Equal Employment Opportunity Commission v. JBS USA, LLC

Filing 720

ORDER by Chief Judge Philip A. Brimmer on 1/25/2021, re: 711 Plaintiff EEOCs Second Motion for Partial Reconsideration of the Phase I Findings of Fact and Conclusions of Law is DENIED.(sphil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief 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 Plaintiff EEOC’s Second Motion for Partial
Reconsideration of the Phase I Findings of Fact and Conclusions of Law [Docket No.
711], filed on December 22, 2020. The Equal Employment Opportunity Commission
(“EEOC”) requests that the Court reconsider its Phase I Findings of Fact and
Conclusions at Law (“Phase I Findings”) [Docket No. 620], which were entered on
September 14, 2018, because it believes that the Tenth Circuit’s en banc decision in

Exby-Stolley v. Bd. of Cnty. Comm’rs, 979 F.3d 784 (10th Cir. 2020), a disabilityaccommodation case brought under the Americans with Disabilities Act (“ADA”), is an
intervening change in the controlling law for claims brought under Title VII’s religiousaccommodation framework. Docket No. 711 at 1. Defendant JBS USA, LLC, d/b/a
JBS Swift & Company (“JBS”) responded on January 21, 2021. Docket No. 719.
I. BACKGROUND
The EEOC initiated this Title VII lawsuit against defendant on August 30, 2010,
alleging a pattern or practice of discrimination on the basis of race, national origin, and
religion, as well as raising claims of retaliation. Docket No. 1 at 1–2. On August 8,
2011, the Court issued an order bifurcating the case. Docket No. 116. Phase I of the
trial was to address three issues: (1) whether defendant engaged in a pattern or
practice of unlawfully denying Muslim employees reasonable religious accommodations
to pray and break their Ramadan fast from December 2007 through July 2011; (2)
whether defendant engaged in a pattern or practice of disciplining employees on the
basis of their race, national origin, or religion during Ramadan 2008; and (3) whether
defendant engaged in a pattern or practice of retaliating against a group of black,
Muslim, Somali employees for engaging in protected activity in opposition to
discrimination during Ramadan 2008. Id. The Court presided over a 16-day court trial
for Phase I from August 7 to August 31, 2017. Docket Nos. 577–592.
On September 24, 2018, the Court issued its Phase I Findings. Docket No. 620.
It found that (1) while defendant had denied Muslim employees a reasonable religious
accommodation to pray during Ramadan (other than in 2009 and 2010), the EEOC had
not made a requisite showing that any employees suffered a materially adverse
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employment action as a result of defendant’s policy denying unscheduled prayer
breaks, id. at 82; (2) the EEOC had failed to prove that defendant’s disciplinary actions
during Ramadan 2008 were motivated by a discriminatory animus, id. at 90; and (3) the
EEOC had failed to demonstrate that defendant’s discipline of employees during
Ramadan 2008 was for a retaliatory purpose rather for engaging in a work stoppage.
Id. at 95. The Court dismissed the EEOC’s Phase I pattern or practice claims. Id.
II. LEGAL STANDARD
The Federal Rules of Civil Procedure do not specifically provide for motions for
reconsideration. See Hatfield v. Bd. of Cnty. Comm’rs for Converse Cty., 52 F.3d 858,
861 (10th Cir. 1995). Instead, motions for reconsideration fall within a court’s plenary
power to revisit and amend interlocutory orders as justice requires. See Paramount
Pictures Corp. v. Thompson Theatres, Inc., 621 F.2d 1088, 1090 (10th Cir. 1980) (citing
Fed. R. Civ. P. 54(b)). However, in order to avoid the inefficiency which would attend
the repeated re-adjudication of interlocutory orders, judges in this district have imposed
limits on their broad discretion to revisit interlocutory orders. See, e.g., Montano v.
Chao, No. 07-cv-00735-EWN-KMT, 2008 WL 4427087, at *5-6 (D. Colo. Sept. 28,
2008) (applying Rule 60(b) analysis to the reconsideration of interlocutory order); United
Fire & Cas. Co. v. McCrerey & Roberts Constr. Co., No. 06-cv-00037-WYD-CBS, 2007
WL 1306484, at *1-2 (D. Colo. May 3, 2007) (applying Rule 59(e) standard to the
reconsideration of the duty-to-defend order). Regardless of the analysis applied, the
basic assessment tends to be the same: courts consider whether new evidence or legal
authority has emerged or whether the prior ruling was clearly in error. Green v.

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Fishbone Safety Sols., Ltd., 303 F. Supp. 3d 1086, 1091-92 (D. Colo. 201 8). Motions
to reconsider are generally an inappropriate vehicle to advance “new arguments, or
supporting facts which were available at the time of the original motion.” Servants of
the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
III. ANALYSIS
The EEOC asks that the Court reconsider the Phase I Finding s because it
believes that the Tenth Circuit’s recent en banc decision in Exby-Stolley, a disabilityaccommodation case brought under the ADA, is an intervening change in Title VII
religious-accommodation law. Docket No. 711 at 1.
In the Phase I Findings, the Court held that “the EEOC cannot show a pattern or
practice of denying religious accommodation unless it can also show that at least one
employee suffered an adverse employment action in relation to a discriminatory pattern
or practice.” Docket No. 620 at 58. The Court also held that the EEOC failed to show
“that any employee suffered a detriment to compensation, terms, conditions, or
privileges of employment, because of such individual’s . . . religion in relation to
discipline imposed for unscheduled prayer breaks” and, therefore, the Court concluded,
“the EEOC has failed to prove its claim that JBS’s policy constituted an unlawful pattern
or practice of discrimination.” Id. at 82 (internal quotation omitted).
The Court determines that Exby-Stolley is not an intervening change in the law
controlling Title VII religious-accommodation cases. Exby-Stolley is an ADA case
where the district court instructed the jury that, in order for the plaintiff to make out an
ADA accommodation claim, the plaintiff had to show that she had suffered an adverse

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employment action. 979 F.3d at 788. In holding that the ADA did not require that
plaintiff prove that she suffered an adverse employment action, the Tenth Circuit
compared the elements of an ADA accommodation claim with a religious
accommodation claim brought under Title VII. Id. at 792–93. The Court explained that,
while ADA claims do not require that a plaintiff show an adverse employment action, in
Title VII religious-accommodation cases, the prima facie case requires the employee to
show, among other things, that “he or she was fired or not hired for failure to comply
with the conflicting employment requirement.” Id. at 739 (quoting EEOC v. Abercrombie
& Fitch Stores, Inc., 731 F.3d 1106, 1122 (10th Cir. 2013), rev’d and remanded on
other grounds, 575 U.S. 768 (2015)). Exby-Stolley further stated that Tenth Circuit law
“require[s] an adverse employment action to support Title VII religious-accommodation
claims.” Id. at 793 n.3. Thus, Exby-Stolley characterized Title VII’s requirement
consistently with the Court’s Phase I Findings and did so en banc, without a contrary
interpretation in the dissents.
As the Court explained in its Phase I Findings, and as the Tenth Circuit stated in
Exby-Stolley, the adverse employment action requirement for Title VII religiousaccommodation claims is not new. See, e.g., Thomas v. Nat’l Ass’n of Letter Carriers,
225 F.3d 1149, 1155 (10th Cir. 2000) (“The employee must show that (1) he or she had
a bona fide 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 fired for failure to
comply with the conflicting employment requirement.”); see also Toledo v. Nobel-Sysco,
Inc., 892 F.2d 1481, 1486 (10th Cir. 1989). In f act, the Tenth Circuit explained that the

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fact “[t]hat a disparate treatment claim – under Title VII or the ADA – would require an
adverse employment action is wholly unremarkable.” Exby-Stolley, 979 F.3d at 793
n.3. The law concerning religious-accommodation claims under Title VII, therefore,
remains the same as it was before the Exby-Stolley decision.
For the foregoing reasons, it is
ORDERED that Plaintiff EEOC’s Second Motion for Partial Reconsideration of
the Phase I Findings of Fact and Conclusions of Law [Docket No. 711] is DENIED.

DATED January 25, 2021.
BY THE COURT:

____________________________
PHILIP A. BRIMMER
Chief United States District Judge

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