Table of Contents

Table of Authorities

INTRODUCTION

Argument

I.      Center One has not established as a matter of law that its verification requirement was reasonable.

II.     Center One’s arguments do not undermine the prima facie case established in EEOC’s opening brief.

A.       A jury could find Center One constructively discharged Ford.

B.        A jury could find Center One altered the conditions of Ford’s employment when it assigned him attendance points for observing religious holy days.

Conclusion

Certificate of Compliance

Certificate of SERVICE

 

No. 22-2943, 22-2944

 


IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

         Plaintiff-Appellant,

 

and

 

DEMETRIUS FORD,

         Intervenor-Appellant,

 

v.

 

CENTER ONE, LLC and CAPITAL MANAGEMENT SERVICES, L.P.,

Defendants-Appellees.

 


On Appeal from the United States District Court

for the Western District of Pennsylvania

Case No. 2:19-cv-01242

 


REPLY BRIEF OF THE U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION AS APPELLANT


 


GWENDOLYN YOUNG REAMS

Acting General Counsel

 

JENNIFER S. GOLDSTEIN

Associate General Counsel

 

ANNE NOEL OCCHIALINO

Assistant General Counsel

 

GEORGINA C. YEOMANS

Attorney

 


EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

202-921-2748

georgina.yeomans@eeoc.gov



Table of Contents

 

Table of Authorities. ii

Introduction. 1

Argument 3

I....... Center One has not established as a matter of law that its verification requirement was reasonable. 3

II...... Center One’s arguments do not undermine the prima facie case established in EEOC’s opening brief. 12

A..... A jury could find Center One constructively discharged Ford. 13

B...... A jury could find Center One altered the conditions of Ford’s employment when it assigned him attendance points for observing religious holy days. 25

Conclusion. 28

Certificate of Compliance. 29

Certificate of Service. 31

 


 

Table of Authorities      

Cases

Adams v. Anne Arundel Cnty. Pub. Schs.,
789 F.3d 422 (4th Cir. 2015)............ 26

Adeyeye v. Heartland Sweeteners, LLC,
721 F.3d 444 (7th Cir. 2013).............. 8

Dawson v. Wash. Gas Light Co.,
No. 1:18-cv-971, 2019 WL 4307865 (E.D. Va. Sept. 9, 2019).............. 26, 27

Dominici v. Reading Hosp./Tower Health,
No. 5:18-cv-04181, 2020 WL 2898658 (E.D. Pa. June 3, 2020).............. 26, 27

Duffy v. Paper Magic Grp., Inc.,
265 F.3d 163 (3d Cir. 2001)....... 20, 21

EEOC v. Consol Energy, Inc.,
860 F.3d 131 (4th Cir. 2017)............ 21

EEOC v. Ithaca Indus., Inc.,
849 F.2d 116 (4th Cir. 1988)............ 11

Gray v. York Newspapers, Inc.,
957 F.2d 1070 (3d Cir. 1992)........... 24

Laster v. City of Kalamazoo,
746 F.3d 714 (6th Cir. 2014)............ 23

Mathis v. Christian Heating & Air Conditioning, Inc.,
158 F. Supp. 3d 317 (E.D. Pa. 2016) 22

Meditz v. City of Newark,
658 F.3d 364 (3d Cir. 2011)............. 17

Pa. State Police v. Suders,
542 U.S. 129 (2004).......................... 20

Shelton v. Univ. of Med. & Dentistry of N.J.,
223 F.3d 220 (3d Cir. 2000)............... 8

Spencer v. Wal-Mart Stores, Inc.,
469 F.3d 311 (3d Cir. 2006)............. 20

Young v. Sw. Sav. & Loan Ass’n,
509 F.2d 140 (5th Cir. 1975) 14, 21, 22, 23

Other Authorities

29 C.F.R. pt. 1630, app. § 1630.9......... 10

EEOC Compliance Manual (Jan. 15, 2021), https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination

.... § 12-I-A-3........................................... 9

.... § 12-IV-A-2......................................... 8

 



INTRODUCTION

In this religious discrimination case, Center One does not deny that Charging Party Demetrius Ford sincerely adhered to Messianic Judaism, nor that Ford notified Center One that his religion required that he abstain from work on certain holy days. Center One contests only that it subjected Ford to an adverse employment action arising from the conflict between his job and his religion.

But, as EEOC argued in its opening brief, a jury could reasonably conclude that Ford suffered two adverse employment actions that arose from Center One’s failure to reasonably accommodate Ford’s religious practice. First, a jury could find that Ford requested an accommodation and that Center One refused to provide it until Ford met its unreasonable verification requirement. Because Ford could not meet this requirement, and because Center One continued to insist on the verification after Ford said he could not provide it, Ford resigned based on his reasonable conclusion that Center One required him to choose between practicing his religion and keeping his job. Thus, a jury could find Center One constructively discharged Ford.

A jury could also conclude, we argued, that Center One altered Ford’s employment conditions when it assigned him attendance points for missing work to observe his religious holy days. Ford accrued enough attendance points to merit termination, according to Center One’s handbook. A jury could reasonably find that Ford advanced along Center One’s progressive discipline ladder, and that he labored under materially different conditions than his peers who could afford some leeway with their attendance and punctuality before facing termination.

Center One tries to evade this result by asking this Court to ignore persuasive case law addressing parallel circumstances, and by crafting its own narrative, in which Center One would have accommodated Ford had he simply divined an unwritten, unspoken path to successfully requesting an accommodation. In service of its argument, Center One invokes inapt legal principles and ignores record evidence, including its own handbook, testimony and contemporaneous emails from its own representatives, and testimony from Ford.

At trial, Center One will be free to argue that the jury should discount the evidence that contradicts Center One’s arguments. But here, on a review of summary judgment, Center One and this Court must confront all the evidence, construed in the light most favorable to the EEOC. When properly construed, the record reveals a myriad of material factual disputes that should have precluded the district court from granting summary judgment for Center One. The district court’s summary judgment decision should therefore be vacated.

Argument

I.          Center One has not established as a matter of law that its verification requirement was reasonable.

To start, we clarify that although Center One claims (at page 43) that it merely requested, but did not require, Ford to provide official verification, the record would easily permit a jury to find otherwise. See, e.g., JA.431 (“Demetrius was once again told that if we receive the documentation, we will relieve any applicable attendance points and will be able to accommodate him going forward.”); JA.433 (Altman told Ford that “if he could not provide the letter th[e]n we could not accommodate that religion.”); JA.220-21 (Brugos testifying she could not accept the calendar because “[i]t was not what the company policy stated I needed from him at the time”); JA.213-14 (Brugos testifying that any employee requesting accommodation would “need to provide a letter on an official letterhead from the church, congregation, religious entity” before being accommodated).

Regarding the merits of its requirement, Center One has offered shifting post-hoc rationales for requiring that Ford provide an official verification from a congregation before it would accommodate him, including a new rationale on appeal. But none of its explanations merit concluding as a matter of law that it acted reasonably.

         In the district court Center One defended its verification requirement as reasonable “in light of the timing of Ford’s request” for accommodation. R.117 at 4; see also R.103 at 20 (Center One describing the request as reasonable because “Center One had no advance notice as to Ford’s work schedule conflict,” “Ford did not make the request for religious accommodation until after he accrued a number of attendance points,” and “Ford was still in his probationary period”). EEOC explained in its opening brief why that explanation contradicts the record evidence. See EEOC Br. at 36-38.

On appeal, Center One abandons the timing justification and concedes that it could not “insist on a specific form of notice” once Ford notified Center One of his need for an accommodation. Resp. Br. at 47 & n.4 (conceding “employers ‘may not insist on a specific form of notice if the facts otherwise show the employee conveyed enough information’” (quoting EEOC Br. at 27)). It argues nonetheless that its requirement was a reasonable attempt to “ascertain the specific contours of any reasonable accommodation” to clarify which days Ford would need off. Resp. Br. at 47. This post-hoc contours rationale likewise finds no basis in either the record or the law.

Starting with the record, Center One does not identify any evidence that Ford expressed confusion to anyone at Center One in 2016 about what days he needed off. It relies instead on Ford’s testimony, four and a half years later, in which he expressed confusion about the exact dates on which he observed holy days in 2016. Id. The evidence regarding what actually happened in 2016 shows that Ford knew the dates that he needed to abstain from work, that he gave advance notice as to those dates, and that his observance of Rosh Hashanah and Yom Kippur conformed with the dates listed on the calendar he provided to Center One.

Ford testified that he knew “within a week” of Rosh Hashanah when the holiday would take place. JA.511-13. Accordingly, Ford told Altman one or two days in advance that he needed to miss work on October 3 and 4 to observe Rosh Hashanah. JA.498-99. Ford “became aware of the exact dates” of the remainder of the imminent holy days after he contacted Rock of Ages and obtained a calendar from the congregation, which was no later than October 4. JA.511-13; see also JA.621-24 (October 4 email from Rock of Ages to Ford). When asked, Ford gave Brugos the calendar of holy days. That calendar confirmed that Rosh Hashanah was observed on the 3rd and 4th (the dates Ford was absent), and gave Center One notice that Yom Kippur began at sunset on the 11th and required Ford to abstain from work on the 12th (which he later did). JA.624; JA.631. Brugos rejected the calendar not because Ford equivocated about its accuracy or because it differed from the dates Ford had already observed for Rosh Hashanah, but because “anyone could print” it. JA.219-221; JA.483; JA.528-29. Center One representatives even acknowledged, after the fact, that the calendar Ford gave Brugos provided enough information to accommodate Ford because it “has the specific days when needed off.” JA.404-05, JA.317 (Fulciniti testifying the calendar “would have been sufficient” had Ford submitted it when he was hired).

Center One’s citation to Ford’s 2021 deposition testimony, in which he (inaccurately) recalled observing holy days on dates different from those listed on the calendar he gave to Brugos, is disingenuous given the record evidence showing that Ford conformed his practice to the printed calendar and did not equivocate in 2016 about the dates he needed to miss work. And Center One’s claim that EEOC presented a “gross mischaracterization of the facts of record” in arguing that Ford gave advance notice of the dates he would need off work is baffling, given the record evidence cited above, throughout this brief, and in our opening brief establishing that he did just that. See Resp. Br. at 45.

Center One also claims that it was entitled to require verification because Ford “did not follow Center One’s established procedure for requesting time off on October 3 and 4, 2016.” Resp. Br. at 46. That is untrue. The record shows Ford told Altman before Rosh Hashanah that he would be absent on October 3 and 4 for religious observance. JA.498-99.[1]  He thus complied with the procedure Center One’s corporate representative testified was in place in 2016. See JA.394-96. Because Ford sufficiently described his religious practice, through his conversations with Altman and through the calendar, Center One could not reasonably insist on congregation verification. See Shelton v. Univ. of Med. & Dentistry of N.J., 223 F.3d 220, 223, 225 (3d Cir. 2000) (holding the employer may not demand an official pastor letter when the employee had sufficiently self-described her religious practice); see also Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 450 (7th Cir. 2013) (“Title VII has not been interpreted to require adherence to a rigid script to satisfy the notice requirement.”).  

Turning to the law, Center One does not defend the district court’s citation to section 12-IV-A-2 of EEOC’s Compliance Manual, which allows an employer, when it has a “bona fide doubt as to the basis for an accommodation request,” “to make a limited inquiry into the facts and circumstances of the employee’s claim that the belief or practice at issue is religious and sincerely held, and that the belief or practice gives rise to the need for accommodation.” EEOC Compliance Manual § 12-IV-A-2 (Jan. 15, 2021), https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination. In any event, EEOC’s opening brief explained why that section is inapt. EEOC Br. at 35-36.

Instead, Center One argues that its official verification requirement is justified by section 12-I-A-3 of the Compliance Manual. Resp. Br. at 43-44. That section provides that if an employer “has an objective basis for questioning either the religious nature or the sincerity of a particular belief, observance, or practice, the employer would be justified in seeking additional supporting information.” EEOC Compliance Manual § 12-I-A-3. But Center One does not argue on appeal that it had an objective basis for questioning the religious nature or sincerity of Ford’s belief, observance, or practice. Center One therefore cannot rely on this provision of the Compliance Manual to justify its actions.

Indeed, as EEOC’s opening brief explained, the record evidence shows that Center One did not doubt Ford’s sincerity. See JA.217 (Brugos testifying she did not question Ford’s sincerity); JA.374, 388 (Center One’s corporate representative testifying that Center One did not question employees’ religious beliefs, including Ford’s). The verification requirement was based on a blanket policy, not specific concerns related to Ford. See EEOC Br. at 37; JA.213-14 (Brugos testifying that any employee requesting accommodation would be required to produce “a letter on an official letterhead from the church, congregation, religious entity” before being accommodated); JA.220-21 (Brugos testifying she could not accept the calendar because “[i]t was not what the company policy stated I needed from him at the time”); JA. 430-41 (Brugos acknowledging Ford’s calendars, but concluding “we had to remain consistent with our policy and needed the documentation with an official letterhead before accommodating Demetrius’[s] needs”). In point of fact, Brugos characterized the email from Ford’s prospective congregation as “better” than the calendar of holy days Ford initially provided because it “mov[ed] in the right steps of actually obtaining the letter on official letterhead.” JA.242. Center One wanted an “official letterhead” for the sake of complying with its blanket, unwritten policy, not because it doubted Ford’s sincerity.

Center One’s analogy to the Americans with Disabilities Act (ADA) context also fails.  Center One cites (at page 48), 29 C.F.R. pt. 1630, app. § 1630.9, which requires an employer facing a request for a disability-related accommodation to “consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual’s disability and how those limitations could be overcome with a reasonable accommodation.” Putting aside important differences between employers’ duties under Title VII and the ADA, the fact that Center One knew Ford was a Messianic Jew who needed to abstain from work on the specific holy days Ford identified is dispositive.  Center One’s rigid insistence that Ford meet an official letter requirement Center One knew he could not meet, and then using his inability to produce that letter against him despite knowing which dates he needed off from work, does not constitute consulting or cooperating with Ford to reach a reasonable accommodation. See JA.248-50 (Center One knew as of Ford’s Employment Review Committee meeting on October 12 that Ford could not provide a congregation letter, but continued to insist upon it); JA.431 (“PattiSue [O’Malley] then asked if it was a requirement to go to a place of worship, then why has he not gone to his new congregation in order to observe the holidays?”); cf. EEOC v. Ithaca Indus., Inc., 849 F.2d 116, 118 (4th Cir. 1988) (Title VII violated where employer “made no specific effort to accommodate” employee’s religious practice).

Ultimately, if Center One was simply trying to “gather information” to pin down the dates Ford needed to miss work to “manage employee attendance and coverage,” as it now claims, Resp.  Br. at 46, 49, it could have relied on the calendar Ford gave to Center One listing holy days for which “no work is permitted.” JA.624. To the extent Center One suspected that calendar varied from Ford’s practice, Center One could have asked Ford directly to state or write down the dates he needed to miss work. Certainly, a jury could reasonably conclude that Center One acted unreasonably when it insisted on official congregation verification, particularly after Center One knew Ford could not provide that verification.

II.       Center One’s arguments do not undermine the prima facie case established in EEOC’s opening brief.

Nowhere in its brief does Center One dispute that EEOC established the first two prongs of a prima facie religious discrimination case: that Ford sincerely adhered to Messianic Judaism and that Ford notified Center One of the conflict between his religious practice and his work obligations. We therefore turn to the sole disputed prong: whether Ford experienced an adverse action because of the conflict between his religious practice and his work obligations. As established in EEOC’s opening brief, a jury could conclude that Center One constructively discharged Ford. A jury could also conclude that Center One altered Ford’s employment conditions when it assigned him attendance points for his religiously compelled absences. In arguing to the contrary, Center One misapplies the applicable legal standards and construes disputed facts in its favor.

A.       A jury could find Center One constructively discharged Ford.

As discussed above and in EEOC’s opening brief (pages 39-49), a jury could reasonably conclude that Ford resigned because Center One required that he provide a congregation letter verifying his religious practice before it would accommodate him; Ford could not obtain that letter, which Center One knew; and Center One had told Ford that he could not afford any further unexcused absences. A jury could therefore reasonably conclude that Center One put Ford to the intolerable choice of abandoning his faith’s requirements or losing his job.  

Center One counters that Ford resigned voluntarily, based on his own “subjective assumptions,” and “[b]efore any determination had been made concerning his request for religious accommodation.” Resp. Br. at 26, 32. But Center One does not explain what “determination” was still pending at the time Ford resigned. The record shows that Center One had already decided that it would not accommodate Ford absent an official verification, which Center One knew Ford could not provide, and that it never wavered from that determination. By Ford’s October 12 ERC, Brugos testified, Center One knew Ford was not a member of a congregation, and that there was no congregation leader that could provide him an official verification letter. JA.248-50. And yet, at the ERC, Center One continued to insist Ford meet that requirement before it would accommodate him, id.; see also JA.244, 431, 560, and told Ford that he could afford no more unexcused absences, JA.488; see also JA.353 (Fulciniti testifying that after ERC, Center One was “just going to keep his attendance points as was, at that time, unless he had anything else to submit”). When he resigned, Altman told Ford explicitly that “if he could not provide the letter th[e]n we could not accommodate that religion.” JA.433; see also JA.353. The parties were at an impasse that only Center One could clear. As the Fifth Circuit said in Young v. Southwestern Savings & Loan Association, it would be “too nice a distinction” to say that Ford should have waited to be fired, rather than terminating his association with Center One once it became clear that Center One had no intention of accommodating his religious practice. 509 F.2d 140, 144 (5th Cir. 1975).

Center One claims that it “continued to work with [Ford] on his attendance.” Resp. Br. at 26. In support, Center One cites to inapt summary judgment filings in which it admits that Ford was in his transition period and that Center One assessed Ford five-and-a-half attendance points. Id. (citing JA.730 ¶ 8; JA.745-46 ¶ 69). Center One also cites documents discussing the purpose of ERC meetings generally, and Fulciniti’s testimony that Center One often tries to retain employees who have accrued termination-level attendance points by offering them a “last chance agreement,” though Center One did not offer one to Ford. Id. at 26-27 (citing JA.805 ¶ 152; JA.145; JA.335-36); see also JA.353-54. None of these documents supports the contention that Center One was in any way working with Ford, rather than insisting that he provide a verification letter before it would consider accommodating his religious practice. Moreover, Center One’s claim that it “wanted [Ford] to remain in its employ,” Resp. Br. at 27, is at least disputed, given that Center One made no move to stop Ford from resigning, even though he explicitly told Altman he was resigning because Center One refused to accommodate his religious practice. JA.433 (Ford told Altman “he could not continue to work for a company that did not accommodate his religious beliefs”); JA.684 (H.R. “accepted his voluntary resignation,” which he tendered “due to him not being able to provide proper documentation for his religion”); JA.647 (noting Ford resigned because he “could not provide proper documentation for [his] religion needed for Human Resources”); JA.497 (Ford testifying he told Altman he was resigning because he had more holy days coming up). A jury could easily conclude on this record that Center One wanted Ford out, not that it wanted him to stay.

Center One also declares that “no requested leave was ever denied to Ford. In fact, all dates that Ford requested off in observance of his religion were granted.” Resp. Br. at 28. This statement contradicts the record in several respects. First, it requires this Court to ignore (as Center One does, without explanation) Ford’s testimony that he told Altman in advance that he needed to miss work for Rosh Hashanah. See JA.498-99. see also Resp. Br. at 32 (claiming, incorrectly, that Ford “first alerted” Center One that he needed to abstain from work for Rosh Hashanah “on or about” October 7). It would also require the Court to ignore the permissible inference that Ford told Vaughn in advance of Rosh Hashanah that he would be absent, given Brugos’s statement that Vaughn told her at the beginning of October, “a few days” before October 5, that Ford required an accommodation. See JA.430; JA.528-29; EEOC Br. at 30. Despite that advance notice, Center One assessed Ford attendance points for his Rosh Hashanah absences, thereby denying his request for time off. This Court and Center One cannot ignore this evidence at summary judgment; instead, the evidence must be credited as true and justifiable inferences must be drawn in EEOC’s favor. See Meditz v. City of Newark, 658 F.3d 364, 369-70 (3d Cir. 2011).  

Second, crediting Center One’s claim that “no requested leave was ever denied to Ford” would require this Court to credit Center One’s apparent argument that Ford should have requested leave for holy days through the Temporary Schedule Change form (sometimes referred to in the record as “TSC”). See, e.g., Resp. Br. at 32 (“Ford was reminded of the company’s procedures for submitting a TSC Form.”); id. at 33 (“He was simply asked to abide by Center One’s procedures for requesting time off, and when he did so – said request was granted.” (emphasis omitted)); id. at 35 (“In the one instance in which Ford followed Center One’s procedures . . . the company granted his request and he was permitted the requested time off.”). But a jury could find the Temporary Schedule Change form was not the mechanism for requesting religious accommodation and could not be used to request time off.

The record shows that Center One had no written procedure for requesting time off for a religious accommodation. According to testimony from Center One’s corporate representative, which Center One does not confront or acknowledge, the company’s unwritten procedure required employees to notify H.R. or their supervisor as to their required accommodation. JA.394-96; see also JA.355-356 (Fulciniti testifying to same). Ford did just that at the start of his employment and then repeatedly thereafter. See EEOC Br. at 28-31.

By contrast, the evidence shows that a Temporary Schedule Change form could be used to shift an employee’s hours, not as a mechanism for an employee to miss work altogether. Brugos explained the distinction in her email to Szarowski, Hurtgam, and Altman, writing that she needed to figure out “how many days [Ford] needs to be off versus how many days we could do a TSC for (some of the holidays require him to be off all day and others state that he needs to stop working by ‘sun down’).” JA.529. Accordingly, Ford successfully used the form to shift his working hours on October 11, from his normal shift of 12:30 p.m.-9 p.m. to a modified 9 a.m.-5:30 p.m. shift so that he could observe Yom Kippur’s start at sunset. See JA.660 (Ford’s schedule change form); JA.480 (Ford testimony regarding TSC form); JA.623-24 (calendar Ford provided to Center One listing Yom Kippur on October 12 and noting “a holiday begins on the sunset of the previous day”); see also JA.477 (Ford testifying he explained to Vaughn, “I’m allowed to work up until sundown”). Despite Center One’s representations to the contrary, e.g., Resp. Br. at 33, 35-36, Ford worked a full day on October 11; he was not granted any “time off.”

Aside from inaccurately claiming that Ford used the form to successfully “request[] time off,” Resp. Br. at 33, Center One does not point to any evidence to back up its claim that the Temporary Schedule Change form “is to be used by any associate seeking a day off.” Resp. Br. at 35. Center One’s own handbook suggests the exact opposite. According to the handbook, a Temporary Schedule Change form may be used up to twice per month when an employee needs to “change” their “schedule,” for instance to accommodate a “personal appointment.” JA.162. The form itself asks employees to list their current schedule and then to list their requested temporary schedule. JA.660. An employee who requests an adjustment to their regular schedule without providing 48 hours’ notice via the Temporary Schedule Change form commits a “schedule switch” violation. JA.148. This violation also accrues when an employee fails to punch in before the start of their scheduled shift or punches out before their shift ends. JA.149. A “schedule switch,” like an early departure, results in one-half of an attendance point. JA.151.

The Temporary Schedule Change form was therefore not a solution to Ford’s accommodation problem. On the days that Ford was required to abstain from work altogether, rather than merely to wrap up his workday before sunset, shifting his working hours would in no way accommodate his religious practice.

Turning from the record to case law, we first point out that Center One’s opening definition of “constructive discharge as a ‘worse case scenario’ of harassment” is misplaced. See Resp. Br. at 24 (citing Pa. State Police v. Suders, 542 U.S. 129 (2004); Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311 (3d Cir. 2006); Duffy v. Paper Magic Grp., Inc., 265 F.3d 163 (3d Cir. 2001)). EEOC alleged that Center One constructively discharged Ford by making him choose between his religion and his job, not that Ford was harassed to the point that he was compelled to quit.[2]

Center One highlights the lack of binding authority from this Court confronting a scenario matching the theory EEOC alleged, in which an employee is forced to choose between his job and his religious practice. As we acknowledged in our opening brief, this Court has not decided a case with this precise factual pattern, and therefore has not had an opportunity to embrace this theory. EEOC Br. at 40-41. But, as we explained, other circuits presented with this fact pattern have provided persuasive reasoning that this Court should adopt. See EEOC v. Consol Energy, Inc., 860 F.3d 131 (4th Cir. 2017); Young, 509 F.2d 140.

Center One’s attempt to distinguish Consol Energy is unpersuasive, as it relies on its inaccurate claim that Ford provided no notice of his Rosh Hashanah absences until October 7. Resp. Br. at 32; see supra 16-17 and EEOC Br. at 28-31 (explaining the record shows otherwise). It also relies on the claim that the Temporary Schedule Change form was the appropriate mechanism for requesting religiously compelled days off, which, again, is incorrect. See supra 17-20. Center One uses this faulty premise to distinguish Mathis v. Christian Heating & Air Conditioning, Inc., 158 F. Supp. 3d 317 (E.D. Pa. 2016), as well. Resp. Br. at 32-33.

Center One tries to distinguish Young in a parenthetical by claiming that the plaintiff in Young “was told that the [objectionably religious staff] meetings were mandatory and asked to provide a letter of resignation,” whereas Ford was not asked to resign. Resp. Br. at 33. That argument ignores that Young’s supervisor asked for a resignation letter from her only after Young “advised [her supervisor] that she was checking out her cash drawer, turning in her keys, and leaving Southwestern,” i.e., after Young had stated that she would no longer work at Southwestern. 509 F.2d at 142. Young’s supervisor asked for an official letter communicating her resignation, and Young refused, maintaining that she was being fired. Her supervisor then “assured her that she was not being fired.” Id. Still, the Fifth Circuit found that Young was constructively discharged, given the reasonable inference she drew that if she could not attend the staff meetings, she would be discharged. Id. at 144. In reality, the facts in Young are strikingly similar to the facts at hand: An employee resigns after reasonably perceiving, based on her employer’s actions, that she will be fired if she continues to honor her faith.

Center One’s claim that Laster v. City of Kalamazoo, 746 F.3d 714 (6th Cir. 2014), supports the district court’s decision is misplaced. In that case, the Sixth Circuit held that a police officer who opted to retire before attending a disciplinary pre-determination hearing, at which he feared he might be fired and therefore lose his health insurance, was not constructively discharged. The plaintiff quit because he was under the impression that he would be fired at the pre-determination hearing, based on speculation by someone who had “no say in the decision-making process, and was not privy to any inside information.” Id. at 728. By contrast, Ford resigned based on information he received from human resources representatives—i.e., decisionmakers who were privy to inside information. It was reasonable for him to rely on that information in concluding that his job and his religious practice would not be reconciled before his next holy day.

Finally, Center One’s reliance on Gray v. York Newspapers, Inc., 957 F.2d 1070 (3d Cir. 1992), and its language discussing employee resignations over “frustrations, challenges and disappointments,” or “workplace grievance[s],” id. at 1083; Resp. Br. at 29, unduly minimizes the intolerable situation Ford faced. It reflects Center One’s consistent failure to recognize that Ford has a federal right to be free from religious discrimination in the workplace, which includes an obligation on Center One’s part to reasonably accommodate his religious practice absent undue hardship. Ford resigned not because he was frustrated, nor because he imagined some unlikely scenario in which Center One would terminate him for exercising his religion. Ford knew, because Center One representatives told him, that he could miss no more workdays without excuse. And he knew, because Center One representatives told him, that any absences for religious observance unaccompanied by a clergy letter would be unexcused. A reasonable jury could find he resigned based on a true and intolerable conflict between his religious practice and keeping his job.

B.        A jury could find Center One altered the conditions of Ford’s employment when it assigned him attendance points for observing religious holy days.

EEOC also established the third prima facie prong by showing that Center One altered the conditions of Ford’s employment when it assigned him termination-level attendance points. As EEOC explained in its opening brief, and as EEOC has consistently argued throughout this litigation (not, as Center One says, for the first time on appeal, Resp. Br. at 18), Ford’s attendance points made him eligible for termination, rendering his working conditions materially different from a coworker without attendance points, who could therefore afford to miss a day of work or show up late without being fired. EEOC Br. at 50-55; R.110 at 2-5.

As EEOC acknowledged in its opening brief, this Court has not confronted the exact factual scenario presented here, in which an employee accumulates enough points to merit termination. It is therefore unsurprising that the case law available is either distinguishable or non-binding. Center One’s attempts to explain away the relevant cases, however, overstate the pertinent differences between those cases and this one.

Contrary to Center One’s argument, the relevant language in Dominici v. Reading Hospital/Tower Health, No. 5:18-cv-04181, 2020 WL 2898658 (E.D. Pa. June 3, 2020), is not dicta. In Dominici, the court held that, because the written warnings the plaintiff received were part of a progressive discipline system, the warnings were themselves adverse. The plaintiff’s termination was also adverse. Id. at *16 (“The evidence therefore shows that the written warnings, in addition to Dominici’s termination, are adverse employment actions.”).

Similarly, in Dawson v. Washington Gas Light Co., No. 1:18-cv-971, 2019 WL 4307865 (E.D. Va. Sept. 9, 2019), the court held that the plaintiff’s “first-step written reprimand” may, standing alone, “be considered an adverse action” because it “move[d the] employee further up the steps” of the operative progressive discipline system. Id. at *5. To reach this result, the court drew upon the language from Adams v. Anne Arundel County Public Schools, 789 F.3d 422, 429 (4th Cir. 2015), that EEOC cited in its opening brief (at page 51).

The fact the plaintiffs in Dominici and Dawson were ultimately fired established that the discipline systems in those cases were progressive, which informed the courts’ judgment that the individual steps in the progressive system were also adverse. Here, a jury could reasonably find that Center One’s point system was progressive, given the clear language in the employee handbook and testimony from Center One representatives. See JA.150, 152, 640; see also JA.230 (Brugos confirming ERC meeting is a “step in the discipline process,” and “corresponded with one of the final steps of discipline before termination”); EEOC Br. at 52-53 (discussing Center One representative testimony). If it was, this case aligns comfortably with Dominici and Dawson in that the steps in the progressive system are adverse.

More importantly, there is no barrier in this Court’s precedent to holding that Center One altered Ford’s working conditions when it assigned him termination-level attendance points. And, as a matter of common sense, an employee who can afford no more missteps labors under materially different circumstances than his peers. See EEOC Br. at 53-54.

Conclusion

For the foregoing reasons and the reasons in EEOC’s opening brief, the judgment of the district court should be vacated and the case remanded for further proceedings.

 

Respectfully submitted,

 

GWENDOLYN YOUNG REAMS

Acting General Counsel

 

JENNIFER S. GOLDSTEIN

Associate General Counsel

 

ANNE NOEL OCCHIALINO

Assistant General Counsel

 

s/Georgina C. Yeomans

GEORGINA C. YEOMANS

Attorney

Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., 5th Floor

Washington, D.C. 20507

202-921-2748

georgina.yeomans@eeoc.gov

 

 


 

Certificate of Compliance

Pursuant to 3d Cir. L.A.R. 28.3(d) & 46.1(e), I certify that, as an attorney representing an agency of the United States, I am not required to be admitted to the bar of this Court. See 3d Cir. L.A.R. 28.3, comm. cmt. I also certify that all other attorneys whose names appear on this brief likewise represent an agency of the United States and are also not required to be admitted to the bar of this Court. See id.

I certify that this brief complies with the type-volume limit of Federal Rules of Appellate Procedure 28(c) and 32(a)(7)(B)(ii) because it contains 5,397 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(f). This brief also complies with the typeface and type-style requirements of Federal Rule of Appellate Procedure 32(a)(5)-(6) because it was prepared using Microsoft Word for Office 365 ProPlus in Century 14-point font, a proportionally spaced typeface.

Pursuant to 3d Cir. L.A.R. 31.1(c), I certify that the text of the electronically filed version of this brief is identical to the text of the hard copies of the brief that will be filed with the Court. I further certify pursuant to 3d Cir. L.A.R. 31.1(c) that, prior to electronic filing with this Court, I performed a virus check on the electronic version of this brief using Trend Micro Office Scan, version 14.0.8515, and that no virus was detected.

 

                                                      /s Georgina C. Yeomans

                                                               GEORGINA C. YEOMANS

Dated: June 1, 2023



 

Certificate of SERVICE

I certify that on June 1, 2023, I electronically filed the foregoing brief in PDF format with the Clerk of Court via the appellate CM/ECF system.  I certify that all counsel of record are registered CM/ECF users, and service will be accomplished via the appellate CM/ECF system.

/s Georgina C. Yeomans

                                                      GEORGINA C. YEOMANS

 



[1] A jury could also find that Ford gave Vaughn advance notice as well, given Brugos’s statement that Vaughn told her Ford needed an accommodation in “the beginning of October,” “a few days” before October 5. See JA.430; JA.528-29; EEOC Br. at 30.

 

[2] EEOC and Ford cited Duffy in their opening briefs merely for the proposition that the Clowes factors are non-exhaustive. EEOC Br. at 46; Ford Br. at 23.