
Supreme Court laid out the framework for analyzing claims where the government
seeks to remedy an employer’s systematic practice of discrimination. Pattern or
practice claims require the EEOC to “prove more than the mere occurrence of isolated
or ‘accidental’ or sporadic discriminatory acts.” Teamsters, 431 U.S. at 336. To
recover under a pattern or practice theory, discrimination must be “the company’s
standard operating procedure[,] the regular rather than the unusual practice.” Id.
Pattern or practice claims can take a number of different forms, depending on the
unlawful employment practice in which the EEOC alleges the employer systematically
engaged.
“Pattern-or-practice cases differ significantly from the far more common cases
involving one or more claims of individualized discrimination” and are typically tried in
two or more phases. Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1106 (10th
Cir. 2001). During the first phase, the EEOC must establish a prima facie case of

23

pattern or practice of discrimination by “demonstrat[ing] that unlawful discrimination has
been a regular procedure or policy followed by an employer or group of employers.”
Teamsters, 431 U.S. at 360. If the EEOC carries this burden, the employer may defend
against liability by challenging EEOC’s proof or providing nondiscriminatory
explanations for the procedure. Id. at 360-61. If the employer fails to carry this burden,
“a trial court may then conclude that a violation has occurred and determine” whether
prospective relief is appropriate on a class wide basis. Id. at 361. During this first
phase, the EEOC is “not required to offer evidence that each person for whom it will
ultimately seek relief was a victim of the employer’s discriminatory policy” or practice.
Id. at 360. Rather, it must establish that such a policy or practice existed. Id.
Individual relief, if sought, is litigated in subsequent phases. Id. at 361. If the
EEOC prevailed in the first phase, each individual worker is entitled to a presumption
that “any particular employment decision, during the period in which the discriminatory
policy was in force, was made in pursuit of that policy.” Id. at 362. The employer may
then rebut this presumption with evidence that the employment decision was made for
lawful reasons. Id. But, if the EEOC does not prevail “during the first stage of a
pattern-or-practice trial, [individual plaintiffs] are nevertheless entitled to proceed on
their individual claims of discrimination . . . . Naturally, however, they are left to proceed
under the normal McDonnell Douglas framework, rather than benefitting from a
presumption of discrimination.” Thiessen, 267 F.3d at 1106 n.8 (internal citations
omitted).

24

B. Collateral Estoppel
JBS argues that the Nebraska court’s rulings estop EEOC from (1) claiming that
its proposed accommodations of providing unscheduled breaks for prayer and moving
scheduled breaks to sundown are non-burdensome and (2) claiming that the
termination and discipline of Muslim workers during Ramadan 2008 constitutes a
pattern or practice of retaliation and discrimination. Docket No. 330 at 28.
Collateral estoppel or issue preclusion can “preclude relitigation of both issues of
law and issues of fact if those issues were conclusively determined in a prior action.”
United States v. Stauffer Chem. Co., 464 U.S. 165, 170-71 (1984). Mutual def ensive
collateral estoppel applies where, as here, a defendant seeks to preclude the
government from relitigating “the same issue already litigated against the same party in
another case involving virtually identical facts.” Id. at 169. In the Tenth Circuit, a party
asserting collateral estoppel must satisfy four elements:
(1) the issue previously decided is identical with the one presented in the
action in question, (2) the prior action has been finally adjudicated on the
merits, (3) the party against whom the doctrine is invoked was a party, or in
privity with a party, to the prior adjudication, and (4) the party against whom
the doctrine is raised had a full and fair opportunity to litigate the issue in the
prior action.
Estate of True v. C.I.R., 390 F.3d 1210, 1232 (10th Cir. 2004). T he parties dispute only
the first and fourth elements.
Determining the identity of issues between two cases is largely a fact dependent
inquiry. Generally speaking, “changes in facts essential to a judgment will render
collateral estoppel inapplicable in a subsequent action raising the same issues,”
Montana v. United States, 440 U.S. 147, 159 (1979), whereas factual differences which
25

are “of no legal significance whatever in resolving the issue presented in both cases”
will not defeat an otherwise satisfactory assertion of collateral estoppel. Stauffer
Chem., 464 U.S. at 172. The Tenth Circuit has suggested, and the parties agree, that a
number of considerations may be relevant to the first element, such as:
Is there a substantial overlap between the evidence or argument to be
advanced in the second proceeding and that advanced in the first? Does the
new evidence or argument involve application of the same rule of law as that
involved in the prior proceeding? Could pretrial preparation and discovery
relating to the matter presented in the first action reasonably be expected to
have embraced the matter sought to be presented in the second? How
closely related are the claims involved in the two proceedings?
B-S Steel of Kan., Inc. v. Tex. Indus., Inc., 439 F.3d 653, 663 (10th Cir. 2006) (quoting
Restatement (Second) of Judgments § 27 cmt. c.). However, in contrast to the related
doctrine of claim preclusion, this element is satisfied only when an issue is “actually and
necessarily determined” in a prior proceeding “by a court of competent jurisdiction.”
Montana, 440 U.S. at 153.
With respect to the fourth element, “[t]he inquiry into whether a party had a full
and fair opportunity to litigate an issue ‘[o]ften . . . will focus on whether there were
significant procedural limitations in the prior proceeding, whether the party had the
incentive to litigate fully the issue, or whether effective litigation was limited by the
nature or relationship of the parties.’” Murdock v. Ute Indian Tribe of Uintah & Ouray
Reservation, 975 F.2d 683, 689 (10th Cir. 1992) (quoting Sil-Flo, Inc. v. SFHC, Inc., 917
F.2d 1507, 1521 (10th Cir. 1990)).
1. EEOC’s Proposed Accommodations
EEOC does not dispute that the accommodations it proposes in this case are

26

identical to those proposed in the Nebraska case. See Resp. to DSF ¶ 4. The question
then becomes whether EEOC is collaterally estopped from litigating the issue of
whether those accommodations result in undue hardship.
a. Identity of Issues
JBS argues that the evidence relevant to EEOC’s proposed accommodations
and JBS’s undue hardship defense in both cases is “virtually identical.” Docket No. 330
at 30 (citing JBS’s Statement of Undisputed Material Facts). JBS’s argument is
conclusory and makes little attempt to differentiate between those facts material to its
undue hardship defense and those facts that are of no legal significance as is its
burden to do. Because the undue hardship def ense generally turns on “the particular
factual context of each case,” Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1490 (10th
Cir. 1989) (quotation omitted), JBS’s argument is insufficient to establish this element.
Moreover, EEOC identifies multiple differences between the Greeley and Grand
Island plants that may be essential to the judgment in this case. First, the parties agree
that over-crewing occurred at higher levels in Colorado. Docket No. 360 at 14. JBS
argues that these differences are immaterial because EEOC admits that over-crewing
would not provide enough extra employees to cover for Muslim employees leaving the
line for prayer breaks. Docket No. 360 at 14 (citing PSF ¶ 72). JBS misinterprets
EEOC’s position. EEOC asserts that over-crewing is one of several measures that JBS
supervisors could have used to accommodate Muslim employees. PSF ¶ 72 (citing
Resp. to DSF ¶ 72 (stating that JBS schedules breaks at the same time as grade
changes, which happens approximately every 20 minutes)). As a result, the fact that
over-crewing alone may not provide enough employees to cover for Muslim employees’
27

prayer breaks does not eliminate the possibility that over-crewing, when combined with
other measures, may be sufficient to effectuate the unscheduled break accommodation
at the Greeley plant without undue hardship.
Second, there is evidence upon which to conclude that staffing levels differed
between the plants. See J. Shandley Dep., Docket No. 349-100 at 4, p. 74:11-23. Both
plants appear to have had roughly 1500 employees on the B shift during 2008, but the
Greeley plant B shift appears to have been staffed with a larger percentage of Muslim
employees than the Grand Island plant. Compare Docket No. 330 at 6, ¶ 22 (“433
Muslim employees worked on B shift” at Greeley plant), with Docket No. 330-103 at 7
(finding that 200-300 Muslim employees worked on the B shift fabrication side at the
Grand Island plant). The Court is not convinced that difference is immaterial to the
undue hardship analysis. JBS points out, for example, that the Nebraska court
determined that a rolling or staggered meal break to coincide with sundown would
create uneven work periods and upset non-Muslim employees. Docket No. 360 at 14.
However, a higher percentage of Muslim employees on the Greeley plant B shift may
mean a lower percentage of non-Muslim employees upset by uneven work periods,
which is not necessarily legally insignificant to the undue hardship analysis. Cf. Harrell
v. Donahue, 638 F.3d 975, 980 (8th Cir. 2011) (noting that an accommodation may
result in undue hardship “if it causes more than a de minimis impact on co-workers”).
Third, EEOC argues that the CBA in operation at the Greeley plant, unlike the
Grant Island plant’s CBA, had larger time windows in which management could
schedule breaks during the B shift. Docket No. 349 at 45. For example, the first break
could occur between 5:00 p.m. and 6:00 p.m. at the Grand Island plant, but between
28

4:45 p.m. and 6:15 p.m. at the Greeley plant. Resp. to DSF ¶ 34. The meal break at
the Grand Island plant could take place between 7:30 p.m. and 8:30 p.m., but between
7:30 p.m. and 10:00 p.m. at the Greeley plant. Id. JBS contends that these differences
would not allow it greater flexibility to move the scheduled break near sundown and, as
a result, have no bearing on the undue hardship analysis. Docket No. 360 at 13. The
Court is not convinced. The possibility of uneven work periods was one the factors the
Nebraska court found important in ruling that mass meal breaks placed a greater than
de minimis burden on non-Muslim co-workers. Docket No. 330-103 at 39. JBS has
greater flexibility to adjust break times at the Greeley plant to address this concern of
uneven work periods. JBS had the ability at the Greeley plant to, for example, move
the first break to 4:45 p.m. and meal break to 7:30 p.m., which may have resulted in
slightly more even work periods. Moreover, the meal break at the Greeley plant was
moved to 7:30 p.m. for two days, and the parties dispute whether the move caused any
decline in productivity. PSF ¶¶ 45, 47. This bears directly on JBS’s claims that the
proposed accommodations would negatively impact non-Muslim coworkers.
Fifth, EEOC argues that the Nebraska case was “premised on transforming a
rolling meal break into a mass break at a different time,” implicating additional costs,
food safety concerns, and employee objections to the overcrowding of common areas.
Docket No. 349 at 46. In contrast, EEOC contends that the Greeley Muslim employees
did not request an additional mass break, but instead asked that the norm al rolling meal
break be moved to an earlier time during Ramadan, which, EEOC argues, would not
implicate additional costs, food safety concerns, or overcrowding issues. Id. JBS
argues that the Nebraska court’s finding concerning the undue hardship imposed by
29

mass meal breaks is nonetheless relevant to this case where it admits EEOC requests
only rolling or staggered breaks, but the Court is not convinced.
It is undisputed that the Nebraska court did not consider ev idence concerning the
Greeley plant. Docket No. 349 at 45; Docket No. 360 at 15. JBS arg ues that this fact is
immaterial to determining the identity of issues between the two cases because the
facts in the two cases are sufficiently identical. However, because the Nebraska court
did not consider evidence from this case, it cannot be said that the Nebraska court
“actually and necessarily determined” the question of whether the proposed
accommodations placed upon JBS an undue hardship at the Greeley plant. See
Montana, 440 U.S. at 153. As JBS argued in its briefing on its motion for summary
judgment in the Nebraska case, “[d]iscovery is ongoing in the Greeley case and, as a
result, the Court should not consider events that allegedly occurred at a separate JBS
plant as part of the EEOC’s pattern or practice case here.” Docket No. 349-26 at 104.
Although the discovery between the two cases may have overlapped to a limited extent,
see Docket No. 330 at 30; Docket No. 349 at 47, the “pretrial preparation and discov ery
relating to” the Nebraska case cannot “reasonably be expected to have embraced” the
issues related to issue of undue hardship at the Greeley plant. See B-S Steel, 439 F.3d
at 663.
Although both cases involve application of the same rule of law and involve
claims that are closely related, JBS has failed to establish that the factual differences
between this case and the Nebraska case are legally insignificant and the Court further
finds that the balance of considerations weighs against finding that the identity of issue
element is satisfied. Cf. Dodge v. Cotter Corp., 203 F.3d 1190, 1198 (10th Cir. 2000)
30

(“the Boughton trial did not resolve whether the same released contaminants in
whatever directions or forms or times amounted to negligent conduct as to each Dodge
plaintiff with a clear indication the parties intended to be bound f or all future
proceedings by that finding”).
b. Opportunity to Litigate
EEOC argues that it was not permitted to present evidence related to the
Greeley plant in the Nebraska case and was therefore denied a full and fair opportunity
to litigate the undue hardship issue with respect to the Greeley plant. Docket No. 349
at 48. Because the Nebraska court did not consider ev idence related to the Greeley
plant – an outcome which JBS appears to have advocated for, see Docket No. 349-26
at 104 – and because discovery in this case and the Nebraska case did not take place
simultaneously, EEOC’s ability to litigate the undue hardship issue with respect to the
Greeley plant was significantly limited. See Murdock, 975 F.2d at 689. JBS fails to
address this argument and, as a result, fails to establish this element.
For the foregoing reasons, the Court cannot conclude that EEOC is collaterally
estopped from litigating the issue of undue hardship with respect to its reasonable
accommodation claim.
2. Retaliation and Discrimination
JBS argues that, because EEOC’s retaliation and discrimination claims are
based upon a “one-time decision to terminate, en masse, Somali Muslim workers,” such
claims are estopped by the Nebraska court’s decision that a one-time event cannot
support a pattern or practice claim. Docket No. 330 at 32. EEOC disputes that the

31

termination of Muslim employees at the Greeley plant arose under the same
circumstances as the termination of Muslim employees at the Grand Island plant.
Resp. to DSF ¶ 141.
a. Identity of Issues
JBS makes no meaningful attempt to establish the identity of issues element with
respect to these claims. First, EEOC points out that, unlike the present case, its
discrimination claims in the Nebraska case did not allege discriminatory discipline.
Compare Docket No. 330-102 at 6, ¶ 7(d)-(e), with Docket No. 1 at 11. Thus, it does
not appear that the Nebraska court considered whether mass terminations and
discipline constituted a pattern or practice of discrimination. Second, the retaliation and
discrimination claims in the Nebraska case are limited to events taking place “on or
about September 18, 2008,” whereas the retaliation and discrimination claims in Phase
I of this case are comprised of events taking place during Ramadan 2008. Compare
Docket No. 330-102 at 6, ¶ 7(d)-(e), with Docket No. 116 at 15. JBS’s argument that
the present claims and the Nebraska case claims cover the exact same time period is
therefore incorrect. Third, the events giving rise to the termination of Muslim employees
are different in each case. JBS appears to have recognized this at one point, arguing
to the Nebraska court that EEOC should not be perm itted to introduce evidence of
events taking place at the Greeley plant. See Docket No. 349-26 at 122 (“JBS
adamantly refutes that the events in Greeley were under ‘the same circumstances’”). In
the Nebraska case, for example, 150 Muslim employees refused to report for work on
September 15, 2008 and a large group again refused to report for work on September

32

16. Docket No. 330-103 at 22. It appears the Muslim employees returned to work on
September 17, but staged a protest in the cafeteria on September 18. Id. at 24-25.
The 70-80 Muslim employees who left the plant that night were terminated. Id. at 26.
In this case, EEOC asserts that, on September 5, 2008, JBS managers ordered 200
Muslim employees to leave the plant – the Muslim employees did not leave of their own
accord. PSF ¶ 94. Muslim employees who did not sneak back into the plant were
suspended for Monday, September 8, which JBS later turned into an indefinite
suspension. PSF ¶¶ 97, 99. On Tuesday, September 9, JBS decided that the
suspended Muslim employees could return to work; 96 employees who failed to do so
were terminated. PSF ¶¶ 100, 102, 106-107; Resp. to DSF ¶ 143. T hus, whereas JBS
appears to have made a single decision to terminate Muslim employees at the Grand
Island plant, EEOC’s retaliation and discrimination claims in the present case are based
on multiple decisions to discipline and terminate Muslim employees.7 JBS does not
contend that these factual differences are legally insufficient and the Court finds no
reason to so conclude.
As discussed above, the Nebraska court barred evidence of events taking place
at the Greeley plant, which means that the Nebraska court cannot have “actually and
necessarily determined” the question of whether the events of Ramadan 2008
constituted a pattern or practice of retaliation or discrimination as a matter of law. See
Montana, 440 U.S. at 153. Moreover, JBS does not establish that discovery on the
Nebraska claims and Colorado claims overlapped to a significant degree. JBS has
7

EEOC identifies additional factual differences, none of which JBS refutes.
Resp. to DSF ¶ 141.
33

therefore failed to establish the identity of issues element and, for the reasons
discussed above, the full and fair opportunity to litigate element.8
This aspect of JBS’s motion for summary judgment is denied.
C. Religious Accommodation Claim
“Title VII imposes an obligation on the employer ‘to reasonably accommodate
the religious practices of an employee or prospective employee, unless the employer
demonstrates that accommodation would result in undue hardship on the conduct of its
business.’” Thomas v. Nat’l Ass’n of Letter Carriers, 225 F.3d 1149, 1155 (10th Cir.
2000) (quoting 29 C.F.R. § 1605.2(b)(1), (2)); see also Ansonia Bd. of Educ. v.
Philbrook, 479 U.S. 60, 63 n.1 (1986). It is the collision between an employee’s
religious practice and an employer’s neutral work policy that implicates a Title VII failure
to accommodate claim, when employees are placed in a position “where they must
choose between their religious convictions and their job.” EEOC v. Abercombie & Fitch
Stores, Inc., 731 F.3d 1106, 1120 (10th Cir. 2013), rev’d on other grounds by --- U.S.
----, 135 S. Ct. 2028 (2015).
The Tenth Circuit has reinforced that the gravamen of a plaintiff’s pattern or
practice claim for failure to accommodate is the unlawful nature of the employer’s
pattern or practice. Davoll v. Webb, 194 F.3d 1116, 1148 (10th Cir. 1999) (citing
Teamsters, 431 U.S. at 360). 9 This raises the question of how the Teamsters burden
8

The Court need not consider EEOC’s remaining arguments on this issue.

9

“[T]he requirement of employers to provide reasonable accommodations for
disabled employees under the [Americans with Disabilities Act (“ADA”)] is analogous to
Title VII’s requirement that employers provide reasonable religious accommodations”
and ADA cases are therefore instructive as to “when an employer’s duty to provide a
34

shifting framework applies in a Title VII failure to accommodate case such as this. In
other words, what burden does the EEOC bear in order to establish the unlaw fulness of
JBS’s pattern or practice of accommodating the religious practices of its employees?
Few courts appear to have squarely addressed this question and the parties’ briefs offer
little assistance.10
JBS concedes for purposes of the present motion that its conduct related to
religious accommodations was a pattern or practice, but disputes that such a pattern or
practice was unlawful. Docket No. 330 at 33. JBS contends that, in order to carry its
burden under Teamsters, EEOC must establish that (1) JBS failed to offer a reasonable
accommodation, (2) EEOC’s proposed accommodation is reasonable, and (2) EEOC’s

reasonable religious accommodation is triggered under Title VII.” See Abercrombie,
731 F.3d at 1141; see also Thomas, 225 F.3d at 1155 n.5 (comparing 42 U.S.C.
§ 2000e(j) and § 12112(b)(5)(A) and concluding that both Title VII and the ADA obligate
employers to make a reasonable accommodation).
10

Were this an action for individual relief the McDonnell Douglas burden-shifting
framework would apply, which requires an employee asserting a religious
accommodation claim to establish that “(1) he or she had a bona f ide religious belief
that conflicts with an employment requirement; (2) he or she informed his or her
employer of this belief; and (3) he or she was [disciplined or] fired for failure to comply
with the conflicting employment requirement.” Thomas, 225 F.3d at 1155. Once the
employee establishes a prima facie case, the burden shifts to the employer to “(1)
conclusively rebut one or more elements of the plaintiff’s prima facie case, (2) show that
it offered a reasonable accommodation, or (3) show that it was unable reasonably to
accommodate the employee’s religious needs without undue hardship.” Id. at 1156;
see also Abercrombie, 731 F.3d at 1122. However, this approach is inapplicable to
pattern or practice claims such as this. See United States v. N.Y. City Transit Auth.,
2010 WL 3855191, at *16 (E.D.N.Y. Sep. 28, 2010) (rejecting argument that McDonnell
Douglas framework applies in pattern or practice religious accommodation case); see
also Thiessen, 267 F.3d at 1106 (“Pattern-or-practice cases differ significantly from far
more common cases involving one or more claims of individualized discrimination.”);
Davoll, 194 F.3d at 1148 (rejecting argument that McDonnell Douglas framework
applies in ADA pattern or practice case).
35

proposed accommodation can be implemented without undue hardship to JBS. Id. at
33-34; Docket No. 360 at 17 n.4. However, in so arguing, JBS cites only individual
rights cases. Docket No. 330 at 33-34 (citing Ansonia, 479 U.S. at 66 (deciding
whether employee was entitled to individual relief); Abercrombie, 731 F.3d at 1122
(“apply[ing] a version of McDonnell Douglas’s burden-shifting approach”)); Docket No.
360 at 17 n.4 (citing Thomas, 225 F.3d at 1155). Moreover, JBS does not provide any
authority, and the Court is aware of none, placing the burden of proving the absence of
undue hardship on the plaintiff. Cf. 42 U.S.C. § 2000e(j) (stating that employer must
reasonably accommodate employee’s religious believes “unless an employer
demonstrates” that doing so would cause it undue hardship (emphasis added)).
EEOC appears to take the opposite position. EEOC recites the McDonnell
Douglas failure-to-accommodate framework, acknowledges that it has the initial burden
under Teamsters to demonstrate unlawful discrimination, and claims that JBS does not
dispute the prima facie case “for failure to provide religious accommodation or
existence of a pattern or practice.” Docket No. 349 at 49. EEOC’s brief does not state
whether it believes JBS has conceded the prima facie case under McDonnell Douglas
or the prima facie case under Teamsters, but EEOC apparently believes that the
burden of establishing the reasonableness of JBS’s accommodations and the
unreasonableness of EEOC’s proposed accommodations has shifted to JBS. See
Docket No. 349 at 52 (“Defendant fails to show EEOC’s proposed accommodations are
unreasonable.”). Like JBS, EEOC’s position relies upon individual rights cases. Id. at
49 (citing Ansonia and Thomas).

36

Thus, the parties seem to agree that EEOC’s religious accommodation claim
turns on the question of whether JBS failed to reasonably accommodate the religious
practices of its Muslim employees and, if so, whether EEOC’s proposed
accommodations are reasonable and/or place an undue hardship on JBS. How ever,
the parties continue to dispute which of these questions EEOC must address as part of
its prima facie case.11
The importance of the burden shifting approach of Teamsters is not necessarily
in the identification of discrete elements, but in recognition that plaintiff must prove that
“there were reasonable grounds to infer that individual . . . decisions were made in
pursuit of the discriminatory policy and to require the employer to come forth with
evidence dispelling that inference.” Teamsters, 431 U.S. 358-60; see also Hohider v.
United Parcel Service, Inc., 574 F.3d 169, 183 (3d Cir. 2009) (noting that Teamsters
framework, like the McDonnell Douglas framework, “provides a means by which courts
can assess whether a particular form of statutorily prohibited discrimination exists”);
Davoll, 194 F.3d at 1148 (“Teamsters sets forth a logical and efficient framework for
allocating burdens of proof in pattern and practice employment discrimination suits”). “It
is Title VII, however, that defines the scope of prohibited discrimination and sets the
substantive boundaries within which the method of proof must operate.” See Hohider,
574 F.3d at 183.
Title VII states that it is an unlawful employment practice to discriminate against
any individual because of that individual’s religion. 42 U.S.C. § 2000e-2(a). Religion,
11

For the reasons discussed below, regardless of where the burden lies, genuine
disputes of material fact exist as to both questions.
37

as Title VII defines the term, “includes all aspects of religious observance and practice,
as well as belief, unless an employer demonstrates that he is unable to reasonably
accommodate an employee’s or prospective employee’s religious observance or
practice without undue hardship on the conduct of the employer’s business.”
§ 2000e(j). As interpreted by the Supreme Court, it is “an unlawful employment practice
. . . for an employer not to make reasonable accommodations, short of undue hardship,
for the religious practices of his employees and prospective employees.” Trans World
Airlines v. Hardison, 432 U.S. 63, 74 (1977); see also Thomas, 225 F.3d at 1155 n.6
(“Congress has already determined that a failure to offer a reasonable accommodation .
. . is unlawful discrimination” (quotations omitted)). “By its very terms the statute directs
that any reasonable accommodation by the employer is sufficient to meet its
accommodation obligation.” Ansonia, 479 U.S. at 68. If an employer fails to provide
such an accommodation, then it violates the statute unless it demonstrates that it is
unable to reasonably accommodate the religious observance and practice of an
employee without undue hardship. Id.
In an ADA failure to accommodate case, the court in United States v. City and
County of Denver, 943 F. Supp. 1304, 1309 (D. Colo. 1996), ruled that, under
Teamsters, plaintiff had the burden of establishing that defendant’s policy failed to
reasonably accommodate and defendant had the burden of showing that it could not
enact a policy that reasonably accommodates without undue hardship. The court ruled
that to establish a prima facie case of failure to accommodate under the ADA the
government had to show (1) that defendant was a covered entity under the ADA, (2)

38

that defendant’s policy or practice “barring the reassignment of officers with disabilities
to vacant positions for which they are qualified is undisputed,” and (3) that defendant’s
policy or practice discriminates against individuals protected by the ADA. Id. The
defendant conceded the first two elements, but argued that the third was unsatisfied
because no reasonable accommodation existed, the government’s proposed
accommodation was unreasonable, and the government’s proposed accommodation
created undue hardship. Id. at 1310. Upon finding that the government established
that defendant’s policy was discriminatory and finding that defendant failed to raise a
genuine dispute of material fact as to undue hardship, the court granted summary
judgment in the government’s favor. Id. at 1312-13. 12 The Tenth Circuit affirmed the
court’s use of the Teamsters burden-shifting framework. See Davoll, 194 F.3d at 1148.
However, the reasonableness of an employer’s accommodations and whether an
employee’s proposed accommodations result in undue hardship are not the only
considerations; a plaintiff must also provide some showing that reasonable
accommodation is possible, which typically comes in the form of proposed
accommodations. See Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259 (1st Cir.
2001) (interpreting ADA). The questions of whether a proposed accommodation is
reasonable and whether a proposed accommodation creates an undue hardship are

12

In New York City Transit Auth., 2010 WL 3855191, at *17, the court, in a denial
of religious accommodation case, ruled that the government could prove a prima facie
case under Teamsters “by showing that the TA’s headwear policies . . . discriminate on
the basis of religion.” The court considered defendant’s remaining arguments – that
defendants offered a reasonable accommodation and that no accommodation could be
granted without undue hardship – only after having assumed without deciding that the
government satisfied its prima facie case. Id. at *17, *19.
39

separate and distinct. See EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307, 314
(4th Cir. 2008). Thus, when proposing an accommodation, plaintiff must “show not only
that the proposed accommodation would enable her to perform the essential functions
of her job, but also that, at least on the f ace of things, it is feasible for the employer
under the circumstances.” Reed, 244 F.3d at 259. This approach to proposed
accommodations has been endorsed by the Supreme Court, which rejected an
argument that statutory words “reasonable accommodation” meant only that a
proposed accommodation was effective and nothing more. See U.S. Airways, Inc. v.
Barnett, 535 U.S. 391, 399, 401-02 (2002) (citing Reed with approval); see also White
v. York Int’l Corp., 45 F.3d 357, 361 (10th Cir. 1995) (holding that, in ADA failure to
accommodate case, plaintiff must “produce[] evidence sufficient to make a facial
showing that accommodation is possible,” at which point “the burden of production
shifts to the employer to present evidence of its inability to accommodate”); Mason v.
Avaya Commnc’ns, Inc., 357 F.3d 1114, 1122 (10th Cir. 2004) (same). Thus, although
there is likely to be considerable evidentiary overlap between the two, the “reasonably
accommodate” and “undue hardship” inquiries are conceptually distinct. Firestone
Fibers, 515 F.3d at 314. 13 Although these are individual rights cases, their analysis is
based upon on the statutory duty to accommodate – not on any particular burdenshifting framework. The statutory duty to accommodate applies with equal force in
individual rights and pattern or practice cases. See Hohider, 574 F.3d at 184. Thus,

13

The Court recognizes that these are cases in which individual rights were being
adjudicated. However, their discussion of the statutory duty to accommodate would
appear to apply with equal force to pattern or practice claims.
40

the Court concludes that such cases are applicable to EEOC’s accom modation claim.
In light of the foregoing authority, the Court rejects any notion that EEOC bears
the burden of proving the absence of undue hardship. To so conclude, as noted above,
would be contrary to Congress’ explicit directive that the employer demonstrate undue
hardship. See § 2000e(j). As a result, the Court concludes that, in order to satisfy its
burden of showing that JBS engaged in an unlawful pattern or practice of religious
discrimination under Teamsters, EEOC must raise a genuine dispute of material fact
that JBS’s policy or practice failed to reasonably accommodate the religious practices of
its Muslim employees. See Thomas, 225 F.3d at 1155 n.6. Assuming EEOC is
successful, it must additionally produce some evidence that a policy or practice of
reasonable accommodation is possible, such as showing that its proposed
accommodations are reasonable on their face. See Barrett, 535 U.S. at 401-02. At
that point, EEOC will have satisfied its prima facie case. JBS may then avoid liability by
establishing that there is no genuine dispute of material fact as to whether reasonably
accommodating the religious practices of its Muslim employees in the manner EEOC
suggests would cause it undue hardship. See Ansonia, 479 U.S. at 68; Davoll, 194
F.3d at 1148.
1. Reasonableness of JBS’s Accommodations
An employer has met its obligation to accommodate religious practices “when it
demonstrates that it has offered a reasonable accommodation to the employee.”
Ansonia, 479 U.S. at 69. The Supreme Court has suggested that “bilateral cooperation
is appropriate in the search for an acceptable reconciliation of the needs of the

41

employee’s religion and the exigencies of the employer’s business.” Id. (quotations
omitted). However, the term “reasonable accommodation” does not lend itself to bright
line rules; rather, “[e]ach case necessarily depends upon its own facts and
circumstances, and in a sense every case boils down to a determination as to whether
the employer has acted reasonably.” United States v. City of Albuquerque, 545 F.2d
110, 114 (10th Cir. 1976); see also Ansonia, 479 U.S. at 69; see, e.g., City of
Albuquerque, 545 F.2d at 114 (holding that employer sufficiently accommodated
employee whose religious beliefs prohibited him from working Saturdays when it was
amenable to efforts employee could have made to swap shifts with other employees);
Thomas, 225 F.3d at 1156 (“[employer] approved all voluntary schedule swaps that
Thomas was able to arrange, and imposed no restrictions . . . on Thomas’s ability to
attempt to arrange further voluntary schedule swaps with other employees”). But see
Smith v. Pyro Min. Co., 827 F.2d 1081, 1088 (6th Cir. 1987) (holding that employer
encouraging employee to swap shifts did not offer a reasonable accommodation where
employee had a sincere religious belief preventing him from working on Sunday and
from asking someone to work Sundays for him). As a result, “questions of
reasonableness are [ordinarily] best left to the fact finder.” EEOC v. Univ. Mfg. Corp.,
914 F.2d 71, 73 (5th Cir. 1990).
The Supreme Court in Ansonia suggested that, although Title VII does not
“impose a duty on the employer to accommodate at all costs,” “eliminat[ing] the conflict
between employment requirements and religious practices” is sufficient to satisfy an
employer’s obligations. See Ansonia, 479 U.S. at 70. However, circuits differ on

42

whether an accommodation must eliminate any religious conflict in order to be
considered reasonable. The Second, Sixth, Seventh, and Ninth Circuits favor a strict
approach, holding that an employer’s offered accommodation cannot be considered
reasonable unless it “eliminate[s] the conflict between the employment requirement and
the religious practice.” See EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1576 (7th
Cir. 1996); see also Cosme v. Henderson, 287 F.3d 152, 159 (2d Cir. 2002); Cooper v.
Oak Rubber Co., 15 F.3d 1375, 1378 (6th Cir. 1994); EEOC v. Townley Eng’g & Mfg.
Co., 859 F.2d 610, 615 (9th Cir. 1988). The Tenth Circuit has acknowledged that some
circuits interpret Ansonia as holding that “a reasonable accommodation is one that
eliminates the employee’s conflict between his religious practices and work
requirements,” but does not appear to have decided whether to adopt such an
approach. Lee v. ABF Freight Sys., Inc., 22 F.3d 1019, 1023 n.4 (10th Cir. 1994). T he
Eighth and Fourth Circuits favor a less strict approach, noting that, although the
elimination of any religious conflict is sufficient to render an accommodation reasonable
as a matter of law, total elimination of religious conflict is not necessary in order for an
accommodation to be considered reasonable. Sturgill v. United Parcel Serv., Inc., 512
F.3d 1024, 1031 (8th Cir. 2008) (“Ansonia did not hold, indeed did not suggest, that an
accommodation, to be reasonable as a matter of law, must eliminate any religious
conflict”); see also EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307, 313 (4th Cir.
2008) (rejecting argument that accommodation must eliminate conflict between
religious practice and work requirement in part because, “[if] Congress had wanted to
require employers to provide complete accommodation absent undue hardship, it could

43

easily have done so”). The Eighth Circuit reasoned that a rule mandating that
employees be given their preferred accommodation is “inconsistent with the intended
purpose of Title VII’s reasonable accommodation provision, to foster ‘bilateral
cooperation’ in resolving an employee’s religion-work conflict.” Sturgill, 512 F.3d at
1031 (quoting Ansonia, 479 U.S. at 69). The parties favor the approach of the Eighth
and Fourth Circuits, see Docket No. 330 at 35 (citing Sturgill); Docket No. 349 at 50
(“The reasonableness of an accommodation is measured under the totality of the
circumstances, whereby a total elimination of religious conflict, while preferable, may
not always be possible.” (citing Sturgill, 512 F.3d at 1030)), and, given the lack of Tenth
Circuit authority to the contrary, the Court will follow the parties’ preference. Cf. Smith
v. Midland Brake, Inc., a Div. of Echlin, Inc., 180 F.3d 1154, 1177 (10th Cir. 1999)
(noting that plaintiff is not entitled to the accommodation of his or her choice, but only to
a reasonable accommodation). As a result, when evaluating the reasonableness of
JBS’s accommodations, the Court must consider the totality of the circumstances,
recognizing that reasonableness “might, or might not, require elimination of a particular,
fact-specific conflict.” See Sturgill, 512 F.3d at 1030.
JBS asserts that Muslim employees’ religious beliefs were accommodated
because they were permitted to pray before each shift, during regular breaks, and after
each shift. Docket No. 330 at 35. JBS admits that, although these prayer opportunities
are not perfect, they “occur reasonably close to Islamic prayer times.” Id. However,
whether the prayer opportunities JBS provided are sufficiently close to Islamic prayer
times so as to amount to a reasonable accommodation is a question best left to the fact

44

finder and JBS fails to persuade the Court otherwise. First, JBS argues that Muslim
employees’ beliefs regarding appropriate prayer times vary, such that allowing them to
pray during scheduled breaks and/or before and after their shifts is the only reasonable
accommodation. Id. at 36. EEOC responds that all Muslim employees agree that
Maghrib prayer must be said after sunset, which eliminates the utility of the 6:00 p.m.
rest break. Docket No. 349 at 51. EEOC next argues that Muslim employees’
acceptable prayer windows generally vary by no more than 15 minutes and, even in
those cases where an employee’s acceptable prayer window is 40 minutes, the 9:00
p.m. meal break took place anywhere from 90 minutes to two hours after sunset during
Ramadan 2008, creating a conflict for all those Muslim employees wishing to pray. Id.
(citing Docket No. 330-1 at 3-4). JBS rebuts such arguments by contending that
allowing employees to pray during regular breaks and shift changes is the only “nonburdensome accommodation,” which is an argument more appropriately directed at
EEOC’s proposed accommodations and, moreover, does not eliminate any genuine
dispute as to the reasonableness of JBS’s accommodations. See Docket No. 360 at
19.
Second, JBS argues that, in 2008, in an effort to accommodate Muslim
employees’ religious beliefs, it offered Muslim employees the option to transfer to the A
shift. Docket No. 330 at 35. EEOC asserts that transf erring Muslim employees to the A
shift would have created a conflict with the CBA. Resp. to DSF ¶ 103. Mr. Schult
testified that transfer to the A shift was typically based on seniority and that, if large
numbers of Muslim employees wished to move to the day shift, the union would need to
approve such a change. D. Schult Dep., Docket No. 349-99 at 10, p. 123:4-25. T he
45

Court is not convinced, as EEOC appears to assert, that a seniority system renders this
accommodation unreasonable. See Smith, 180 F.3d at 1170 (noting that, if other
employees have contractual or seniority right to a vacant position, it is not considered
vacant for purposes of accommodating disabled employee). However, even if all
Muslim employees were given the opportunity to transfer to the A shift, the Court cannot
conclude, as a matter of law, that praying before, during regular breaks, and after the A
shift would constitute a reasonable accommodation with respect to the Fajr, Dhuhr, and
Asr prayers.14
Third, JBS argues that it accommodated Muslim employees’ religious beliefs by
allowing Muslim employees to break their fast during Ramadan by drinking from water
fountains near the production line. DSF ¶ 102. JBS arg ues this accommodation was
reasonable because Muslim employees required only a drink of water to break their
fasts during Ramadan and access to water fountains was readily available. Docket No.
330 at 47-48. EEOC responds that the m ajority of Muslim employees do not believe
that drinking water is sufficient to break their fast. Resp. to DSF ¶ 102. Abdinuur Haji
Aaden testified that some Muslims “have a couple of dates, some people bring
Sambusa and drink water just to break their fast.” A. Aaden Dep., Docket No. 349-45
at 4, p. 46:7-12; see also K. Abdullahi Dep., Docket No. 349-52 at 5, p. 92:7-22 (“All w e
14

JBS’s reliance on the court’s order in Aware Daud et al. v. Gold’n Plump
Poultry, Inc., No. 06-4013 (JJG) (D. Minn. March, 31, 2009), is misplaced. The court in
that case was evaluating objections to the fairness of proposed accommodations
agreed to as part of a class action settlement, Docket No. 330-108 at 20, which is of
little relevance where, as here, the issue is whether JBS’s accommodations are
reasonable as a matter of law. Moreover, the reasonableness of an accommodation is
a fact specific inquiry and JBS makes no attempt to establish that the accommodations
in that case arose under circumstances analogous to this case.
46

wanted was to eat dates and to drink some water but we were refused to do that.”); U.
Muhumad Dep., Docket No. 349-91 at 4-5, pp. 99:20-100-13 (discussing breaking fast
with water and dates). As a result, the Court cannot conclude as a m atter of law that
allowing Muslim employees to break their fasts with water alone was a reasonable
accommodation. Moreover, because food was not allowed on the production floor,
Resp. to DSF ¶ 102, Muslim employees who could not break their fast with water would
have been required to take a break from the production floor, which, as discussed
above, the Court cannot conclude that JBS reasonably accommodated as a matter of
law.15
The reasonableness of an accommodation can, as JBS points out, be decided in
some cases as a matter of law. For the reasons discussed above, this is not such a
case. This aspect of JBS’s motion for summary judgment is therefore denied.16
2. EEOC’s Proposed Accommodations
JBS argues that “failure to implement the proposed accommodation is only
unlawful if (1) the proposed accommodation is, in fact, reasonable, and (2) the
accommodation can be implemented without undue hardship.” Docket No. 330 at 34
(citing Abercrombie, 731 F.3d at 1122).

15

Additionally, there appears to be a dispute of fact as to whether Muslim
employees were denied access to water on the production floor during Ramadan 2008
and after. Resp. to DSF ¶ 102; Docket No. 349 at 62. Althoug h JBS suggests that the
incidents upon which EEOC relies are isolated and insufficient to establish a systemic
policy or practice of denying Muslim employees water, the Court cannot so conclude as
a matter of law.
16

EEOC does not allege a pattern or practice of denying Muslim employees a
place to pray and does not seek a corresponding accommodation to that effect. Docket
No. 349 at 63 n.5. Thus, JBS’s arguments on this issue are moot.
47

a. Reasonableness
As discussed above, when proposing an accommodation, a plaintiff must “show
not only that the proposed accommodation would enable her to perform the essential
functions of her job, but also that, at least on the f ace of things, it is feasible for the
employer under the circumstances.” Reed, 244 F.3d at 259. As the Supreme Court
has indicated, “in ordinary English the word ‘reasonable’ does not mean ‘effective.’ It is
the word ‘accommodation,’ not the word ‘reasonable,’ that conveys the need for
effectiveness.” Barnett, 535 U.S. at 400. Thus, “considering an accommodation’s
impact on both the employer and coworkers, for example, is appropriate when
determining [a proposed accommodation’s] reasonableness.” Firestone Fibers, 515
F.3d at 314.
JBS argues that the regular break accommodation is unreasonable because, in
order to coordinate meal and rest breaks with sundown, it would have to either
schedule breaks in violation of the CBA or incur the cost of providing employees with a
third break. Docket No. 330 at 38. EEOC responds that the reg ular break
accommodation seeks only to change the timing of the meal break within the contours
of the CBA and that EEOC and Muslim employees have never sought to have JBS
provide a third break. Docket No. 349 at 53. JBS’s argument is therefore moot.
The remainder of JBS’s arguments on this issue challenge the effectiveness or
lack thereof of EEOC’s proposed accommodations, which, strictly speaking, does not
implicate reasonableness. See Barnett, 535 U.S. at 400. To the extent JBS challenges
the effectiveness of EEOC’s proposed accommodations, genuine disputes of material

48

fact exist to preclude summary judgment.
First, the Court understands JBS to argue that EEOC’s proposed
accommodations are insufficient because they are not as effective at accommodating
Muslim employees’ religious practices as those accommodations JBS has already put
in place. Docket No. 330 at 36. JBS later appears to chang e course, arguing that
EEOC’s claim that its proposed accommodations are “more” reasonable than JBS’s
existing policy is incorrect because “[t]he test is not whether there is a ‘more’
reasonable accommodation, defendant need only provide a reasonable
accommodation.” Docket No. 360 at 19. In any event, none of the cases JBS cites
support the proposition that EEOC’s proposed accom modations are not reasonable
accommodations as a matter of law if they are not more effective than the
accommodations JBS has in place. Moreover, there are outstanding questions of fact
as to whether JBS’s existing accommodations are, as JBS claims, more effective than
EEOC’s proposed accommodations. JBS’s argument on this issue is therefore without
merit.
To the extent JBS argues that the regular break accommodation would be
ineffective because, for example, the regular break accommodation would result in the
meal break falling within the Maghrib prayer window for only 10 calendar days during
Ramadan 2008, Docket No. 360 at 20, JBS’s arguments are inconsistent with its
position that its own accommodations need not eliminate all conflict between religious
beliefs and employment obligations. See Sturgill, 512 F.3d at 1031. Moreover, EEOC
admits that it is not seeking perfect accommodation and points out that there are only a
few weeks per year where moving either the meal break or rest break within the
49

confines of the CBA would not accommodate Maghrib prayer windows. Docket No. 349
at 53.
JBS argues that the unscheduled break accommodation would be ineffective
because allowing Muslim employees to relieve one another for unscheduled breaks
would result in some Muslim employees missing their required prayer times. Docket
No. 330 at 37. JBS’s argument rests on the assumption that Muslim employees
relieving one another on the line is the only measure by which the unscheduled break
accommodation could be implemented, an assumption which EEOC disputes. See,
e.g., Resp. to DSF ¶ 86. Moreover, EEOC admits that it is not seeking perfect
accommodation for every Muslim employee. Docket No. 349 at 54. Imam Ammar
Amonette states that he discussed with the Muslim employee committee the prospect
of alternating prayers, such that Muslim employees would take short, staggered breaks
such that eventually “all would get to break their fast and pray, though not all would get
to do that exactly on time every day during Ramadan.” Docket No. 349-28 at 1, ¶ 7.
Imam Amonette states that such an arrangement would allow Muslim employees to
meet their religious needs. Id. at 2, ¶ 8. Thus, the Court cannot conclude that the
unscheduled break accommodation is ineffective as a matter of law.
JBS raises no other arguments attacking the facial reasonableness of EEOC’s
proposed accommodations. As discussed in greater detail below, genuine disputes of
material fact exist as to the feasibility of EEOC’s proposed accommodations, which
overlap with this reasonableness inquiry. See Firestone Fibers, 515 F.3d at 314. Thus,
the Court concludes that EEOC has raised a genuine dispute of material fact as to the
effectiveness and facial reasonableness of its proposed accommodations.
50

b. Undue Hardship
Whether a particular accommodation results in an undue hardship to the
employer is a determination to be made within “the particular factual context of each
case.” Toledo, 892 F.2d at 1490. Nonetheless, “[t]o require an employer ‘to bear more
than a de minimis cost in order to [accommodate an employee’s religious beliefs] is an
undue hardship.’” Lee, 22 F.3d at 1023 (quoting Hardison, 432 U.S. at 84). “Any cost
in efficiency or wage expenditure that is more than de minimis constitutes undue
hardship.” Id. (quotations omitted). “The cost of hiring an additional worker or the loss
of production that results from not replacing a worker who is unavailable due to a
religious conflict can amount to undue hardship.” Id.; see also Beadle v. City of Tampa,
42 F.3d 633, 636 (11th Cir. 1995) (noting that de minimis costs can entail “not only
monetary concerns, but also the employer’s burden in conducting its business”). An
accommodation may also create an undue hardship “if it causes more than a de
minimis impact on co-workers.” Harrell v. Donahue, 638 F.3d 975, 980 (8th Cir. 2011).
For example, an employer need not “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.” Hardison, 432 U.S. at 81. In either case, any
asserted hardship “must be ‘real’ rather than ‘speculative’” and cannot therefore be
proven by assumptions or “opinions based on hypothetical facts.” Brown v. Polk Cnty.,
Iowa, 61 F.3d 650, 655 (8th Cir. 1995) (collecting cases); see also Toledo, 892 F.2d
1490 (“‘The employer is on stronger ground when he has attempted various methods of
accommodation and can point to hardships that actually resulted.’” (quoting Draper v.

51

U.S. Pipe & Foundry Co., 527 F.2d 515, 520 (6th Cir. 1975))).
i. Regular Break Accommodation
JBS argues that moving a regular break to coincide with sunset presents several
problems. First, JBS argues that, because it coordinates break times with grade
changes, it cannot also coordinate break times with Muslim prayer times. Docket No.
330 at 39-40; see also DSF ¶¶ 69-70. JBS estimates that, if grade changes do not
coincide with break times, it would suffer approximately $595,920 in losses per plant
per year. DSF ¶ 72. However, the meal break generally occurs at approximately 9:15
p.m., which according to plant management is the result of planning the production
schedule so that the regular breaks coincide with grade changes. See C. Fritche Dep.,
Docket No. 349-69 at 13-14, p. 81:9-82:18. 17 Thus, a reasonable fact finder could
conclude that, if JBS is able to regularly coordinate grade changes with a 9:15 p.m.
break, then, with 10-20 grade changes in a shift, a break at approximately 7:30 p.m.
could be regularly coordinated with grade changes as well. Although disputed, there is
evidence in the record suggesting that, when JBS moved the meal break to 7:30 p.m.
for two days in September 2008, it suffered no appreciable decrease in production.
See Gould Dep., Docket No. 349-73 at 15, p. 122:1-16 (“Q And then on W ednesday
the break happened at 7:30, right? A Yes. Q And there were no particular problems
with that; is that right? A Not that I recall today. Q And you don’t recall getting any
complaints about it either at that time, do you? A Not sitting here that I can
17

JBS argues that Mr. Fritche’s testimony could be interpreted as rejecting the
suggestion that grade changes, break times, and prayer times can be coordinated.
Docket No. 360 at 25. However, the Court finds that JBS’s interpretation of Mr.
Fritche’s testimony is not the only reasonable one.
52

remember.”). Also, to the extent JBS argues that it cannot schedule breaks at precise
times, EEOC concedes that it is not requesting that JBS schedule regular breaks at
precise prayer times; rather, the Muslim employee committee agreed on a 7:30 p.m.
regular break for Ramadan 2008. JBS also contends that, if breaks are required at
Muslim prayer times, it would lose flexibility to coordinate a break with an equipment
malfunction, DSF ¶ 73; however, equipment malfunctions that shut down the entire line
resulting in a mass break are rare, B. Danley Dep., Docket No. 349-64 at 18, p. 103:1113, so there is some question as to how often such breaks can be coordinated with a
grade change or a regular break. Moreover, EEOC concedes that, in the rare event of
a breakdown occurring within an appropriate window under the CBA, the regular break
accommodation would not require JBS to schedule the break within the Maghrib prayer
window. Docket No. 349 at 56.
Second, JBS argues that it would be an undue hardship to grant mass breaks,
rather than staggered breaks as it normally does. Docket No. 330 at 40-41. EEOC
responds that it is not requesting a mass break. Docket No. 349 at 56. JBS’s
argument is therefore moot.
Third, JBS argues that moving regular breaks in such a manner would mean that
break times would change every day and, on some days, require JBS to provide a third
break pursuant to the CBA or to schedule a break in violation of the CBA. Docket No.
330 at 40-41; DSF ¶¶ 67-68. EEOC responds that, because the Mag hrib prayer takes
approximately five minutes, the timing of regular breaks would not have to change
every day. Resp. to DSF ¶ 67. EEOC contends that it has nev er requested a third
regular break, but that in some months prayer needs could be met by a combination of
53

the regular break accommodation and unscheduled break accommodation. Resp. to
DSF ¶ 68. EEOC further argues that it is not requesting that JBS violate the CBA, but
rather that the regular breaks be moved within the confines of the CBA to allow Muslim
employees to pray at or near the Maghrib prayer window. Docket No. 349 at 56. To
the extent that EEOC’s response has not rendered JBS’s argument on this issue moot,
EEOC has identified a genuine dispute of material fact.
Fourth, JBS takes the position that the regular break accommodation would
burden non-Muslim co-workers because an earlier meal break would cause employees
to be more tired and hungry by the end of the shift, because many employees prefer a
later break, and because moving a break time earlier upsets the medication schedule of
some employees. Docket No. 330 at 41; DSF ¶¶ 74-76. JBS’s argument is somewhat
undercut by its earlier argument that it cannot move the meal break to accommodate
Muslim prayer times because it requires flexibility to accommodate its own production
needs. Moreover, Mr. Fritche’s testimony could be interpreted as stating that break
times occurring within the parameters set forth in the CBA do not have a negative effect
on employees. See C. Fritche Dep., Docket No. 349-69 at 16, p. 86:7-21. EEOC also
asserts that non-Muslim co-workers’ discontent could be at least partially motivated by
an erroneous belief that an earlier meal break is a gesture of favoritism to Muslim
employees, rather than an effort to comply with JBS’s Title VII obligations. See PSF
¶¶ 51-54; see also Brown, 61 F.3d at 655 (“Undue hardship requires more than proof of
some fellow-worker’s grumbling.” (quotations omitted)).
For the foregoing reasons, the Court cannot conclude as a matter of law that the
regular break accommodation would result in undue hardship to JBS or non-Muslim co54

workers.
ii. Unscheduled Break Accommodation
JBS contends that permitting Muslim employees to leave the line to pray during
unscheduled breaks would cause several adverse effects. However, JBS’s arguments
suffer under the assumption that the unscheduled break accommodation can be
enacted through only a single measure, such as by requiring employees on the line to
substitute for praying employees or by using over-crewing, leads, and supervisors to fill
in for them. For example, if the accommodation were to be enacted solely by forcing
employees on the line to have to work harder and faster to make up for employees on
unscheduled prayer breaks, it seems likely that undue hardship would result. However,
JBS does not account for or respond to EEOC’s contention that the unscheduled break
accommodation can be enacted through a combination of several measures, including
use of over-crewing, leads, supervisors, or cross-trained employees to fill in for
employees on unscheduled prayer breaks, placement of meat in “combos” or cardboard
boxes until the employee returns from a prayer break (on lines where such a practice is
appropriate), coordination of unscheduled breaks between supervisors and Muslim
employees, coordination of unscheduled breaks between Muslim employees based
upon the flexibility of their respective prayer windows, and making efforts not to
concentrate Muslim employees on the same lines. See, e.g., PSF ¶ 72; Resp. to DSF ¶
86; L. Rivera Dep., Docket No. 349-95 at 18-19, pp. 164:3-165:19; Docket No. 349-28
at 1-2, ¶¶ 7-8. (suggesting that, although alternating unscheduled prayer breaks
coordinated among Muslim employees would not allow all employees to pray and break
their fast on time every day during Ramadan, such a practice would satisfy their
55

religious obligations). EEOC also suggests that burdens associated with enacting this
accommodation could be reduced through better training and communication.
Supervisors can work with employees ahead of time to manage unscheduled breaks
and doing so sometimes makes unscheduled breaks go smoother. PSF ¶ 73; Resp. to
PSF ¶ 73. However, EEOC contends that JBS has failed to train supervisors on the
unscheduled break policy, on how to effectively cross train employees, on working with
employees ahead of time to manage unscheduled breaks, and on the Muslim religion
generally. PSF ¶¶ 76-79.
Although JBS contends that no genuine dispute of material fact exists as to the
undue hardship in using a single measure to enact this accommodation, JBS provides
no persuasive basis to conclude that the same is true when multiple measures are
employed collectively. At trial EEOC will bear the burden of proving that enacting this
accommodation by a combination of measures is possible. However, JBS’s failure to
address EEOC’s theory, by itself, provides a basis for denying summary judgment on
the issue of undue hardship created by the unscheduled break accommodation.
Nonetheless, the Court will address JBS’s individual arguments as they relate to
particular measures.
With respect to the burden the unscheduled break accom modation places on
JBS, JBS first argues that if hundreds of Muslim employees left the line within a short
window of time, JBS would be forced to reduce chain speed. Docket No. 330 at 43.
Mr. Anderson testified that giving employees unscheduled breaks to pray has not
resulted in any production problems. See R. Anderson Dep., Docket No. 349-61 at 10,

56

p. 110:2-111:3. 18 EEOC asserts that, during Ramadan 2009 and 2010, JBS allowed
prayer during unscheduled breaks without ill effects or undue hardship. 19 JBS’s
Director of Human Resources Robert Daubenspeck testified that, when such a policy
was enacted in 2009, supervisors he spoke with were comfortable that the policy would
not cause disruptions to production. R. Daubenspeck Dep., Docket No. 349-65 at 7,
pp. 53:18-54:25. Supervisors reported only isolated disruptions and Mr. Daubenspeck
was not aware of any burden this placed upon JBS. Id. Supervisor Lisa Rivera testified
that, during Ramadan 2010, half of her line consisted of Muslim employees and, due at
least in part to increases in cross training, she reported no problems getting people off
the line for sundown prayers. L. Rivera Dep., Docket No. 349-95 at 18-19, pp. 164:3165:19.; see also R. Anderson Dep., Docket No. 349-61 at 21, p. 167:5-23 (recalling no

18

Although it is not clear what time period Mr. Anderson’s testimony refers to,
JBS does not argue that the cited testimony is irrelevant or inadmissable for that
reason.
19

The Court recognizes that the fact that an employer has previously provided a
requested accommodation does not obligate it “to continue providing such an
accommodation.” See Phelps v. Optima Health, Inc., 251 F.3d 21, 26 (1st Cir. 2001);
Rehrs v. Iams Co., 486 F.3d 353, 358 (8th Cir. 2007) (“[a]n employer . . . voluntarily
assuming the limited burden associated with a temporary accommodation [does not]
thereby acknowledge that the burden associated with a permanent accommodation
would not be unduly onerous” (quotations omitted)). To so obligate an employer would
be to punish it for doing more than the law requires. See Basith v. Cook Cnty., 241
F.3d 919, 930 (7th Cir. 2001); Phelps, 251 F.3d at 26. Thus, the Court does not
consider JBS’s conduct during Ramadan 2009 and 2010 to be a concession on the part
of JBS that the unscheduled break accommodation would not be unduly burdensome.
Nonetheless, it is not clear that evidence from the time period during which a temporary
accommodation was in place is rendered inadmissable and the Court does not
understand JBS to so argue. See Docket No. 360 at 28 n.11. Thus, the Court will
consider evidence from Ramadan 2009 and 2010 in determining whether the proposed
accommodation would cause undue hardship, but will not consider JBS to have
conceded that such an accommodation imposes no undue hardship.
57

problems spelling Muslim employees off the line during Ramadan 2009 and 2010). 20
Moreover, Mr. Daubenspeck testified that the change in policy did not amount to giving
Muslim employees a benefit that other employees were not getting. R. Daubenspeck
Dep., Docket No. 349-65 at 7, p. 53:11-14. JBS f ails to establish the absence of a
genuine dispute of material fact as to this issue.
Second, JBS argues that when employees leave the line for unscheduled
breaks, other employees must work harder and faster to do the work of absent
employees, resulting in an increased risk of injuries and a decrease in product quality.
Docket No. 330 at 43-44; DSF ¶¶ 77-79. In som e positions, employees on the line
cannot make up for employees on unscheduled breaks such that another person has to
fill in. DSF ¶ 84. Mr. Anderson testified that allowing Muslim employees to take prayer
breaks has not affected production, product quality, or the frequency of injuries in areas
that he supervises. R. Anderson Dep., Docket No. 349-61 at 10, p. 110:2-111:3.
Similarly, Quality Assurance Supervisor Blanca Mejia-Madaleno, who is responsible for
food and employee safety, testified as follows: “Q Did it cause you any problems
having people leave the line to go pray? A No. Q . . . were you aware of any
additional safety concerns due to employees leaving the line to pray? A No.” B. MejiaMadaleno Dep., Docket No. 349-85 at 12, p. 160:2-8. 21 Mr. Anderson also testified that,

20

The Court need not consider the fact that, since 2011, JBS has adopted a
policy similar to the unscheduled break accommodation in resolving this motion. As a
result, the Court takes no position on whether it is appropriate to consider JBS’s current
policy regarding unscheduled breaks. See Phelps, 251 F.3d at 26.
21

Although it is not clear what time period Ms. Mejia-Madaleno’s testimony refers
to, JBS does not argue that the cited testimony is irrelevant or otherwise inadmissible
for that reason.
58

when unscheduled breaks occur, other employees, leads, supervisors, and cross
trained employees can step in. R. Anderson Dep., Docket No. 349-61 at 13-14, pp.
118:14-119:19. Moreover, in some, but not all instances, meat can be set aside in
“combos” or cardboard boxes until the employee returns, see id., such that not every
employee who takes an unscheduled break need be replaced by another employee.
See PSF ¶ 71. Although there is evidence that food safety issues may arise if too
many employees take unscheduled breaks at one time, B. Mejia-Madaleno Dep.,
Docket No. 349-85 at 12-13, pp. 160:11-161:10, there is a g enuine dispute of material
fact as to whether the unscheduled break accommodation would create an undue
hardship in the form of increased injuries and decreased product quality. 22
JBS argues that, because the B shift has a high percentage of Muslim
employees, it would not be feasible to accommodate unscheduled prayer breaks for all
of them. Docket No. 330 at 44-46 For example, JBS argues that, because the B shift
in 2008 had 433 Muslim employees and only 56 leads and supervisors, if leads and
supervisors were required to fill in for Muslim employees on two unscheduled prayer
breaks per shift, leads and supervisors would be filling in for 50 percent of their shift.
DSF ¶¶ 90-91. JBS asserts that this would violate the CBA, which prevents supervisors
from routinely performing bargaining unit work, take supervisors away from their normal

22

There also appears to be a dispute of fact as to whether, if Muslim employees
take unscheduled breaks for prayer, more non-Muslim employees will ask for
unscheduled breaks, resulting in an undue hardship on JBS. Compare DSF ¶ 85, with
B. Danley Dep., Docket No. 349-64 at 32, 159:9-13 (“Q . . . since em ployees have
been requesting unscheduled breaks to leave to go pray, has there been an increase in
the number of other employees taking unscheduled breaks? A Not that I’m aware of.”).
59

duties, and result in supervisors performing production line work at their supervisor
wage rate. DSF ¶¶ 88, 89, 91. As discussed above, JBS’s argument is premised on
the incorrect assumption that supervisors and leads would be the exclusive method by
which Muslim employees’ prayer breaks could be accommodated. But see L. Rivera
Dep., Docket No. 349-95 at 18-19, pp. 164:3-165:19. EEOC has suf ficiently raised a
dispute of fact as to the remaining aspects of this argument. See Resp. to DSF ¶¶ 8891.
JBS argues that it would be an undue hardship to avoid concentrating Muslim
employees on the same line because a significant number of employees would need to
be retrained, taking several weeks, costing an estimated $2 million, and causing
employees temporarily assigned to work in a different position to be assigned a higher
pay rate, a difference in wage rates it claims to have no system in place to track.
Docket No. 330 at 46; DSF ¶¶ 92-100. However, cross training is a practice already in
place at the Greeley plant and is already relied upon to maintain chain speed whenever
a particular line or table is short of personnel on a particular day. See D. Jordan Dep.,
Docket No. 349-82 at 4-5, pp. 36:6-37:22. T here is also a dispute of fact as to whether
a significant number of employees are already cross trained, see also L. Rivera Dep.,
Docket No. 349-95 at 2-3, 36:13-37:7 (explaining that most of the people on the “arm
line” were cross trained to do each of the jobs on the “arm line”), and what the cost of
such training would be. See Resp. to DSF ¶ 94. Moreover, it is not clear that the CBA
requires an increase in pay when cross trained employees are filling in for employees
on unscheduled breaks. See Resp. to DSF ¶ 97.

60

For the foregoing reasons, a genuine dispute of material fact exists on the issue
of whether the unscheduled break accommodation would impose a greater than de
minimis burden on JBS.
The Court turns to the question of whether the unscheduled break
accommodation would impose a greater than de minimis burden on non-Muslim coworkers. Although JBS argues that employees doing the work of absent employees
must work harder and faster, which increases the risk of injuries, Docket No. 330 at 47;
DSF ¶¶ 78, 82, there is evidence in the record to the contrary and employees are
already doing so for those employees who take unscheduled breaks to go to the
restroom. Moreover, there is evidence that this is the case only if the employee is not
replaced by an over-crewed employee, supervisor, lead, or cross trained employee.
See Resp. to DSF ¶ 82. As a result, the Court cannot conclude as a m atter of law that
the unscheduled break accommodation imposes an undue hardship for that reason.
Cf. George v. Home Depot Inc., 2002 WL 31319124, at *4 (5th Cir. Sept. 27, 2002)
(unpublished) (noting that Fifth Circuit has found undue hardship when religious
accommodation “requires other employees to take on additional duties or change their
schedules”).
To the extent JBS argues that employees have complained about safety when
employees leave the line, DSF ¶ 83, there is evidence that no injury issues have
occurred when covering for Muslim employees during unscheduled prayer breaks. See
R. Anderson Dep., Docket No. 349-61 at 10, p. 110:2-111:3. JBS contends that, w hen
employees must do the work of employees who take unscheduled breaks, morale
issues result. DSF ¶ 81. However, the deposition testimony of Greeley plant
61

employees and supervisors creates a genuine dispute of material fact on this issue.
See, e.g., R. Anderson Dep., Docket No. 349-61 at 10, p. 110:2-111:3. For the abov estated reasons, a genuine dispute of material fact exists as to whether the unscheduled
break accommodation creates an undue hardship on non-Mu slim co-workers.
JBS’s motion for summary judgment on the issue of undue hardship is denied.
D. Retaliation and Discrimination Claims
JBS argues that, because EEOC’s retaliation and discrimination claims are
based upon the “one-time decision to suspend and terminate, en masse, a group of
Somali Muslim employees” during Ramadan 2008, JBS’s conduct does not constitute a
pattern or practice of unlawful discrimination. Docket No. 330 at 49-50.
The parties have two principal disagreements regarding these claims. First, the
parties disagree as to the scope of EEOC’s Phase I retaliation and discrimination
claims. EEOC argues that its retaliation and discrimination claims are not limited to the
events of Ramadan 2008. Docket No. 349 at 63-64. EEOC is correct that its com plaint
alleges that JBS has engaged in and continues to engage in discriminatory and
retaliatory conduct. See Docket No. 1 at 7-8, 9, 11. However, pursuant to the Court’s
bifurcation order, EEOC’s retaliation and discrimination claims are limited in Phase I
“insofar as they are based on the Ramadan 2008 events.” Docket No. 116 at 15.
Although EEOC is not precluded from proceeding on the whole of its retaliation and
discrimination claims in Phase II, EEOC’s claims in Phase I are limited by the
bifurcation order.23
23

In attempting to rely on evidence of conduct occurring outside of Ramadan
2008, EEOC seizes upon the portion of the bifurcation order which states, “However,
62

The question then becomes what evidence can be properly considered in
support of EEOC’s Phase I retaliation and discrimination claims. JBS argues that the
bifurcation order limited such claims “to the suspension and termination decision
resulting from the work stoppage on September 5, 2008; the Bifurcation Order did not
permit the EEOC to base its Phase I claims on all alleged acts of discrimination or
retaliation that occurred during Ramadan 2008.” Docket No. 360 at 35. The Court
disagrees with JBS’s interpretation of the bifurcation order. The Court ruled that
“instances of retaliation, discipline, or discharge unrelated to the Ramadan 2008 events
are likely to present issue that are too individualized for efficient bifurcation,” Docket No.
116 at 15, but the Court did not limit EEOC’s Phase I claims to only those events taking
place between September 5 and September 10, 2008. Although it is true that EEOC’s
complaint describes events taking placing between September 5 and September 10,
the complaint also alleges that Tuesday, September 2, 2008 was the first work day of
the 2008 Ramadan holiday, Docket No. 1 at 5-7, and EEOC’s complaint does not
foreclose the possibility that additional acts of retaliation and discrimination related to
the mass suspensions and terminations occurred after September 10, 2008 but before
the end of Ramadan 2008. Thus, EEOC’s Phase I retaliation and discrimination claims
are limited to acts of discrimination or retaliation occurring between September 1 and

the Court may reconsider what issues are appropriately decided during Phase I related
to this claim as the claim’s scope is clarified through discovery.” Docket No. 116 at 15.
Neither side has filed a motion requesting the Court to reconsider the scope of plaintiff’s
Phase I retaliation and discrimination claims. Moreover, EEOC admits that, as a result
of the bifurcation order, it did not have access to full discovery regarding JBS’s
discriminatory and retaliatory conduct before and after Ramadan 2008. Thus, no basis
exists to expand the scope of EEOC’s Phase I retaliation and discrimination claims to
include conduct occurring outside of Ramadan 2008.
63

September 30, 2008 to the extent such acts are related to the September 10 mass
termination of Muslim employees. The Court’s consideration of evidence in resolving
this aspect of JBS’s motion is limited accordingly.24
The second dispute with respect to this claim is whether JBS’s conduct during
Ramadan 2008 can be characterized as a “one-time event,” insufficient to establish a
pattern or practice of discrimination. See Docket No. 349 at 68. In support of its
argument that the suspension and termination of Muslim employees was a one-time,
mass action that cannot support a pattern or practice claim , JBS relies upon Sperling v.
Hoffmann-La Roche, Inc., 924 F. Supp. 1346 (D.N.J. 1996), Oinonen v. TRX, Inc., 2010
WL 396112 (N.D. Tex. Feb. 3, 2010), and the Nebraska court’s order on JBS’s m otion
for summary judgment. Docket No. 330-105 at 37-41.
In Sperling, an employer discharged or demoted 1,100 employees on a single
day as part of a reduction in force (“RIF”). 924 F. Supp. 1349. A class action was filed
and approximately 500 employees opted in as members of the putative class. Id. In
preparation for the RIF, the employer created a document containing criteria for line
managers to select employees for inclusion in the RIF. Id. Plaintiffs argued that,
because the employer knew that age bias existed and uncontrolled termination
decisions would result in a disproportionate termination of older employees, the criteria

24

JBS filed a motion requesting leave to challenge the admissibility of the
opinions of plaintiff’s expert witness, Dr. Mark McNulty. Docket No. 374. JBS argues
that, because EEOC relies in part on Dr. McNulty’s opinions in its response to the
motion for summary judgment, the Court should rule on any motion to exclude Dr.
McNulty’s opinions before ruling on the motion for summary judgment. Because the
Court does not consider Dr. McNulty’s opinions in resolving this motion, JBS’s argument
on this issue is moot.
64

granted line managers too much discretion to terminate employees based upon
conscious or unconscious age bias. Id. at 1360. The court rejected plaintiffs’ claim for
multiple reasons. First, because plaintiffs did not assert that unlawful discrimination
was the employer’s standard operating procedure, their allegations were more
appropriately characterized as a disparate impact claim. Id. at 1361-63. The court
reasoned that, if plaintiffs’ allegations were considered sufficient to sustain a pattern or
practice claim, “anytime a company gives managers discretion to make employment
decisions that company potentially engages in a pattern or practice of discrimination.”
Id. at 1363. Second, the court noted that the g uidelines were used only once and there
was no evidence indicating that they would be used in the future. Id. at 1364. As a
result, the Court concluded that, because the em ployer’s use of the guidelines was a
“one-shot event, there is no basis to award classwide prospective injunctive relief – the
main reason for bringing a pattern-or-practice claim.” Id.
In Oinonen, plaintiffs were terminated during a single layoff and brought a class
action claim alleging a pattern or practice of discrimination. 2010 WL 396112, at *1, *4.
The court dismissed plaintiffs’ class action claim, in part, because plaintiffs “provided
only statistics and conclusory allegations related to a single event, TRX’s 2008 layoff.
Such a ‘one-shot’ event cannot constitute a pattern or practice of discrimination.” Id.
(quoting Sperling).
In the Nebraska case, the court found Sperling and Oinonen persuasive and
rejected EEOC’s argument that the mass termination of 80 Muslims should be viewed
as 80 individual decisions to terminate Muslim employees. Docket No. 330-105 at 39.

65

The court further concluded that EEOC failed to demonstrate that the mass
terminations were “more than a single event.” Id. at 41.
Although EEOC disputes that the events of Ramadan 2008 should be
characterized as a one-time, en masse termination, EEOC relies on EEOC v. Sandia
Corp., 639 F.2d 600 (10th Cir. 1980), in support of its argument that a one-time layoff
event can give rise to a pattern or practice claim. In Sandia, the EEOC brought a
pattern or practice claim based upon an employer’s mass layoff and the Tenth Circuit
affirmed the trial court’s finding in favor of EEOC. 639 F.2d at 604. However, Sandia
did not specifically address the question of whether a one-time event can or cannot be
considered a pattern or practice. On the issue of whether the layoff was the result of a
discriminatory pattern or practice on the basis of age, EEOC presented statistical
evidence, management memoranda indicating the existence of stereotypes regarding
older employees, and testimony that the company was concerned with the increasing
age of its employees. Id. at 607-08. The trial court found that “individuals in the 52 to
64 age range were selected for layoff in a pattern which proves that Sandia has
engaged in discriminatory conduct.” Id. at 621. The Tenth Circuit held that the trial
court did not err in applying the Teamsters framework and that the trial court’s finding of
a discriminatory pattern or practice was supported by the evidence. Id. at 623.
Although Sandia sustained a pattern or practice claim based upon a mass layoff,
the decision appears to have been based in large part on potentially discriminatory
conduct and policies that occurred or were in place prior to the layoff. See Sandia, 639
F.2d at 607-08. As a result, Sandia is of limited persuasive value where, as here,

66

EEOC’s claims are limited to Ramadan 2008 and EEOC does not allege that JBS
adopted a declared or undeclared discriminatory policy that led to the discriminatory
conduct in this case. See Docket No. 330-105 at 39. 25 The Tenth Circuit does not
appear to have explicitly decided the question of whether a one-time mass layoff or
mass termination can, without allegations of pre-existing discriminatory policies, give
rise to a pattern or practice claim or whether mass employment actions should, as
EEOC urges, be viewed as multiple individual discriminatory decisions rather than a
single, isolated discriminatory decision. See Teamsters, 431 U.S. at 336. However, the
Court need not decide whether the Tenth Circuit is likely to agree with Sperling,
Oinonen, or the Nebraska court because the evidence in this case does not compel the
conclusion that the events of Ramadan 2008 were a “single event” and JBS does not
properly raise any other argument challenging EEOC’s retaliation and discrimination
claims. See Docket No. 330 at 49-50.
The focus of a pattern or practice claim is “on a pattern of discriminatory
decisionmaking.” Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 876
(1984). Here, there is sufficient evidence upon which to conclude that JBS made at
least six different discriminatory decisions between September 5 and September 10,
2008, which could lead a factfinder to conclude that discrimination was JBS’s standard
operating procedure during that time. First, on the evening of Friday, February 5, 2008,

25

Notably, Sperling distinguished Sandia, finding that EEOC provided evidence
(1) that Sandia took specific steps to remedy the average age of its workforce in the
decade prior to the layoff, (2) that age was a factor in Sandia’s promotion policy, and (3)
that, prior to the layoff, Sandia took steps to hire younger scientists. 924 F. Supp. at
1393-94.
67

Greeley plant management ordered Muslim employees to leave the plant, despite the
fact that Muslim employees were willing to return to work. PSF ¶ 94; Resp. to DSF
¶ 128. Second, that night, JBS made the decision to suspend those Muslim workers
who did not return to work on that day for Monday, September 8. PSF ¶ 97. The nonMuslim employees who engaged in an unauthorized work stoppage on Thursday,
September 4 were not disciplined, PSF ¶ 84; Resp. to PSF ¶ 84, and JBS elected not to
suspend Latino workers who left the plant on the evening of September 5. PSF ¶ 96.
Third, prior to its Monday, September 8 meeting with the Muslim employee committee,
JBS decided that Muslim employees suspended for Monday, September 8 would
instead be suspended indefinitely and communicated its decision to the committee
during the Monday, September 8 meeting. See PSF ¶ 99. Fourth, after that meeting,
but before the Tuesday, September 9 meeting, JBS decided that suspended Muslim
employees could return to work that day. PSF ¶ 100. JBS decided that, for those
suspended employees who did not return to work on September 9, the suspension
would become a termination. Id. JBS communicated those decisions to the committee
during the Tuesday, September 9 meeting. Id. Fifth, despite the fact that JBS has a
procedure of meeting individually with suspended employees and informing suspended
employees of when to return to work, PSF ¶ 101, JBS decided not to follow that
procedure with respect to suspended Muslim employees. PSF ¶¶ 103-104. Sixth, on
September 10, JBS terminated 96 Muslim employees, Resp. to DSF ¶ 143, without
regard for whether those employees had been informed on September 9 that their
suspension had ended. See PSF ¶ 108. Unlike Sperling, Oinonen, and the Nebraska
case – all of which characterized the employer’s allegedly discriminatory conduct as a
68

“single event” or “one-time occurrence” –, a reasonable factfinder could conclude that
the events of Ramadan 2008 consisted of multiple events or occurrences of
discrimination on the part of JBS. See Thompson v. Weyerhaeuser Co., 582 F.3d
1125, 1127 (10th Cir. 2009) (noting that trier of fact must determine existence of
discriminatory pattern or practice). 26 Thus, the authority upon which JBS bases its
argument is distinguishable and is therefore an insufficient reason upon which to grant
JBS summary judgment on EEOC’s Phase I retaliation and discrimination claims. This
aspect of JBS’s motion for summary judgment is denied.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that defendant’s Motion for Summary Judgment and Brief in Support
[Docket No. 330] is DENIED.

DATED July 17, 2015.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

26

EEOC asserts that, during Ramadan 2008, Greeley managers monitored
restrooms and disciplined employees found praying during unscheduled breaks. PSF
¶ 6. Because the Court concludes that JBS has not prov ided an adequate basis for
granting summary judgment in its favor, the Court need not consider whether the
additional evidence that EEOC relies upon in support of these claims is sufficiently
related to the events leading up to the September 10 mass termination of Muslim
employees so as to properly be considered in conjunction with EEOC’s Phase I
retaliation and discrimination claims.
69