EEOC
Filing
469
MEMORANDUM AND ORDER The Motion for Summary Judgment (Filing No. 342 ) filed by Defendant JBS USA, LLC f/k/a JBS Swift & Co., a/k/a Swift Beef Company (JBS) is granted in part and denied in part. The Motion for Partial Summary Judgment (Filing No. 343 ) Filed by Plaintiff Equal Employment Opportunity Commission, is denied. Ordered by Chief Judge Laurie Smith Camp. (RAS)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
CASE NO. 8:10CV318
Plaintiff,
MEMORANDUM
AND ORDER
ABDI MOHAMED, et al.,
Plaintiffs/Intervenors,
FARHAN ABDI, et al.,
Plaintiffs/Intervenors,
vs.
JBS USA, LLC, f/k/a JBS SWIFT & CO.,
a/k/a SWIFT BEEF COMPANY,
Defendant.
This matter is before the Court on the Motion for Summary Judgment (Filing No.
342) filed by Defendant JBS USA, LLC f/k/a JBS Swift & Co., a/k/a Swift Beef Company
(“JBS”), and the Motion for Partial Summary Judgment (Filing No. 343) filed by Plaintiff
Equal Employment Opportunity Commission (“EEOC”). The parties have filed briefs
and indexes of evidence in support of their respective positions. For the reasons stated
below, JBS’s Motion will be granted in part and denied in part. The EEOC’s Motion will
be denied.
PROCEDURAL HISTORY
The EEOC alleged in its initial Complaint (Filing No. 1) that JBS engaged in a
pattern or practice of discrimination against Somali Muslim employees at its Grand
Island, Nebraska, facility.
In its Amended Complaint (Filing No. 99), the EEOC
identified 153 individuals for whom it seeks relief. Two groups of allegedly aggrieved
employees1 filed Complaints in intervention, but no class has been certified pursuant to
Fed. R. Civ. P. 23.
On April 15, 2011, the parties entered into a bifurcation agreement (Filing No. 761) that Magistrate Judge Gossett adopted and approved (Filing No. 81). The agreement
divided the discovery and trial into two phases: Phase I relates to pattern-or-practice
claims to be addressed using the Teamsters method of proof,2 and to employment
practices and workplace events leading up to and encompassing Ramadan 2008. The
parties have agreed that Phase I should be tried to the Court and not a jury. (Filing No.
403.) Phase II relates to individual claims and relief and any claims for which no pattern
or practice liability was found in Phase I. The Intervenors have been precluded from
participating as parties during Phase I; their participation during Phase I is limited to the
role of fact witnesses. (Filing Nos. 296, 338.)
The present Motions relate only to the three Title VII, pattern-or-practice claims
the EEOC is pursuing in Phase I of this lawsuit: (1) unlawful denial of religious
accommodations concerning break times for prayers3; (2) unlawful termination based on
religion and/or national origin; and (3) unlawful retaliation for engaging in a protected
activity. (See Filing No. 76-1 at 2.) The unlawful retaliation claim includes adverse
1
Referred to herein as the “Intervenors”.
2
So called for the decision in Int’l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977),
laying out a framework for analysis of claims when the government seeks to remedy systematic practices
of employment discrimination.
3
The EEOC alleges that JBS failed to accommodate the allegedly aggrieved Somali Muslim
employees (1) by failing to grant their requests to leave the meat processing line to pray despite granting
non-Somali Muslim co-workers’ requests to leave the line to use the bathroom, and (2) by, during
Ramadan 2008, refusing to move the B Shift dinner break to a time that would have met the Somali
Muslim employees’ prayer needs.
2
employment actions such as termination and discipline, but specifically excludes any
alleged harassment or hostile work environment claims, which will be tried in Phase II.
(Id.) In its Motion, JBS seeks the dismissal of all three of these claims. The EEOC, in
its Motion, seeks to establish as a matter of law that JBS engaged in a pattern or
practice of denying reasonable accommodations to its aggrieved Somali Muslim
employees’ requests for break times to pray.
FACTUAL BACKGROUND
Unless otherwise indicated, the following facts are stated in the briefs and
supported by pinpoint citations to admissible evidence in the record, that the parties
have admitted, and that the parties have not properly resisted as required by NECivR
56.14 and Fed. R. Civ. P. 56. The undisputed fact derive from both parties’ Motions:
I.
JBS Operations and Background
A.
JBS’s Grand Island Facility and Operations
JBS, at all relevant times, owned and operated a beef slaughter and fabrication
facility in Grand Island (the “Facility). The United Food and Commercial Workers Union
Local 22, which merged with Local 293 in the summer of 2011 (the “Union”),
represented all of the hourly production and maintenance employees at the Facility. A
collective bargaining agreement entered into by JBS and the Union (the “CBA”)
governed the terms and conditions of employment for the hourly production and
maintenance employees. The CBA required JBS to provide two paid rest periods, and
an unpaid meal period. The precise timing of the rest periods was to vary according to
production needs or emergencies. The CBA also expressly prohibited strikes or work
4
“Properly referenced material facts in the movant’s statement are considered admitted unless
controverted in the opposing party’s response.” NECivR 56.1(b)(1).
3
stoppages by the Union or its members, and gave JBS the right to determine the
appropriate discipline for any employee in breach of this provision. The CBA also had a
non-discrimination clause, and required JBS and the Union to provide religious
accommodations based upon employees’ religious tenets.
The CBA required
employees to make written requests for religious accommodation, and to cooperate with
JBS and the Union to explore reasonable alternatives.
In 2007 and 2008, the Facility operated three shifts: two production shifts and a
clean-up shift. One of the production shifts ran from 6:00 a.m. to 2:30 p.m. (the “A
Shift”), and the other production shift ran from 3:00 p.m. to 11:30 p.m. (the “B Shift”).
(Dep. of Mary Chmelka, Filing No. 347-1 at 92:4-22; Dep. of Cindy Davis, Filing No.
347-4 at 85:10-86:20.)5 A majority of Somali Muslim employees working at the Facility
worked in fabrication on the B Shift.
Under the CBA, the B Shift’s first scheduled break occurred between 5:00 p.m.
and 6:00 p.m., and the lunch or meal break occurred between 7:30 p.m. and 8:30 p.m.,
with employees beginning these breaks on a “rolling basis.” That is, employees would
leave the production line to go on these breaks once they finished processing the meat
in front of them and no more meat was coming down the line. As a result, employees at
the beginning of the line went on their thirty-minute meal break first while those at the
end of the line went on their thirty-minute meal break last. Twenty to thirty minutes
could elapse between the time the first employee left the production line to start his or
her break to the time the last employee left the production line for the break. If the
5
References to depositions in this Memorandum and Order will note the CM/ECF filing number
(“Filing No.”) and deposition page number.
4
employees were to take a “mass break” instead of taking their breaks on a “rolling
basis,” all employees would leave the production line at the same time and meat would
remain on the line. Mass breaks were unpopular, because when all employees left the
production line at once, there was insufficient time for everyone to go to the cafeteria,
eat, use the restroom, and get back to the line before the break is over.
In addition to the regularly scheduled rest and meal breaks, an employee could
make a request to his or her supervisor for an unscheduled break. For example, an
employee could request to leave the production line to use the restroom. The EEOC
presented evidence that in 2007 and 2008, there was no authorized unscheduled break
policy to allow a person to pray, as opposed to using the restroom.6
The only
authorized unscheduled break was for restroom use. (Filing No. 344-2 at 247:15248:10.) Under the informal break policy, employees could ask for time to go to the
restroom, and such breaks had no specific set time limit and could last up to fifteen
minutes. (Id. at 33:14-22, 34:24-35:6.) The company’s “standard practice” was not to
allow employees to leave the line, other than for physical needs. (Filing No. 344-2 at
259:21-260:6.)
The Facility’s operations were divided into two separate areas: slaughter and
fabrication. Both areas operated on a production-line basis. That is, a “chain” moved
beef, in one direction, from slaughter to a cooler, then from the cooler through
6
JBS does not dispute that witnesses testified to many facts, but disputes that this testimony
establishes a pattern or practice of discriminatory behavior, or that the EEOC’s characterization of the
testimony demonstrates corporate policy or a standard practice. (See generally Filing No. 429 at 7-17.)
5
fabrication,7 and then from fabrication into packaging. The chain could stop for various
reasons, such as mechanical failure, cattle grade changes, a cattle abscess, or
employee fights. It also could be set to move at varying speeds, calculated on a “head
per hour basis.” Working on the production line consisted of hard, manual labor, and
required employees to wear safety equipment that included a frock, hair net, beard net,
hard hat, ear protection, gloves, and steel toed boots. It usually took at least two to
three minutes for an employee to don or doff this equipment, which the employee had to
do to leave the production line to go on or return from a break.
B.
JBS’s Discrimination Policies and Training
The Facility had an employee handbook that included policies that prohibited
discrimination, retaliation, and harassment. (Filing No. 356-1.) JBS also had separate
policies, a Harassment and Retaliation Policy (Filing No. 356-2) and a Zero-Tolerance
Policy (Filing No. 356-3), that prohibited discrimination and retaliation. These separate
policies were disseminated and posted at the Facility.
During orientation,
representatives from the Union also mentioned that, in general terms, discrimination
was prohibited at the Facility.
C.
JBS’s Industry and Employee Break Schedules
JBS is in a competitive industry with very low margins, and having employees off
the production line had an adverse financial impact on JBS. The negative financial
impact increased the longer an employee was off the line and with each additional
employee that stepped off the line. An employee leaving the production line for an
unscheduled break could affect other employees and production levels depending on
7
Different lines of employees perform different jobs on the beef as it moves through fabrication.
6
the number of employees leaving the line at one time and whether or not there were
other employees available to cover for those leaving.
For example, those who
remained on the line needed to work harder and faster when someone stepped off the
line. There is evidence that meat piled up when employees stepped away from the
production line for restroom breaks.
Rigid break schedules would prevent the Facility from minimizing the disruption
of mechanical breakdowns.
Flexible breaks would minimize such disruptions by
allowing employees to go to break when machinery was inoperable and being repaired.
Equipment breakdowns and cattle-grade changes are unpredictable. If an equipment
breakdowns occur during the flexible window of time for a rest or meal break,
employees may go on a break while the equipment is repaired.
D.
General Tenets of the Muslim Faith & Intervenors’ Varied Beliefs
Muslims believe the Qur’an is the literal word of God. They also believe that they
should pray in accordance with the Prophet Muhammad’s teachings, which call for five
prayers a day: (1) morning, referred to as the fajr prayer; (2) noon, referred to as the
dhur or zuhr prayer; (3) afternoon, referred to as the asr prayer; (4) evening/sunset,
referred to as the maghrib prayer; and (5) night, referred to as the isha prayer.
Ramadan is one month of the year in which Muslims are expected to, among other
things, fast from dawn to dusk. Muslim prayer requirements, however, are year round.
The individual Intervenors in this case have varied beliefs with respect to: (1) the
window of time within which they must recite their daily prayers; (2) the length of time
required to complete their daily prayers; (3) the prayer schedule that should be followed;
(4) the exact time at which each of the five daily prayers should be recited; (5) when it is
7
permissible to skip a payer, combine prayers, or pray late.
For example, while some of
the Intervenors believe there is no permissible window of time (the prayer must be
performed at an exact time), others believe it is permissible to perform the prayers
within five, ten, or fifteen minutes--and depending on the prayer, within certain hours--of
a specified prayer time. With respect to all of the prayers except the morning prayer,
the time it takes the Intervenors to perform their prayers can be anywhere from less
than five minutes to up to fifteen minutes.
In 2007 and 2008, JBS permitted its employees to pray in the Facility, at least
during regularly scheduled breaks, except in areas that posed a safety risk. The EEOC
presented testimony that the company’s policy was that Muslim employees could only
pray on regularly scheduled breaks, which were the first break and the meal break.
(Filing No. 344-3 at 131:14-17.)
“They were not allowed to use what you call an
informal break to pray. It was only for restroom breaks.” (Id. at 131:24-132:3.)
II.
Events Leading To EEOC’s Charge
A.
2007
In Spring of 2007, a group of Somali Muslim employees took part in a “walk out”
due to break-time issues with their sunset prayer. In an attempt to avoid a possible
work conflict with sunset prayer practices, management at the Facility told some of the
Somali Muslim employees they could request a transfer to the A Shift. Four or five
Somali Muslim employees so requested, and were transferred to the A Shift.
In July 2007, JBS began to analyze the impact of accommodating prayer
requests. As part of this process, JBS requested that the average cost of one minute of
down time be calculated for both the slaughter and fabrication areas of the Facility. The
8
calculation revealed that down time necessary to accommodate prayer requests would
result in a cost that JBS considered significant.
B.
2008
In September 2008, JBS sought to determine whether it should adjust meal
breaks to coincide with the evening prayers, and JBS compared production and break
schedules with Islamic prayer times throughout the year.
JBS also considered the
possibility of a mass break during Ramadan, and analyzed the cost impact of such
breaks.
On September 10, 2008, during the B Shift, a trainer at the Facility grabbed a
Somali Muslim woman’s shoulder after he had instructed the woman to move her
position on the production line. Some of the other Somali Muslim women on the line felt
the trainer had mistreated the woman by grabbing her shoulder.
Several of those
women left the production line and met with Mary Chmelka, a JBS human resources
manager, to discuss the incident. Those women returned to the production line and,
soon thereafter, went to pray in a storage area.
Some of the women placed cardboard pieces on the floor to kneel for prayer.
The operations manager and superintendent for the B Shift both entered the storage
area where the women were praying. Some of the women felt the operations manager
and superintendent had interrupted their prayer. As the women left, the superintendent
picked up the cardboard on which some of the women had prayed. One of the women
believed the superintendent kicked her cardboard piece, thereby showing disrespect for
her prayer. Because of the perceived interruption and disrespect, the women became
upset. Thereafter, the operations manager and superintendent escorted the women to
9
Chmelka’s office.
Chmelka perceived them to be very emotional, so she sent the
women home. Chmelka told them she would investigate the incident, and asked that
they return to work on September 12, 2008. That night, after those women had been
sent home, the rest of the production line worked until 3:00 a.m. or 4:00 a.m., resulting
in JBS incurring overtime expenses.
On September 11, 2008, a group of Somali Muslim employees met with the
Union regarding break times and prayer issues. After meeting with the Union, the group
of employees approached Chmelka about the incident that occurred the previous day.
Chmelka arranged to have a meeting the next day with JBS’s management, the Union,
and some of the Somali Muslim employees to discuss that incident and “prayer issues.”
On September 12, 2008, the Facility’s manager, Dennis Sydow, began the
meeting by quashing a rumor to the effect that some of the Somali Muslim women
involved in the incident had been fired.
The parties then began to discuss prayer
breaks. One of the six Somali Muslim employees present at the meeting, acting as a
translator for the other five Somali Muslim employees, asked whether they would be
allowed to leave the production line to pray “on time.”
The Somali employees
suggested that they be allowed to leave the production line for five minutes, one by one,
to pray while someone covered for them on the line. (Filing No. 356-7 at CM/ECF p. 2.)
Sydow indicated that he and others had considered the idea, but had concluded it was
not a good solution because it would affect productivity and quality if people went back
and forth on the production floor. Sydow also mentioned that moving the meal break
earlier would cause problems due to constraints in the CBA. The translator inquired
about receiving prayer accommodations throughout the year.
10
Sydow indicated the
meeting only related to prayer accommodations for Ramadan. The participants agreed
to meet again on September 15, 2008, so that the six Somali Muslim employees would
have a chance to discuss the meeting with other Somali Muslim employees. Chmelka
concluded the meeting, stating that the Somali Muslim employees could pray during
their scheduled breaks anywhere in the Facility.
On September 13, 2008, JBS’s corporate vice president, Jack Shandley, sent an
email inquiring whether a prayer accommodation that allowed employees to leave the
line within ten minutes of sunset could be accomplished.
In that email, Shandley
indicated to Sydow and Chmelka that supervisors needed to be consistent with how
they handled prayer issues on the production floor.
On September 15, 2008, Union officials met with a group of Somali Muslim
employees at the Union’s office to discuss prayer breaks at the Facility. That same day,
JBS’s corporate director of finance, Heather Skinner, received directions to analyze the
cost of providing JBS’s employees an additional ten-minute break.
Skinner, the costs “add[ed] up quickly.”
According to
(Filing No. 361-3 at CM/ECF p. 2.)
JBS
management also held its second meeting with certain Somali Muslim employees to
discuss their prayer issues in more depth.
At the meeting, Sydow noted that JBS received information the previous year
indicating that there was a forty-five minute window for Muslim prayer before and after
sunset.
He asked the Somali Muslim employees present at the meeting why the
window was different in 2008. After “some discussion among the group” (Filing No.
356-8 at CM/ECF p. 1), the individual acting as the translator for the Somali Muslim
employees answered that the correct window of time for the prayer at sunset was within
11
ten or fifteen minutes of sunset.
Two of the employees, one of whom was the
translator, asked that JBS allow its Muslim employees to leave the production line to
pray for five minutes at a time while others covered for those who left the line. Chmelka
replied that there would not be enough time to relieve the approximately 200 Muslim
employees within a ten-minute prayer window.
Sydow also indicated that the
accommodation the Somali Muslim employees proposed could create safety and quality
issues.
Sydow then raised the possibility of accommodating the Somali Muslim
employees by moving them to the A Shift, noting that “[i]t would take a bit of time while
someone is trained to replace you,” and that it did not “answer the immediate [n]eed but
over a period of time that [he] [believed] [it] would solve the problem.” (Filing No. 356-8
at CM/ECF p. 2.) Before the meeting adjourned, Sydow reiterated that the employees
could “pray wherever they want and no one will bother them.” (Filing No. 356-8 at
CM/ECF p. 3.)
After the meeting, a group of approximately 150 Somali Muslim employees
gathered outside the Facility and chose to “strike.” Pursuant to this strike, most of these
150 employees did not go to work the evening of September 15, 2008. During the
strike, Union officials told the 150 employees that they had to go back to work, and
advised them to submit written requests for religious accommodation.
On September 16, 2008, some of the 150 Somali Muslim employees returned to
work, while others continued to strike. JBS management, Union officials, and certain
individuals acting as representatives for the Somali Muslim employees met again. JBS
offered to move the meal break to approximately fifteen minutes earlier in the evening
and, at that time, have a fixed mass break, and also to shorten the shift by fifteen
12
minutes for the remainder of Ramadan. The Somali Muslim employees and Union
officials present at the meeting agreed to JBS’s proposal.
Those Somali Muslim
employees agreed that the employees would return to work and that a disciplinary
notice would be added to the files of those employees who went on strike. Many of the
Somali Muslim employees who were not at the meeting with JBS management and the
Union officials learned of the agreement while they were at a park where they were
striking. Sydow memorialized the agreement in a letter he sent to the Union.
Either after the B Shift on September 16, 2008, or some time on September 17,
2008, an unknown person posted signs around the Facility that, in Spanish, encouraged
employees to “fight for [their] rights.” (See Filing No. 423-5.) The sign also referenced
the 7:45 p.m. meal break and requested that employees meet by the personnel office at
3:00 p.m. before the B Shift.
(See Filing No. 423-5.)
Many of JBS’s Hispanic
employees incorrectly assumed that JBS had given every Somali employee a dollar
raise. Tension increased throughout the day, and after hearing rumors about the 7:45
p.m. mass break, a group of over 100 employees, composed of both A and B Shift
workers, the majority of whom were Hispanic, refused to go to the production floor and
walked off the job. This group of over 100 employees moved outside the Facility.
JBS managers, including Sydow and Chmelka, went outside to try to talk to those
100 employees. Union representatives also attempted to talk to the 100 employees and
get them to return to work. The JBS managers and Union representatives learned that
the 100 employees were upset about the change in the B Shift meal break and the
shortening of the B Shift. The managers and Union representatives informed the 100
employees that they were engaging in a work stoppage for which they could be
13
terminated. The crowd dispersed, and JBS decided to send home the employees who
had not walked off the job because there were no longer enough employees on duty to
continue with production on the B Shift. Fabrication workers stayed to perform their
jobs, but were only able to process a reduced number of cattle compared to the
previous night.
Due to the work disruptions, overall production for the week was
significantly less than average.
On September 18, 2008, non-Muslim employees continued to protest outside the
Facility and refused to return to work. In order to get the non-Muslim employees to
return to work so the Facility could operate again, JBS management decided to return to
its original meal break time and shift length. Chmelka informed some of the Somali
Muslim employees involved in the previous meetings that JBS had decided to change
the meal-break time back to how it was before. Those Somali Muslim employees said
they would inform the other Somali Muslim employees.
Prior to the start of the B Shift meal break on September 18, 2008, at around
7:45 p.m. or 7:50 p.m., several Somali Muslim employees stepped off the production
line without permission. Those employees were sent to Chmelka’s office for doing so,
and Chmelka prepared a written disciplinary notice for one of those employees before
allowing him to go to the cafeteria for a meal break so he could break his fast. Chmelka
planned to write disciplinary notices for the other employees who stepped off the
production line without permission after their meal break. Subsequent events in the
cafeteria, however, interrupted her plans.
In the cafeteria, some Somali Muslim employees were yelling, slamming their
hard hats on the table, and banging their food trays. Sydow attempted to calm people
14
and told them to return to work. A Union representative also encouraged employees to
go back to work. At least one Somali Muslim employee heard a manager instructing
employees to “go back to work or leave.” (See Filing No. 350-2 at 236:5-20.) Another
Somali Muslim employee heard Chmelka say “if you guys need to work, go back to the
job, if you don’t want to work, you can leave your badge and can leave without trouble,
without yelling.” (Filing No. 351-2 at 174:3-12.) At some point, someone called the
police and informed them of a disturbance at the Facility that might escalate to
something beyond a verbal confrontation. By the time the police arrived, the crowd in
the cafeteria had dispersed.
Approximately eighty Somali Muslim employees left the Facility and did not
return. JBS management met that night and decided to terminate the employees who
left the Facility instead of returning to work. The next morning, September 19, 2008,
when those employees arrived at the Facility, they learned of their termination and
received their final paychecks. Some of the Intervenors did not leave the facility during
their shift and were not terminated.
III.
Charges of Discrimination and the Investigation
After Ramadan 2008, the Nebraska Equal Opportunity Commission (“NEOC”)
received calls from some of JBS’s Somali Muslim employees, although the NEOC does
not have any records of those calls. In response to those calls, the NEOC organized a
mass intake process at a hotel in Grand Island.
Approximately eighty charges were received on October 2 and 3, 2008, at the
hotel. The charges were in English. Contrary to the NEOC’s usual practice, the NEOC
did not record the intake meetings conducted at the hotel.
15
After the mass intake
meetings, the NEOC interviewed seven of JBS’s management employees; four nonMuslim, non-management JBS employees; and none of JBS’s management employees
from JBS’s corporate office in Greeley, Colorado. At least one of the three NEOC
investigators assigned to investigate the Somali Muslim employees’ charges believed
that Muslim prayer times were universal and made no effort to determine how many
Muslims were on each production line at the Facility. At some point in 2009, the NEOC
transferred all its charge files to the EEOC.
Prior to August 30, 2010, no one from the EEOC was involved in the
investigation of any charge forming the basis of this lawsuit, except for Hassan
Duwane’s charge.
The EEOC is relying on the NEOC’s investigation to satisfy its
obligation to investigate the charges that form the basis of this lawsuit. The EEOC and
NEOC are parties to a worksharing agreement that references their defined agency
relationship. In the worksharing agreement entered into by the EEOC and the NEOC
for fiscal year 2008, the EEOC and NEOC agreed to “each designate the other as its
agent for purpose of receiving and drafting charges.” (Filing No. 356-14 at CM/ECF p. 2
¶ II.A.) The worksharing agreement references § 706, subsections (c) and (d), of Title
VII when describing how the EEOC and NEOC agreed to divide the primary
responsibility for resolving charges. (Filing No. 356-14 at CM/ECF p.2 ¶ III.)
In August 2009, the EEOC issued determination letters including a “cause”
finding for each of the eighty-four or eighty-five pending charges.
The letters are
identical to each other except for the charging party’s name, address, and charge
number.
Those letters state: “The evidence obtained during the investigation
establishes that Respondent failed to accommodate the religion of Charging Party and
16
the class of Somali Muslim employees and that such accommodation would not have
posed an undue hardship to Respondent.” (See, e.g., Filing No. 358-12.)
In early September 2009, the EEOC began conciliation efforts with JBS. An
EEOC conciliation conference memo noted that the EEOC indicated that, although it
would help JBS do so, JBS needed to develop the plan for providing reasonable
accommodations to its Somali Muslim employees because JBS knew the details of the
situation. That memo also noted that the EEOC considered the reasonable
accommodations issue to be an individual issue; that is, it would differ among Muslim
employees.
In a letter dated September 2, 2009, EEOC proposed that JBS promptly
develop and implement an effective plan for providing religious accommodation. The
conciliation efforts were unsuccessful, and on August 30, 2012, the EEOC filed suit
against JBS.
IV.
JBS’s Current Practices
In 2009, JBS issued written guidelines that addressed its Muslim employees’
requests for unscheduled breaks for prayer. The written guidelines implemented in
August 2009 provided that supervisors could allow unscheduled breaks for the restroom
and for prayer, at least during the month of Ramadan. (Filing No. 344-2 at 259:21260:6; Filing No. 344-12, Guidelines for Unscheduled Work Breaks.) These guidelines
instruct JBS supervisors to grant prayer requests in the order received and as
operations permit and give requests to use the restroom priority over prayer requests
due to safety and occupational concerns. Employees can leave the production line only
to the extent that it does not interfere with production. Sydow said the change in policy
was associated with the prayer break issues that occurred during Ramadan in
17
September 2008. (Filing No. 344-5 at 239:22-240:16, 242:9-243:6.) JBS disputes that
the prayer policy was even a change, noting that Sydow merely testified he personally
associated the change in policy with the events of Ramadan in 2008. (Filing No. 429 at
15; Filing No. 344-5 at 242:9-243:3.) Further, JBS notes that the new break guidelines
state they are “intended to confirm the practice already in place.” (Filing No. 344-12 at
1.)
Doug Schult, JBS’s head of labor relations, testified that the new guidelines
changed the “standard practice” of not allowing people to leave the line for reasons
“other than physical needs.” (Filing No. 344-2 at 260:2-4; 344-12.) Schult also testified
that there would have been no huge hurdles to implementing the guidelines in 2007 and
2008. (Id. at 260:7-13.)
STANDARD
“Summary judgment is appropriate when the record, viewed in the light most
favorable to the non-moving party, demonstrates there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law.” Gage v. HSM
Elec. Prot. Serv., Inc., 655 F.3d 821, 825 (8th Cir. 2011) (citing Fed. R. Civ. P. 56(c)).
The court will view “all facts in the light most favorable to the non-moving party and
mak[e] all reasonable inferences in [that party's] favor.” Schmidt v. Des Moines Pub.
Sch., 655 F.3d 811, 819 (8th Cir. 2011). However, “'facts must be viewed in the light
most favorable to the nonmoving party only if there is a “genuine” dispute as to those
facts.'” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott v. Harris, 550 U.S.
372, 380 (2007)).
In response to the movant’s showing, the nonmoving party’s burden is to produce
“evidentiary materials that demonstrate the existence of a ‘genuine issue’ for trial.” Id.
18
“[T]he absence of an adequate response by the nonmovant, even after the moving party
has carried its initial burden of production, will not automatically entitle the movant to
entry of summary judgment.” Lawyer v. Hartford Life & Acc. Ins. Co., 100 F. Supp. 2d
1001, 1008 (W.D. Mo. 2000) (citing Celotex, 477 U.S. at 331). Instead, “the moving
party must show that the evidence satisfies the burden of persuasion and that the
evidence is so powerful that no reasonable jury would be free to disbelieve it.” Id. (citing
Celotex, 477 U.S. at 331). In other words, where the Court finds that “the record taken
as a whole could not lead a rational trier of fact to find for the non-moving party”–where
there is no “'genuine issue for trial'”–summary judgment is appropriate. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First
Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
DISCUSSION
JBS argues that summary judgment should be entered in its favor because the
EEOC failed to satisfy certain conditions precedent--investigation and conciliation--prior
to filing this lawsuit. With respect to the EEOC’s pattern-or-practice claim based on
alleged denial of religious accommodations, JBS also contends that summary judgment
should be entered in its favor because the EEOC has failed to present sufficient
evidence to support its claim that JBS failed to accommodate prayer requests. Further,
JBS contends that the only accommodations the EEOC alleges JBS failed to provide
were not reasonable and would have posed an undue burden on JBS. With respect to
the EEOC’s pattern-or-practice claim based on alleged unlawful terminations, JBS
argues that summary judgment should be entered in its favor because the terminations
were a one-time event and, therefore, cannot be the basis for a pattern-or-practice
19
claim; JBS had a legitimate, nondiscriminatory reason for terminating the aggrieved
employees’ employment; and the EEOC has failed to point to any evidence that
indicates similarly situated employees were treated more favorably than the aggrieved
Muslim employees. Finally, with respect to the EEOC’s pattern-or-practice claim based
on alleged unlawful retaliation, JBS asserts that summary judgment should be entered
in its favor because the EEOC has failed to point to any evidence indicating that JBS
had a policy, or that there was a pattern, of retaliation against Somali Muslim
employees, and the EEOC has failed to point to any evidence indicating that the
aggrieved employees engaged in protected activity.
The EEOC argues that it has satisfied all conditions precedent to filing this
lawsuit. It contends that it was authorized to rely on the NEOC’s investigation, the
sufficiency of which the EEOC contends is not subject to judicial review. Even if the
NEOC’s investigation were subject to judicial review, the EEOC asserts that evidence in
the record supports the conclusion that the investigation was sufficient to meet Title
VII’s requirements. The EEOC also argues that the evidence in the record is not only
sufficient to support all three of its pattern-or-practice claims, thereby precluding the
entry of summary judgment in JBS’s favor, but that there is sufficient evidence in the
record to establish the prima facie case of its religious accommodation claim as a
matter of law.
I. Preconditions to Suit
Title VII requires the EEOC to satisfy two conditions before it brings suit against
an employer: First, there must be an administrative investigation of the charges. EEOC
v. Shell Oil. Co., 466 U.S. 54, 63-64 (1984). Second, if the investigation establishes
20
reasonable cause to believe discrimination has occurred, the EEOC must attempt to
eliminate the alleged discriminatory conduct through informal conciliation efforts. Id.,
see also EEOC v. Hickey-Mitchell Co., 507 F.2d 944, 948 (8th Cir. 1974). JBS claims
the EEOC failed to satisfy the requisite preconditions because it failed to investigate the
claims itself, instead relying on the investigations performed by the NEOC; and failed to
engage in good faith conciliation efforts. For the reasons discussed below, the Court
concludes that the preconditions to suit have been satisfied.
A.
Investigation
1.
The EEOC Can Rely On The NEOC’s Investigation
The Court has previously found that the EEOC’s pattern-or-practice claims arise
under 42 U.S.C. § 2000e-6 (“Section 707”), not 42 U.S.C. § 2000e-5 (“Section 706”).
(See Filing Nos. 296, 338.) JBS now argues that Section 707, unlike Section 706,
authorizes only the EEOC to investigate charges of discrimination, and therefore the
EEOC’s claims cannot proceed because it relied on the investigations performed by the
NEOC.
The EEOC argues that Title VII, its implementing regulations, and the
worksharing agreement between the EEOC and the NEOC (Filing No. 356-14),
authorize the EEOC to rely on the investigation conducted by the NEOC. The parties
agree that Section 706 authorizes the EEOC to delegate its duty to investigate charges
of discrimination to state agencies. See § 2000e-5(c), (d), (e)(1). Section 707 states
that the EEOC “shall have the authority to investigate and act on a charge of a pattern
or practice of discrimination [and] such actions shall be conducted in accordance with
the procedures set forth in section 2000e-5 [§706].” §707(e), 42 USC §2000e-6(e).
21
The Court concludes that § 707 of Title VII permits the EEOC to rely on the
NEOC’s investigation as a precedent to suit.
“[A]s with any question of statutory
interpretation, the court begins its analysis with the plain language of the statute.”
Owner-Operator Indep. Drivers Ass'n, Inc. v. Supervalu, Inc., 651 F.3d 857, 862 (8th
Cir. 2011). JBS argues that § 707(e) makes a distinction between “investigations” and
“actions”, and only “such actions” must be conducted according to the procedures in §
706. Further, JBS argues that Congress intentionally omitted any express reference to
state and local Fair Employment Practices Agencies (“FEPAs”) in § 707. In contrast,
the EEOC argues that the reference to “such actions” encompasses both the authority
to act and to investigate, and that § 707 should be read to include a procedural mandate
to follow § 706.
The parties’ interpretations illustrate an ambiguity that is resolved by the overall
statutory scheme of Title VII and evidence of Congressional intent. Other sections
within Title VII expressly contemplate the EEOC’s cooperation with state and local
agencies charges with the administration of a state’s fair employment practices in
carrying out the EEOC’s functions and duties under Title VII. See, e.g., 42 U.S.C. §
2000e-8(b). Further, § 705 broadly gives the EEOC authority “to cooperate with and,
with their consent, utilize regional, State, local, and other agencies, both public and
private, and individuals[.]” The implementing regulations permit the investigation of a
charge to be made by the EEOC, “its investigators, or any other representative
designated by the Commission. ” 29 C.F.R. § 1601.15(a). The regulations expressly
state that “[d]uring the course of such investigation, the [EEOC] may utilize the services
of State and local agencies which are charged with the administration of fair
22
employment practice laws or appropriate Federal agencies, and may utilize the
information gathered by such authorities or agencies.” Id.
In the legislative history most closely on point, the House Committee on
Education and Labor described the applicable language as “[a]ssimilat[ing] procedures
for new proceedings brought under § 707 to those now provided for under Section 706
so that the Commission may provide an administrative procedure to be the counterpart
of the present Section 707 action.” H. Rep. No. 92-238, reporting H.R. 1746, 92d
Cong., 2d Sess., 1972 U.S.Code Cong. & Admin.News 2137, at 2164 (reporting § 707(f)
of H.R. 1746).
The parties cite to no case or authority expressly stating whether the EEOC is
entitled to rely on the investigation of a FEPA such as the NEOC. However, courts
have interpreted Title VII generally as promoting cooperation between the EEOC and
state and local authorities. The United States Supreme Court has noted that “Congress
envisioned that Title VII's procedures and remedies would ‘mes[h] nicely, logically, and
coherently with the State and city legislation,’ and that remedying employment
discrimination would be an area in which ‘[t]he Federal Government and the State
governments could cooperate effectively.’” New York Gaslight Club, Inc. v. Carey, 447
U.S. 54, 63-64 (1980) (citing 110 Cong.Rec. 7205 (1964) (remarks of Sen. Clark)). In
referring to the relationship between the procedures describes in § 706 as they apply to
§ 707, the Fifth Circuit has stated that “Congress apparently intended that the EEOC
have investigative and conciliatory authority in ‘pattern or practice’ situations
comparable to its existing powers in § 706 cases.” United States v. Allegheny-Ludlum
Indus., Inc., 517 F.2d 826, 844 (5th Cir. 1975). The Supreme Court has recognized that
23
Title VII supports worksharing between the EEOC and state and local agencies, and is
designed to promote “unnecessary duplication of effort or waste of time.” EEOC v.
Commercial Office Products Co., 486 U.S. 107, 122 (1988). The Court agrees that the
overall promotion of cooperation between agencies, and avoidance of duplicative effort
suggests § 707 allows the EEOC to rely on the investigation performed by the NEOC.
Accordingly, the EEOC has satisfied the procedural requirement of conducting an
investigation of the charges.
2.
The Court Cannot Review The Sufficiency Of The Investigation
The Court will not review the sufficiency of the EEOC’s pre-suit investigation
because the existence of the investigation satisfies the pre-suit requirements. Both
parties agree that “[a]s a statutory prerequisite to suit, the EEOC must perform an
investigation, and [c]ourts will review whether an investigation occurred.”
EEOC v.
Hibbing Taconite Co., 266 F.R.D. 260, 272 (D. Minn. 2009). JBS argues that the Court
must also determine whether the investigation was incomplete, careless, or one-sided,
or whether the investigation was “a sham enterprise undertaken to reach a
predetermined conclusion.” (Filing No. 442 at 69.) However, courts “have no business
limiting the suit to claims that the court finds to be supported by the evidence obtained
in the Commission's investigation.” EEOC v. Caterpillar, Inc., 409 F.3d 831, 833 (7th
Cir. 2005) (Posner, J.). For this reason, “as a general rule, ‘the nature and extent of an
EEOC investigation into a discrimination claim is a matter within the discretion of that
agency.’”
EEOC v. CRST Van Expedited, Inc., 679 F.3d 657, 674 (8th Cir. 2012)
(quoting EEOC v. KECO Indus., Inc., 748 F.2d 1097, 1100 (6th Cir.1984)); see also
Caterpillar, 409 F.3d at 833 (stating “The existence of probable cause to sue is
24
generally and in this instance not judicially reviewable.”) (citing FTC v. Standard Oil Co.
of California, 449 U.S. 232, 242-43 (1980)).
JBS claims that the Eighth Circuit’s recent decision in EEOC v. CRST Van
Expedited, Inc., permits the Court to review the sufficiency of pre-suit investigations. In
CRST, the EEOC received charges of sex discrimination against the defendant trucking
company, based on allegations of sexual harassment of female drivers/employees by
two male drivers. During its pre-suit investigation, the EEOC discovered complaints
against other male drivers, leading the EEOC to investigate the entire trucking
company.
The EEOC brought a lawsuit under § 706 of Title VII on behalf of the
charging employee, and “similarly situated female employees.” CRST, 679 F.3d at 664.
The EEOC identified a total of 270 aggrieved individuals during pre-trial discovery, and
later narrowed the number to 67. The district court dismissed each of the EEOC claims
for failure to comply with the pre-suit requirements.
The Eighth Circuit affirmed the district court’s decision with respect to the
EEOC’s inability to recover an award for the 67 aggrieved individuals. The undisputed
facts in CRST demonstrated that the EEOC did not investigate allegations of 67
allegedly aggrieved persons until after the complaint had been filed; did not identify any
of the 67 allegedly aggrieved persons as members of the Letter of Determination's
“class” until after it filed the Complaint; did not make a reasonable-cause determination
as to the specific allegations of any of the 67 allegedly aggrieved persons prior to filing
the Complaint; and did not attempt to conciliate the specific allegations of the 67
allegedly aggrieved persons prior to filing the Complaint. Id. at 673. The Eighth Circuit
concluded that the EEOC thus failed to satisfy all of its pre-suit obligations for each
25
individual claim. Id. The Eighth Circuit reasoned that there was an important distinction
between facts gathered during a pre-suit investigation and facts gathered during the
discovery stage of an already filed lawsuit. Id. (citing EEOC v. Dillard's Inc., No. 08–
CV–1780–IEG (PCL), 2011 WL 2784516, at *5 (S.D.Cal. July 14, 2011) (slip op.).
Contrary to JBS’s assertion, CRST is not an expansion of the Court’s ability to
review the substantive findings of the investigation.
In CRST, the issue was not
whether the investigation was substantively sufficient, but whether the EEOC performed
the investigation and conciliation steps before filing suit. Here, JBS does not argue that
it lacked notice of the individual claims or that an investigation was not performed.
Instead, JBS argues that that the investigation was flawed and substantively
inadequate. As noted in CRST and other authorities, the EEOC enjoys wide latitude to
investigate charges of discrimination and to allege claims based on its findings in the
investigation.
Id. at 675.
The nature and extent of the investigation is within the
discretion of the EEOC, and the Court may not limit the suit to claims that the Court
finds to be supported by the evidence obtained in the Commission's investigation. See
CRST, 679 F.3d at 674; Caterpillar, Inc., 409 F.3d at 833. Accordingly, as a general
matter, the Court cannot review the sufficiency of the EEOC’s investigation as a means
of limiting the EEOC’s claims.
3.
Charge of Hassan Duwane
The EEOC argues that even if it could not rely on the investigation performed by
the NEOC, it satisfied the precondition through its own investigation of the charge filed
by Charging Party Hassan Duwane (“Duwane”).
JBS argues that the EEOC’s
investigation of Duwane’s charge is invalid because there is no direct evidence that
26
Duwane ever field a charge and, even if there was, the EEOC failed to investigate
Duwane’s charge. Because the Court finds the EEOC could rely on the investigation
performed by the NEOC, it need not address the validity of the charge filed by Duwane
for purposes of the EEOC’s pattern-and-practice claims, and need not address whether
the investigation satisfies the precondition of filing suit.
B.
Conciliation
The Court concludes that the EEOC has made sufficient attempts to conciliate as
a prerequisite to filing suit and, at the very least, its efforts preclude dismissal. “The
EEOC may bring a direct suit against an employer only after it has attempted to
conciliate in good faith but failed to reach an agreement.” EEOC v. Trans States
Airlines, Inc., 462 F.3d 987, 996 (8th Cir. 2006) (citing 42 U.S.C. § 2000e–5(f)(1);
Johnson v. Nekoosa–Edwards Paper Co., 558 F.2d 841, 848 (8th Cir.1977)). “Only if
conciliation proves to be impossible do we expect the Commission to bring action in
Federal district court to seek enforcement.” EEOC v. Hickey–Mitchell Co., 507 F.2d
944, 948 (8th Cir.1974) (citing 118 Cong.Rec. 7563 (1972) (remarks of Congressman
Perkins)). “To satisfy the statutory requirement of good faith conciliation, the EEOC
must ‘(1) outline to the employer the reasonable cause for its belief that the law has
been violated; (2) offer an opportunity for voluntary compliance; and (3) respond in a
reasonable and flexible manner to the reasonable attitudes of the employer.’ ” EEOC v.
UMB Bank, N.A., 432 F.Supp.2d 948, 954 (W.D.Mo. 2006) (quoting EEOC v. Asplundh
Tree Expert Co., 340 F.3d 1256, 1259 (11th Cir. 2003)). “Whether the EEOC has
adequately fulfilled its obligation to conciliate is dependent upon the ‘reasonableness
and responsiveness of the [EEOC's] conduct under all the circumstances.’” Id. “The
27
EEOC's efforts should be considered sufficient if it made a sincere and reasonable
attempt to negotiate by providing [the employer] with an ‘adequate opportunity to
respond to all charges and negotiate possible settlements.’” Id. (quoting EEOC v. One
Bratenahl Place Condominium Assoc., 644 F.Supp. 218, 220 (N.D.Ohio 1986)).
When a court determines that the EEOC has attempted conciliation, but has not
done so in good faith, the Court may stay the proceedings for conciliation efforts to
resume. Hibbing Taconite Co., 266 F.R.D. at 273. Cf. EEOC v. Die Fliedermaus, 77
F.Supp.2d 460, 467–68 (S.D.N.Y.1999) (court stayed proceedings for thirty days due to
a failure to conciliate in good faith where the EEOC had refused to inform the employer
of how the EEOC had calculated compensatory damages; court noted that preferred
remedy for failure to conciliate is not dismissal but instead a stay to permit such
conciliation); McGee Bros. Co., 2011 WL 1542148, at *7 (appropriate remedy for an
alleged defect in the conciliation process is an additional opportunity to conciliate).
Dismissal may only be an appropriate sanction under extreme circumstances. Hibbing
Taconite, 266 F.R.D. at 273. Cf. CRST, 679 F.3d at 677 (affirming dismissal of the
EEOC's complaint for a total failure to investigate, issue reasonable cause finding, or
conciliate, and noting that “[h]ad the EEOC not wholly abdicated its role in the
administrative process, the court might have stayed the instant action for further
conciliation in lieu of dismissal.”).
The Court concludes that the EEOC has completed the procedural requirement
of conciliation.
JBS argues that the EEOC’s conciliation letters never identified a
discriminatory policy or practice at the Grand Island Facility, and never identified or
evaluated what sort of accommodation, if any, might be possible. However, JBS does
28
not dispute that conciliation efforts took place. The record shows that the EEOC sent a
conciliation letter to JBS demanding a monetary settlement and development of an
effective plan for religious accommodation. (Filing No. 417 at 98-99.) These letters
outlined the EEOC’s reasons for its belief that the law had been violated. The letters
noted that JBS failed to accommodate the religion of the charging party for each
individual claimant, and that such accommodations would not have posed an undue
hardship to JBS.
(See Filing Nos. 346 at 50-51; 358-12.)
JBS argues that this
description falls short of advising JBS of any meaningful notice of facts underlying the
EEOC’s determination that Title VII had been violated. However, the determination of
whether the EEOC has fulfilled its obligation to conciliate is dependent upon the
“reasonableness and responsiveness of the [EEOC's] conduct under all the
circumstances.” Asplundh Tree Expert Co., 340 F.3d at 1259. The record shows that
the parties engaged in a conciliation conference that included discussions about JBS
developing an accommodation plan, and that JBS knew the facts and issues and was
expected to formulate the detail of the plan. (Filing Nos. 346 at 51; 417 at 98; Filing No.
357-2 at 2.) Thus, the parties have attempted conciliation; no evidence suggests that
these circumstances are sufficiently extreme to merit dismissal due to lack of
conciliation; and JBS has not sought a stay to conduct further conciliation. Accordingly,
the Court concludes that the EEOC has satisfied the pre-condition of conciliation.
II.
Religious Accommodation Pattern-or-Practice Claim
A.
Application of the Teamsters Framework to EEOC’s Phase I Claims
JBS argues that because of the multiple individualized issues inherent in a
religious accommodation claim, the method of proof articulated in Int’l Bhd. of
29
Teamsters v. United States, 431 U.S. 324 (1977), is inappropriate for this case, and the
EEOC’s religious accommodation pattern-or-practice claim should be dismissed.8
(Filing No. 442 at 89.) Specifically, JBS argues that religious accommodation claims
are inappropriate for pattern-or-practice treatment because in order to show unlawful
discrimination occurred, a plaintiff must make an individualized prima facie showing that
the plaintiff had a sincerely held religious belief. JBS points to two cases holding that
the Teamsters framework is at least partly inapplicable to sexual harassment and
disability discrimination claims. See e.g., EEOC v. CRST Van Expedited, Inc., 611 F.
Supp. 2d 918, 934 (N.D. Iowa 2009) (collecting cases and noting that sexual
harassment pattern or practice cases are special because, “the Teamsters pattern or
practice model breaks down when the unlawful employment practice at issue is sexual
harassment based on a hostile work environment.”); Hohider v. United Parcel Serv., Inc,
574 F.3d 169, 197–200 (3d Cir. 2009) (Rule 23 class could not be certified utilizing the
Teamsters method of proof because class members ADA claims required individualized
determination of whether each member was qualified under the statute).
The Court first notes that neither case cited resulted in dismissal of the applicable
case. For example, the district court in CRST, noted that the Teamsters model “breaks
down” if the sexual harassment pattern or practice at issue is based on a hostile work
environment. CRST, 611 F. Supp. 2d at 934. The district court in CRST concluded that
if it found that it was “CRST’s ‘standard operating procedure’ to tolerate sexual
8
The parties agreed that the claims arising in Phase I would be litigated under the Teamsters
framework, though they retained the right to challenge whether harassment/hostile work environment
claims are amendable to a pattern or practice method of proof. (Filing No. 76-1 at 2.)
30
harassment in its workplaces, the court must apply the Teamsters burden-shifting
framework as modified by [Jenson v. Eveleth Taconite Co., 824 F. Supp. 847, 875-76
(D. Minn. 1993)].” Id. at 937. Thus, even though the Teamsters model “broke down,”
the court used a modified Teamsters analysis.
Accordingly, even if the Teamsters
model does not apply to pattern-or-practice claims based on religious accommodation,
JBS has not explained why dismissal would be the appropriate remedy.
JBS does not suggest that the Court should follow a modified Teamsters model,
or that another framework should be used. The Court notes JBS’s concerns about the
evidence showing that the religious beliefs of the claimants in this case may vary.
However, these concerns can be addressed within the Teamsters framework. Title VII’s
implementing regulations require employers “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.” 29
C.F.R. § 1605.2(b)(1), (2). Thus, to the extent the individual workers’ beliefs vary, JBS
can present this evidence during Phase I of the trial as part of proving its hardship
defense.
See EEOC v. JBS USA, LLC, No. 10-CV-02103-PAB-KLM, 2011 WL
3471080, at *7 (D. Colo. Aug. 8, 2011). Further, to the extent the workers’ varied beliefs
related to prayer requests could affect Phase I of the trial, JBS has not requested that
the Court reconsider bifurcation.
In short, even if the evidence suggests that the
workers’ beliefs vary widely, the Court can find no reason that the Teamsters framework
should not be applied, and no alternative framework has been set forth. Accordingly,
the Court will apply the Teamsters framework to Phase I of the trial, unless the evidence
demands that another standard must be applied.
31
B.
Teamsters Standard in the Pattern-or-Practice Claim
JBS assets that even if the Court proceeds under the Teamsters framework, the
EEOC cannot meet its heavy burden. Under the Teamsters framework “[a] pattern-orpractice lawsuit proceeds in two phases. First, during the ‘liability phase,’ the plaintiffs
are required to establish ‘a prima facie case of a policy, pattern, or practice of intentional
discrimination against [a] protected group.’” Reynolds v. Barrett, 685 F.3d 193, 203 (2d
Cir. 2012) (quoting Robinson v. Metro-North Commuter R.R. Co, 267 F.3d 147, 158 (2d
Cir. 2001)). To make out a prima facie case, “a plaintiff must prove that the employer
‘regularly and purposefully,’ treated members of the protected group less favorably and
that unlawful discrimination was the employer's ‘regular procedure or policy.’” EEOC v.
McDonnell Douglas Corp., 191 F.3d 948, 951 (8th Cir. 1999) (internal citations omitted)
(quoting Teamsters, 431 U.S. at 360). “During the first stage of a pattern-or-practice
case, for example, a summary judgment motion (whether filed by plaintiffs or
defendants) must focus solely on whether there is sufficient evidence demonstrating
that defendants had in place a pattern or practice of discrimination during the relevant
limitations period.” Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1109 (10th
Cir. 2001). A pattern or practice exists when “the discriminatory acts were not isolated,
insignificant, or sporadic, but were repeated, routine, or of a generalized nature; in other
words, discrimination must have been ‘the company's standard operating procedure—
the regular rather than the unusual practice.’” Catlett v. Missouri Highway & Transp.
Comm'n, 828 F.2d 1260, 1265 (8th Cir. 1987) (quoting Teamsters, 431 U.S. at 336 & n.
16).
32
“Once the plaintiffs make out a prima facie case of discrimination in a pattern-orpractice case, the burden of production shifts to the employer to show that the evidence
proffered by the plaintiffs is insignificant or inaccurate.” Reynolds, 685 F.3d at 203.
“Typically, this is accomplished by challenging the ‘source, accuracy, or probative force’
of the plaintiffs' statistics.” Id. (quoting Robinson, 267 F.3d at 159 (internal quotation
marks omitted)). “If the defendant satisfies its burden of production, the trier of fact
must then determine, by a preponderance of the evidence, whether the employer
engaged in a pattern or practice of intentional discrimination.” Id.
1. Sufficiency of the EEOC’s Proof of Pattern or Practice
JBS’s arguments regarding the sufficiency of the EEOC’s evidence are noted,
but are not appropriate for summary judgment. As stated above, the EEOC bears the
initial burden of coming forth with sufficient evidence to show that intentional
discrimination was the defendant's “standard operating procedure.” Teamsters, 431
U.S. at 336.
To establish that discrimination was a standard operating procedure,
“[n]ormally, the plaintiff will produce statistical evidence showing disparities between
similarly situated protected and unprotected employees with respect to hiring, job
assignments, promotions, and salary, supplemented with other evidence, such as
testimony about specific incidents of discrimination.’” Craik v. Minn. State Univ. Bd.,
731 F.2d 465, 470 (8th Cir. 1984).
JBS concedes that statistical evidence is not always necessary to establish a
prima facie case of discrimination. However, JBS states that the Court should take into
account the lack of statistical evidence in making its determination. (See Filing No. 442
at 91 (citing Craik, 731 F.2d at 470)). The Court notes the lack of statistical evidence
33
supporting the EEOC’s claims, but concludes that disposal of the EEOC’s claims on that
basis is insufficient for purposes of summary judgment.
The EEOC relies on the
testimony of JBS’s human resources generalist, supervisors, superintendents, and the
business agent for the Union. JBS argues that much of the testimony is inaccurately
cited, taken out of context, and otherwise misrepresented. (Filing No. 442 at 98.) Much
of JBS’s challenge to the EEOC’s characterization of the evidence is not centered on
the content of the testimony, but relates to whether such testimony establishes a pattern
or practice. (See e.g. Filing No. 442 at 37, 39-57; see also Filing No. 429 at 7-15.) The
Court cannot conclude as a matter of law that the testimony cited by the EEOC fails to
establish a pattern or practice, and factual issues remain about the sufficiency of the
EEOC’s evidence.
2.
Merits of the EEOC’s Religious Accommodation Claim
JBS’s argues that if even if the EEOC’s evidence is sufficient to survive summary
judgment, the EEOC cannot establish that JBS engaged in a pattern or practice of
denying claimants a reasonable religious accommodation. JBS argues that it provided
Somali Muslim employees with a reasonable accommodation and that JBS had no
policy of denying employees unscheduled breaks to pray. JBS further argues that the
EEOC cannot base its religious accommodation pattern-or-practice claim on changes to
the meal break time; cannot demonstrate that unscheduled prayer breaks are
reasonable; and cannot show that unscheduled prayer breaks would not pose an undue
hardship. The EEOC argues that it is entitled to judgment as a matter of law on its
pattern-or-practice claim regarding JBS’s denial in 2007 and 2008 of reasonable
34
accommodation of the aggrieved Somali Muslim employees’ requests for unscheduled
breaks to pray. (Filing No. 343.)
The Court has thoroughly reviewed the arguments and evidence submitted by
both parties and concludes that material issues of fact remain for trial on the EEOC’s
religious accommodation claim. Such issues of fact may include, but are not limited to
the following:
The EEOC submitted evidence that JBS’s corporate office set company-wide
polices regarding the permissibility of unscheduled prayer breaks. The EEOC
cited the depositions of JBS human resources generalist Doug Schult, supervisor
Salvador Prado, superintendent Roger Cooper, and Union business agent Terry
Mostek, supporting to the proposition that JBS’s corporate office set the policies
regarding breaks for prayer. (See Filing No 417 at 112-13.)
JBS presented controverting evidence that JBS did not have a corporate policy
for unscheduled prayer breaks for Somali Muslims. (See e.g. Filing No. 442 at
42.) JBS asserts that the company had no regular policy or practice in place
concerning prayer during unscheduled breaks. (See Filing No. 346 at 25.) JBS
cites the deposition testimony of several JBS representatives and employees to
the effect that supervisors had discretion to permit unscheduled breaks
depending on a number of factors, and that the witnesses were not aware of a
company-wide policy regarding unscheduled prayer breaks. (See e.g. Filing No.
347-1 at 127:4-128:14, 131:7-16, 232:14-21; Filing No. 347-2 at 58:17-59:3;
Filing No. 347-4 at 92:24-:93-12, 123:6-16, 128:11-21; Filing No. 348-2 at 178:8179:12.)
JBS presented evidence that supervisors occasionally allowed people to leave
the line for unscheduled breaks to pray and use the restroom, so long as the
departure from the line did not create safety issues or cause product flow issues.
(See e.g. Filing No. 348-3 at 31:3-15.) At least one supervisor testified that in
2007 and 2008, JBS management directed him to allow a Somali Muslim to
break for prayer if possible. (Filing No. 348-4 at 124:15-21, 55:12-23, 61:1-62:8,
152:9-19, 153:2-5.)
JBS presented evidence establishing issues of fact with respect to whether JBS’s
corporate office knew about religious accommodation requests and how the
corporate office responded to such requests. (Filing No. 420 at 142:13; 144:23.)
JBS argues that the testimony cited by the EEOC does not establish the
existence of a policy or regular practice related to supervisors granting or
denying unscheduled prayer breaks. (See e.g. Filing No. 350-3 at 57:3-59:19.)
35
The EEOC argues that even if JBS did not have a company policy regarding
breaks, JBS’s break policy in 2007 and 2008 did not allow a person to be
permitted to use a bathroom break to pray. (See Filing No. 417 at 117, 118-120.)
Further, the EEOC presented evidence that Muslim employees could only pray
on official breaks—the scheduled breaks or the meal breaks—under the CBA.
(Id. at 117.) The EEOC argues that this evidence demonstrates that even though
the CBA required JBS to provide reasonable accommodation to employees
based on religious tenets, Somali Muslims were not allowed to use informal
breaks to pray. (Id.; see also Filing No. 419-5 at 131:24-132:3.)
The EEOC presented evidence that at some point JBS discussed changing the
bathroom break policy to allow Muslim employees to pray during bathroom
breaks and to honor that request just like a bathroom break request. (Filing No.
419-5 at 172:21-173:6.) The EEOC asserts that JBS changed the guidelines on
August 10, 2009, to allow unscheduled breaks for prayer, at least during
Ramadan; and that there were no hurdles to implementing the new guidelines in
2007 and 2008. (Filing No. 419-4 at 259:21-260:13; Filing No. 420-2.)
JBS contends that the “new policy” regarding unscheduled breaks was intended
to confirm the policy already in place. (Filing No. 358-13 at CM/ECF p. 5.)
Further, JBS produced evidence that accommodation would create an undue
burden on production at the Grand Island Facility. JBS presented testimony that
it is in a competitive industry with low margins, and the more employees off the
line and the longer they are away from the line, the greater the financial impact
on JBS. (Filing No. 349-5 at 165:16-20, 197:18-22; 198:3-6.) In other words, the
larger the number of employees seeking to leave the production line to pray, the
harder it could be to accommodate them. (Filing No. 354-5 at 113:9-14, 114:424, 116:1-6.) The parties’ conflicting evidence creates factual issues about the
burden on JBS to accommodate the requests.
The EEOC disputes the sufficiency and reliability of this evidence. (Filing No.
417 at 179.) The EEOC also submitted evidence that competitors in JBS’s
industry have accommodated unscheduled prayer breaks. (See Filing No. 417 at
137.)
The parties dispute whether any action was taken to make sure that supervisors
handled prayer issues on the production floor. JBS asserts that after the
incidents of Ramadan 2008, JBS’s Vice President of HR Jack Shandley advised
Chmelka and Sydow that supervisors needed to be consistent when handling
prayer issues, but that there was no evidence either of them took any action in
response to Mr. Shandley’s note. (Filing No. 346 at 15.) The EEOC argues that
either Sydow or Chmelka told Union representative Terry Mostek that employees
will be written up the first time they walk off the line for an unscheduled prayer
break, and the second time, they would be terminated. (Filing No. 417 at 26.)
36
The parties also disagree about whether JBS knew whether Somali Muslims
believed there was less than a 45 minute window for praying after sunset. (See
Filing No. 346 at 15; Filing No. 417 at 27.)
It is not feasible or advisable to outline every disputed material fact that remains
at issue in the EEOC’s reasonable accommodation claim. In support of their respective
motions and responses, the parties have submitted over 600 “statements of undisputed
facts,” many of which rely on the credibility of dozens of deposed witnesses, and the
weighing of a large amount of evidence. Where such credibility issues are key factors,
summary judgment is generally inappropriate. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986); Keys v. Lutheran Family & Children's Services of Missouri, 668
F.2d 356, 358 (8th Cir. 1981). Courts do not treat summary judgment as if it were a
paper trial. Archer Daniels Midland Co. v. Eco, Inc., 821 F. Supp. 2d 1083, 1093 (S.D.
Iowa 2011). Thus, a “district court's role in deciding the motion is not to sift through the
evidence, pondering the nuances and inconsistencies, and decide whom to believe.”
Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). The Court's job is
only to decide, based on the evidence submitted, whether there really is any material
dispute of fact that still requires a trial. See id. (citing Anderson, 477 U.S. at 249, and 10
Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 2712 (3d ed.
1998)). The Court concludes that issues of fact remain about the EEOC’s reasonable
accommodation claim. Accordingly, JBS’s Motion for Summary Judgment on this issue
is denied, and the EEOC’s Motion for Summary Judgment is denied in its entirety.
III.
Pattern or Practice of Unlawful Termination and Retaliation
37
The Court concludes that the EEOC cannot establish a pattern or practice of
unlawful termination or retaliation based on JBS’s isolated termination of 80 Somali
Muslim employees. To succeed on a pattern-or-practice claim, the EEOC is required
“to prove more than the mere occurrence of isolated or ‘accidental’ or sporadic
discriminatory acts.” Teamsters, 431 U.S. at 336. In other words, in order to prove a
pattern or practice of discrimination, plaintiffs must prove that unlawful discrimination is
“the company's standard operating procedure,” Teamsters, 431 U.S. at 336. As the
Supreme Court has explained, “it must be established by a preponderance of the
evidence that ‘[the impermissible] discrimination was the company's standard operating
procedure-the regular rather than the unusual practice.” Cooper v. Federal Reserve
Bank of Richmond, 467 U.S. 867, 875 (1984). Multiple courts have recognized that
multiple acts of discrimination are required to establish a pattern or practice.
For
example, in Sperling v. Hoffmann-La Roche, Inc., 924 F. Supp. 1346, 1364 (D.N.J.
1996), the court determined that no reasonable jury could find that an employer
engaged in a pattern or practice of discrimination under the ADEA in conducting a onetime mass reduction in force. The court reasoned that “pattern-or-practice claims are
only appropriate where the class plaintiffs seek to enjoin the defendant from engaging in
existing or threatened discriminatory behavior and because a “one-shot” event cannot
constitute a pattern or practice of discrimination.” Id. Similarly, in Oinonen v. TRX, Inc.,
3:09CV1450-M, 2010 WL 396112 (N.D. Tex. Feb. 3, 2010), the plaintiffs provided
allegations related to a single mass layoff. The court concluded that a single event was
insufficient to demonstrate that unlawful discrimination was the company’s standard
38
operating procedure rather than an isolated event. Id. (citing Cooper, 467 U.S. 867,
875).
The Court finds the reasoning in these cases persuasive as applied to the
undisputed facts in this case. The EEOC does not allege that JBS adopted a declared,
discriminatory termination policy, nor does it adequately connect the terminations to an
unstated discriminatory policy. The mass termination of 80 Somali Muslims serves as
the sole basis for the EEOC’s pattern-or-practice claims of unlawful termination and
unlawful retaliation.
Although the EEOC refers to the mass termination as “eighty
decisions to terminative eighty Somali Muslim employees,” it is undisputed that mass
termination was a single action in response to the events of September 18, 2008.
Nevertheless, the EEOC claims that JBS had a pattern and practice because “[t]his
decision-making is repeated and consistent discriminatory treatment that qualifies as a
pattern or practice—regardless whether it happened in a single day or over several
days or weeks.” (Filing No. 417 at 186). However, the EEOC provides no evidence that
JBS terminated Somali Muslims as a matter of pattern or practice. The Court concludes
as a matter of law that the single mass termination is insufficient to establish a pattern
or practice of unlawful termination or retaliation.
The EEOC attempts to interject evidence of mass terminations that occurred at
JBS’s Greely, Colorado, Facility a few days before the mass terminations at the Grand
Island Facility, suggesting that the multiple mass terminations demonstrate a pattern.
The incidents in the Greely, Colorado, Facility are the subject of a parallel case in the
United States District Court, District of Colorado. See generally EEOC v. JBS USA,
39
LLC, No. 10-CV-02103-PAB-KLM, at Filing No. 1(D. Colo. Aug. 8, 2011).9 The EEOC’s
Amended Complaint does not reference JBS’s Greely, Colorado, facility, and the basis
for its claims arise exclusively in the Grand Island Facility. (See Filing No. 99.) The
EEOC chose to bring separate actions for each facility in separate forums, and now
apparently seeks to use evidence from the Colorado action to support its pattern-orpractice claims in this case. The Court concludes that its analysis should not include
evidence from the Greely, Colorado Facility. As of the writing of this Memorandum and
Order, the case in Colorado remains in the discovery phase.
The EEOC has not
provided sufficient evidence to show that the events in Greely, Colorado, occurred
under the same circumstances as the events in Grand Island. Allowing the EEOC to
proceed to trial based in part on evidence from pertaining to the Colorado case before
such evidence has been fully developed would be unfairly prejudicial to JBS, particularly
where JBS had no notice that it would need to defend against claims in the Colorado
case in this action. Accordingly, the Court will not consider evidence from the facility in
Greely, Colorado.
The EEOC also cites Ste. Marie v. E. R. Ass'n, 650 F.2d 395, 406 (2d Cir. 1981),
for the proposition that it can sustain its pattern or practice claims based on a single
occurrence.
In Ste. Marie, the court held that two alleged instances of sex
discrimination by an employer when hiring for managerial positions was insufficient to
support inference of pattern or practice. Id. The court noted that while “[w]hile the
definition of a pattern or practice is not capable of a precise mathematical formulation, .
9
On its own motion, the Court takes judicial notice of the parallel proceedings before the District
of Colorado.
40
. . more than two acts will ordinarily be required.”
Id. (internal citations omitted).
Despite the holding, the EEOC points to the court’s statement that “[i]f there were
evidence that a policy of discrimination had been adopted, perhaps two or even one
confirmatory act would be enough.” Id.
The EEOC alleges that JBS “made a policy choice at the corporate level to
terminate dozens of Somali Muslims who engaged in work stoppages over the prayer
issue but not to terminate dozens, even hundreds, of Hispanic/Catholic employees who
engaged in the same or similar conduct -- work stoppages.” Even if JBS’s actions were
discriminatory, the EEOC has not demonstrated that the terminations were more than a
single event. Such a one-time occurrence is insufficient to demonstrate JBS’s standard
operating procedure, or show a pattern or practice. Such a ruling does not preclude
arguments in Phase II that JBS’s actions were discriminatory. Accordingly, the Court
concludes the EEOC has not established a pattern or practice of unlawful termination,
or unlawful retaliation.
CONCLUSION
For the reasons stated above, the Court concludes that the EEOC has met the
procedural requirements for bringing suit. Material issues of fact remain concerning
whether JBS engaged in a pattern or practice of denying reasonable accommodation to
its aggrieved Somali Muslim employees’ requests for break times to pray. Finally, the
Court concludes the EEOC has failed as a matter of law to establish a pattern or
practice of unlawful termination or retaliation in violation of Title VII. Accordingly,
IT IS ORDERED:
41
1.
The Motion for Summary Judgment (Filing No. 342) filed by Defendant
JBS USA, LLC f/k/a JBS Swift & Co., a/k/a Swift Beef Company (“JBS”) is
granted in part, as follows:
a.
The Equal Employment Opportunity Commission’s (“EEOC”) claims
that JBS engaged in a pattern or practice of unlawful termination
based on religion and/or national origin are dismissed, with
prejudice;
b.
The EEOC’s claims that JBS engaged in a pattern or practice of
unlawful retaliation for engaging in protected activity in violation of
Title VII are dismissed, with prejudice;
c.
2.
JBS’s Motion is otherwise denied; and
The Motion for Partial Summary Judgment (Filing No. 343) Filed by
Plaintiff Equal Employment Opportunity Commission, is denied.
Dated this 12th day of April, 2013.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
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