_______________________________________________________

IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
_______________________________________________________

Nos. 08-1096 & 08-1417
_______________________________________________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellee,

SOUTHWESTERN BELL, TELEPHONE, L.P.,
d/b/a AT&T SOUTHWEST & SBC COMMUNICATIONS,
Defendant-Appellant.

_______________________________________________________

On Appeal from the United States District Court
for the Eastern District of Arkansas, Jonesboro Division
Case No. 3:06-CV-176 (JLH)
_______________________________________________________

BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION AS APPELLEE
_______________________________________________________

RONALD S. COOPER
General Counsel

VINCENT J. BLACKWOOD
Acting Associate General Counsel

LORRAINE C. DAVIS
Assistant General Counsel

ANNE NOEL OCCHIALINO
Attorney

EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L St., N.W.
Washington, D.C. 20507
(202) 663-4724
annenoel.occhialino@eeoc.gov

SUMMARY OF CASE AND REQUEST FOR ORAL ARGUMENT

This is an appeal from a jury verdict in the Commission's favor on its claim
that AT&T discriminated against two charging parties based on their religion when
it refused to accommodate their request - made six months in advance - for a
single day off to attend an annual religious convention and then fired them when
they attended it. See 42 U.S.C. §§ 2000e-2(a), 2000e(j). Based on the jury's
verdict, the district court entered judgment in the Commission's favor and awarded
back pay and compensatory damages to the charging parties. The district court
subsequently entered an order requiring reinstatement and front pay until then.
AT&T failed to file any post-judgment motions but did timely file a notice of
appeal.<1>
In the Commission's view, oral argument is unnecessary to resolve the
issues in this appeal because AT&T cannot appeal from the summary judgment
ruling and its failure to file any post-judgment motions precludes it from
challenging the district court's refusal to grant its Rule 50(a) motion for judgment
as a matter of law. If, however, this Court determines that AT&T did not waive its
arguments, the Commission requests that the argument be allotted 30 minutes of
time (15 minutes per side) to enable the parties to address the merits of AT&T's
appeal.

TABLE OF CONTENTS

SUMMARY AND STATEMENT REGARDING ORAL ARGUMENT....................................... i

TABLE OF CONTENTS ..................................................................ii

TABLE OF AUTHORITIES ............................................................. iv

STATEMENT OF JURISDICTION.......................................................... 1

STATEMENT OF THE ISSUES............................................................. 1

STATEMENT OF THE CASE .............................................................. 2

1. Nature of the Case and Course of Proceedings.................................2

2. Statement of the Facts ................................................. 4

3. District Court Decision................................................... 16

SUMMARY OF ARGUMENT .............................................................. 17

ARGUMENT .......................................................................... 19

I. BECAUSE AT&T CANNOT APPEAL FROM THE DENIAL OF
SUMMARY JUDGMENT AND FAILED TO RENEW ITS MOTION FOR
JUDGMENT AS A MATTER OF LAW AFTER TRIAL OR TO FILE A
MOTION FOR A NEW TRIAL, THIS COURT IS PRECLUDED FROM
CONSIDERING AT&T'S ARGUMENTS ON APPEAL. ....................................... 19

A. AT&T cannot appeal from the denial of summary judgment........ 19
B. Because AT&T failed to file any post-trial motions, it is not entitled
to judgment as a matter of law, or to a new trial............................ 20

TABLE OF CONTENTS (con't)
II. EVEN IF THIS COURT CAN CONSIDER AT&T'S ARGUMENT THAT
IT WAS ENTITLED TO JUDGMENT AS A MATTER OF LAW BASED
ON INSUFFICIENCY OF THE EVIDENCE, THIS COURT SHOULD
AFFIRM THE JUDGMENT AWARDING BACK AND FRONT PAY
BECAUSE THE JURY'S VERDICT WAS NOT A MANIFEST
MISCARRIAGE OF JUSTICE........................................................... 24

A. The evidence does not compel a jury finding that Gonzalez and Owen
lacked a sincerely held religious belief. ....................................... 25

B. The evidence supports the jury's finding that AT&T failed
to show that accommodating Gonzalez and Owen would
have imposed an undue hardship................................. 31

C. Because the jury reasonably determined that Gonzalez and Owen had
mitigated their damages, the award of back and front pay should be
affirmed...................................................................... 38

CONCLUSION ....................................................................... 44

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

FEDERAL CASES

Barnes v. Rivas, 207 Fed. Appx. 376, 378 (5th Cir. Nov. 17, 2006).................43

Bergman v. Bailey Controls Co., No. 89-3622,
1990 WL 140585 (6th Cir. Sept. 27, 1990)................................... 41

Broadus v. O.K. Indus, Inc., 238 F.3d 990 (8th Cir. 2001).............20, 24, 30, 31

Brown v. Polk County, Iowa, 61 F.3d 650 (8th Cir. 1995)............... 1, 32, 36, 37

Burns v. Southern Pacific Trans. Co.,
589 F.2d 403 (9th Cir. 1978)............................................. 37

Canny v. Dr. Pepper/Seven-Up Bottling Group, Inc.,
439 F.3d 894 (8th Cir. 2006).................................................43

Carden v. Westinghouse Elec. Corp., 850 F.2d 996 (3d Cir. 1988).................. 41

Chalfant v. Titan Distrib., 475 F.3d 982 (8th Cir. 2007)......................... 43

Cook v. Chrysler Corp., 981 F.2d 336 (8th Cir. 1993)..............................35

Eaddy v. Yancey, 317 F.3d 914 (8th Cir. 2003)..................................1, 19

Federal Ins. Co. v. HPSC, 480 F.3d 26 (1st Cir. 2007)......................... 23

HI Ltd. Partnership v. Winghouse of Florida, Inc.,
451 F.3d 1300 (11th Cir. 2006)............................................. 22

Hartley v. Dillard's, Inc., 310 F.3d 1054 (8th Cir. 2002).................... 39, 41

Henderson v. Simmons Foods, Inc.,
217 F.3d 612 (8th Cir. 2000)................................... 1, 39, 40, 43

Karjala v. Johns-Manville Prods. Corp.,
523 F.2d 155 (8th Cir. 1975)............................................. 21

Mathieu v. Gopher News Co., 273 F.2d 769 (8th Cir. 2001)......................... 40

Matos v. PNC Fin. Serv. Group,
2005 WL 2656675 (D.N.J. Oct. 17, 2005)..................................28, 30

Metro. Life Ins. Co. v. Golden Triangle,
131 F.3d 351 (8th Cir. 1997)............................................19, 20

Newhouse v. McCormick & Co., 110 F.3d 635 (8th Cir. 1997).................... 39, 40

Nitco Holding Corp. v. Boujikian, 491 F.3d 1086 (9th Cir. 2007).................. 23

Ollis v. HearthStone Homes, Inc., 495 F.3d 570 (8th Cir. 2007)............... 24, 25

Pearson v. Wellborn, 471 F.3d 732 (7th Cir. 2006).............................. 22

Quaring v. Peterson, 728 F.2d 1121 (8th Cir. 1984)................................30

Schooley v. Orkin Extermination, Co., Inc.,
502 F.3d 759 (8th Cir. 2006)............................................. 24

Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).......... 1, 32, 34, 35

Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc.,
546 U.S. 394 (2006)............................................. 1, 21, 22

Vetter v. Farmland Indus., Inc., 120 F.3d 749 (8th Cir. 1997)............... 1, 28

FEDERAL STATUTES

42 U.S.C. § 2000e(j).......................................................i, 24, 31

42 U.S.C. § 2000e-2(a)....................................................... ii, 25

28 U.S.C. § 1291................................................................. 1

28 U.S.C. §§ 1331................................................................. 1

TABLE OF AUTHORITIES (con't)

29 C.F.R. § 1605.1................................................................30

29 C.F.R. § 1605.2(e)....................................................... 34, 35

FEDERAL RULES

Fed. R. Civ. P. 50(a)............................................................ 19

Fed. R. Civ. P. 50(b)............................................................ 19

STATEMENT OF JURISDICTION

The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1345.
The district court entered judgment on October 3, 2007, but retained jurisdiction to
consider equitable relief, which it granted in its December 19, 2007, order. On
January 8, 2007, AT&T filed a timely notice of appeal. This Court has jurisdiction
under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

1. Whether AT&T can challenge on appeal the district court's refusal to
grant judgment as a matter of law in its favor based on the grounds that the
charging parties did not have a sincere religious belief, the requested
accommodation imposed an undue hardship on AT&T, and the charging parties
failed to mitigate their damages where AT&T moved for summary judgment
before trial and made a Rule 50(a) motion at trial but failed to file a Rule 50(b)
motion after trial, and also failed to file a Rule 59 motion for a new trial.
Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006)
Eaddy v. Yancey, 317 F.3d 914 (8th Cir. 2003)
2. Assuming, arguendo, that AT&T can challenge on appeal the district
court's refusal to grant judgment as a matter of law in its favor, whether the
evidence supported the jury's findings that the charging parties sincerely believed
that attending the annual Jehovah's Witnesses convention with their congregation
on July 15 was an important aspect of their religious observance or practice, giving
the charging parties a single day off of work did not impose an undue hardship on
AT&T, and the charging parties mitigated their damages, and whether this Court
should therefore affirm the verdict and awards of back and front pay.
Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977)
Brown v. Polk County, Iowa, 61 F.3d 650 (8th Cir. 1995)
Vetter v. Farmland Indus., Inc., 120 F.3d 749 (8th Cir. 1997)
Henderson v. Simmons Foods, Inc., 217 F.3d 612 (8th Cir. 2000)
STATEMENT OF THE CASE
1. Nature of the Case and Course of Proceedings
This is an appeal from a final judgment of the district court entered in favor
of the EEOC on its claim that AT&T discriminated against José Gonzalez and
Glenn Owen because of their religious beliefs in violation of Title VII of the Civil
Rights Act of 1964. On September 28, 2006, the EEOC filed a complaint alleging
that AT&T discriminated against Gonzalez and Owen when it refused to
accommodate their request for a single day off to attend an annual Jehovah's
Witness convention and then discharged them when they attended the convention.
APP1.<2> AT&T filed a motion for summary judgment arguing that it had not
violated Title VII because giving Gonzalez and Owen the day off imposed an
undue hardship on AT&T. APP11. On October 3, 2007, the district court denied
the motion, APP372, and on October 15, 2007, a jury trial began. During the trial,
AT&T made a Rule 50(a) motion for judgment as a matter of law at the close of
the EEOC's case and at the close of all of the evidence as to the sincerity of
Gonzalez's and Owen's religious beliefs, whether accommodating the men
imposed an undue hardship, and whether they had mitigated their damages. The
court denied both motions. Tr. at 643-55, 742-43.
At the conclusion of the trial, the jury found for the EEOC on its claims of
religious discrimination. APP421. The jury awarded Gonzalez $136,000 in lost
wages and benefits and $230,000 in compensatory damages and awarded Owen
$160,000 in lost wages and benefits and $230,000 in compensatory damages. Id.
On October 23, 2007, the court entered judgment consistent with the jury's verdict
but retained jurisdiction to determine what equitable relief, if any, to grant.
APP424. On December 19, 2007, the district court entered an order directing
AT&T to reinstate the charging parties, awarding front pay to the charging parties
from the date of judgment to reinstatement, and awarding prejudgment interest.
APP427. AT&T failed to renew its Rule 50(a) motion for judgment as a matter of
law by filing a Rule 50(b) motion after trial, and AT&T failed to file a Rule 59
motion for a new trial. APPe-f (docket).

2. Statement of the Facts
José Gonzalez and Glenn Owen are Jehovah's Witnesses who worked for
AT&T in Jonesboro, Arkansas, until AT&T fired them for attending a religious
convention. Tr. 62, 63, 236. Gonzalez began working for AT&T in 1997 in
customer service and in 1999 became a customer service technician ("CST").
Tr. 73-75. CSTs install and repair phone lines. Owen, who is Gonzalez's brother-
in-law and attends the same congregation, began working for AT&T as a CST in
1999. Tr. 62, 236, 240. It is undisputed that they were good workers and reliable
employees. Tr. 369, 384, 538.
Gonzalez became a baptized Jehovah's Witness in August 1984, and Owen
was baptized in 1997. Tr. 63, 236. Jehovah's Witnesses do not celebrate any
holidays or observe the Sabbath; their only observance is the memorial of Christ
Jesus's death in the spring. Tr. 161-62, 67-68, 237. Accordingly, Gonzalez and
Owen often worked weekends or holidays such as Thanksgiving so that other
CSTs could have the day off. Tr. 83, 283, Pltf. Ex. 13 (Owen's charge).
Although Jehovah's Witnesses do not celebrate holidays or observe the
Sabbath, every summer they hold an annual convention lasting three days. Tr. 69.
As Gonzales explained, the origins of the convention "go back to the Hebrew
scriptures of the pre-Christian times." Tr. 69. He testified that the "Bible talked of
three such occasions, yearly occasions, and those were required; to attend was
required." Id. While Jehovah's Witnesses "don't observe those [three occasions],
necessarily, anymore," Gonzalez testified that Jehovah's Witnesses believe that
"Jehovah God doesn't change" and "if he viewed those, our gatherings, that
important back then, surely he must now." Id.; see also Tr. 164 (stating that he
realized not everyone agreed, but "in as much as Jehovah God holds it [the
convention] up as very important, and it is indeed a commandment to meet
together, and inasmuch as failing to do so in Hebrew times was punishable - they
had three festivals, and they were required," Jehovah's Witnesses also view the
convention "that importantly").
Similarly, Owen testified that it was "very important . . . to gather together.
As it says in the Bible, 'Do not forsake the gathering of yourselves together.'"
Tr. 238. He reiterated, "these [conventions] are very, very important parts of what
we do during the year." Tr. 238; see Pltf. Ex. 13 (stating that he told his supervisor
that attending the convention "was a religious observance" and that being told he
had to work on July 15 rather than attend the convention was forcing him to
"cho[o]se between my religion and my job").
Although there are several hundred conventions each year with thousands of
attendees at each, an entire congregation is supposed to attend the same
convention. Tr. 70-71, 80, 158, 165. According to Gonzalez, this was important
"because it's the way we support what we call theocratic order." Tr. 80. He
explained that organizing the conventions "is painstaking," given the logistics
involved, and that they were "always encouraged to follow that order." Tr. 81.
Owen similarly testified that he believed that he was supposed to attend the
convention assigned to his congregation because "Jehovah is a God of order, not of
disorder," and the conventions were planned out far in advance. Tr. 258-59.
Additionally, both Gonzalez and Owen held leadership roles in their
congregations; Gonzalez was an elder, and Owen was a ministerial servant.
Tr. 163, 237. Gonzalez explained that while there is no doctrine requiring
attendance at the convention, his failure to attend "would bring into question my
qualifications, as an elder." Tr. 162-63. Neither Gonzalez nor Owen ever missed a
convention. Tr. 71, 259.
Two of AT&T's own witnesses, who were both AT&T employees and
Jehovah's Witnesses, testified at trial as to the significance of the conventions. Joe
Coble testified that although the conventions were not like a Sabbath, "we do
consider them something sacred." Tr. 671. He always attended the convention
with his congregation because he had responsibilities at the convention. Tr. 672,
674. Josh Worley also testified that the three-day convention was sacred to
Jehovah's Witnesses. Tr. 681-82.
Prior to 2005, AT&T had always accommodated Gonzalez's and Owen's
requests to have time off to attend the summer convention.<3> Tr. 79. This was true
even though they did not learn until January of each year which convention their
congregation was assigned to attend, which was after AT&T's vacation schedule
for that year had been circulated among the CSTs. Tr. 79.
In January 2005, Gonzalez and Owen learned that their assigned convention
would be Friday, July 15, through Sunday, July 17, in Little Rock, Arkansas.
Tr. 87. Gonzalez testified that his congregation had an assignment at the
convention to clean a section of the stadium each day and that he was going to help
with the sound system. Tr. 103-04. He also testified that as a Jehovah's Witness it
was important for him to follow through on the assignment and, furthermore, that
as an elder in the congregation who urged others to be faithful about discharging
their assignments, it was important that he be faithful in discharging his
assignments. Tr. 104. Owen also testified that he was assigned to be an attendant
at the convention, do cleanup, and do some accounting. Tr. 257. According to
Owen, it was "very significant" to him as a Jehovah's Witness to have an
assignment at the convention because it reflected his good standing in the
congregation and because "[y]ou have to be doing what the Bible says that you're
supposed to be doing." Tr. 257.
Upon learning of the convention date, Gonzalez and Owen immediately
requested to have Friday, July 15 off from work.<4> Tr. 87, 244. AT&T's policy
was to allow only one CST to be on vacation during the busy season, from May
through August, and another CST was already scheduled to have that day off. Tr.
305, 690-91. Gonzalez's and Owen's new manager, Jacob Garrett, gave no
response to their written vacation request. Tr. 88-89. In March, Owen submitted
another written request and even marked it "second request." Tr. 245. Gonzalez
also asked Garrett about the request, stating that it was important that they attend
the convention. Tr. 89. Garrett refused to say "yes" or "no" but indicated that they
would be able to "'work something out.'" Tr. 89. On May 23, 2005, Owen
submitted another request to have July 15 off for the convention and also asked to
have time off in June to attend a rock concert. Tr. 245-46. Garrett immediately
gave Owen approval to attend the rock concert - without mentioning anything
about having to wait and see about the workload or the weather - but again refused
to say whether Owen could have July 15 off. Tr. 246-48.
By June, Gonzalez and Owen had become increasingly concerned about
Garrett's lack of response either way about their request. Tr. 91 (explaining that
had Garrett said "no," it would have "forced our hand to do something" but that
Garrett was not saying yes or no). Accordingly, the men asked Gary Jones, a
union steward, to join them in talking with Garrett. Tr. 91, 249-50. Garrett,
however, still refused to say whether he would give the men the day off. Tr. 91.
Gonzalez and Owen mentioned to Garrett several ways in which they could be
accommodated besides taking July 15 as a vacation day, including working
overtime on the Sunday before July 15. Tr. 92-95.
Two weeks before the convention, Gonzalez and Owen again asked Garrett
about their request and offered "to do anything that we had to to get off," including
working without pay, working overtime without pay, or coming in Sunday.<5>
Tr. 252. Garrett again refused to say whether the men could have the day off,
telling them only that "'we'll just have to wait and see what the load does.'"
Tr. 252. Owen reiterated that the request had been pending for six months and that
"this is not a light matter to me." Tr. 252.
On the morning of July 14, Gonzalez and Owen again demanded to know if
they could be off the next day, and they told Garrett that federal law required that
they be given the day off. Tr. 95, 353, 251. Because Garrett "didn't know much
about federal law," Garrett finally brought the men's request up with his
supervisor, Phil Farley. Tr. 353, 359. By Garrett's own account, he violated
AT&T's policy by waiting so long to ask Farley about Gonzalez's and Owen's
request instead of raising it as soon as they made it. Tr. 352.
Farley and Garrett discussed the request with another AT&T manager,
Marty Binns. Tr. 512. Based on the "load" and on the weather (some rain was
forecast, which generally causes the number of service calls to increase), the three
managers decided that the request should be denied.<6> Tr. 512. Garrett called
Gonzalez and Owen and told them this. Tr. 99-100. Gonzalez and Owen again
reminded Garrett that they had made the request more than six months ago for a
religious purpose and that they had already made arrangements to attend the
convention, and they said that they were going to attend it. Tr. 99-101, 253.
At some point that afternoon, Farley talked to Jim Hamilton, an AT&T labor
relations manager, and to his boss, Alejandro Olea. Tr. 553-54, 574. At 4:30 PM,
Garrett called Gonzalez and Owen and told them, per Hamilton's instruction, that
he was giving them a "work directive" to show up for work the next day. Tr. 101,
253. The men again said that they had been asking for the day off for six months,
that they already had hotel reservations, and they were going to attend the
convention. Tr. 253. That evening, Farley called Jackie Fields, the president of
the local union, and asked her to call Gonzalez and Owen and encourage them to
go to work, which she did. Tr. 438, 255, 323.
When Gonzalez and Owen failed to show up for work on July 15, because
they had gone to the convention, Garrett informed Farley. Although Garrett
believed Gonzalez and Owen were "reliable employees," he and Farley drove by
their homes to be sure that they were not just sitting around. Tr. 368, Tr. 443-44.
According to Farley, had Gonzalez and Owen simply been sitting around at home
instead of having gone to the convention, he would have just asked them to come
to work and "it could have changed the whole element of everything." Tr. 444.
On Monday, July 18, Garrett held brief investigatory meetings with
Gonzalez and Owen. Tr. 260-61. That afternoon, Farley talked with Olea, three
in-house attorneys, and a vice president. Tr. 558. They discussed suspending the
men, which Farley did that day.<7> Tr. 601. Later in the week, Farley recommended
that Gonzalez and Owen be terminated for insubordination. Tr. 452-54. On
August 2, AT&T held a "day in court" for Gonzalez and Owen. Tr. 614. After the
"day in court" and consulting with several people, Olea - who was the final
decisionmaker - decided to terminate Gonzalez's and Owen's employment.
Tr. 636, 457. The stated reasons for the terminations were "misconduct; job
abandonment; insubordination; and failure to follow a work directive." Tr. 631.
At trial, AT&T offered evidence that on Friday, July 15 it had 58 trouble
reports (which, under state law, required repair within 24 hours) and 12 service
orders (which required installation within several days). Tr. 531, 385. The ten
Jonesboro CSTs who worked on July 15 completed the combined total of 70
tickets with 27.75 hours of overtime. Tr. 532, 371. According to AT&T, it paid
regular overtime wages of $41.38/hour for 3.75 of those overtime hours and
"premium," or double, overtime of $55.18/hour for 24 of those overtime hours.
Tr. 561-62. (The base hourly wage was $27.59/hour. Tr. 564.) CSTs earned
overtime whenever they worked more than 8 hours in a day, and they earned
double overtime when they worked more than 49 hours in a week. Tr. 564.
Working overtime, however, was a job requirement. Tr. 375. Some CSTs
liked working overtime and volunteered for it. Tr. 377. There was also abundant
evidence offered at trial that overtime was not only required but was the norm.
Garrett testified that overtime was a "weekly occurrence," and Binns testified that
the CSTs worked overtime "pretty much every day." Tr. 367, 521. It is also
undisputed that the twenty CSTs in Jonesboro and nearby towns worked over
7,088 hours of overtime in just the first seven months of 2005. Tr. 376-77; Pltf.
Ex. 25. Gonzalez and Owen also testified that working overtime was the norm.
Gonzalez testified that in 2005 before his termination, he worked 240 hours - or 6
weeks - of overtime, and he testified that approximately 30% of his $82,113
earnings in 2004 was from overtime. Tr. 117. Similarly, Owen testified that in
2005 he worked 468 hours - or more than eleven weeks - of overtime before he
was fired, which included 82.75 hours of premium overtime, and that at least 40%
of his $91,689 in earnings in 2004 came from overtime. Tr. 265-66. Working
overtime was so routine that Garrett did not even consider whether approving a
shift-swap between CSTs, which was a common occurrence, would result in
increased overtime for the company - even if the shift swap was to allow a CST to
attend a baseball game. Tr. 346, 354. The EEOC also offered evidence that
working overtime on Friday, in particular, was to be expected. Tr. 548-49.
Although all of the Jonesboro CSTs had to work some overtime on July 15, none
of them complained about it. Tr. 549.
AT&T offered evidence that on July 15 it had to "close the clocks" (meaning
that it stopped accepting service calls for that day) at 10:00 AM instead of the 2:00
target time because the load was so heavy. Tr. 531. Farley testified, however, that
it "doesn't always happen" that the clocks stay open until 2:00 PM, and it is
undisputed that on July 14 - when Gonzalez and Owen were working - the clocks
closed at 10:15 AM. Tr. 422-23, 531. AT&T also offered general evidence at trial
as to the competitive nature of the phone company business and that the failure to
provide prompt service can cause some customers to change companies. Tr. 566.
It is undisputed, however, that AT&T did not receive a single customer complaint
on July 15 due to untimely service. Tr. 532.
At trial Gonzalez testified that he went on unemployment for twenty weeks,
during which time he contacted between two and three employers a week looking
for work. Tr. 119-20, 148. He had an interview at Arkansas Glass but was not
offered a position. Tr. 122, 150. None of the jobs for which he applied paid
$75,000-$80,000 per year, as did his AT&T job. Tr. 122. In 2005, he mowed
some lawns and made $200. Tr. 120. He and his wife also invested $4000 in a
company, Phone Jacks Half Price, that turned out not to be profitable. Tr. 119. In
2006, Gonzalez made about $930 mowing lawns. Tr. 123. In 2006, he made
$12,710 painting apartments. Tr. 124-25. He continued painting in 2007 and, as
of the time of trial, had earned about $20,040 between January and September.
Tr. 125. After his termination from AT&T, where he had medical and dental
benefits, Gonzalez had no benefits and was forced to forego needed medical and
dental treatment. Tr. 128, 130-31. He specifically testified that he used his best
efforts to find a job with health care benefits but was unable to do so. Tr. 142. He
also testified that, for a time, he spent twelve to fifteen hours a week home-
schooling his son and another twelve to fifteen hours a week helping his wife with
her business. Tr. 145. Once his painting work picked up, however, he became too
busy to do the home-schooling or to help his wife with her business. Tr. 146.
Although Gonzalez had carpentry experience, he did not seek that work because he
had neither the vehicle nor the tools required for the trade. Tr. 147, 223.
Owen testified that in 2004 he earned $91,689.38 from AT&T and that he
had intended to work for AT&T until he retired. Tr. 264, 280. A day after AT&T
fired him, Owen and his wife started a company called "Pinnacle Phone
Technologies," which did phone installation and repair. Tr. 265-66. The start-up
cost was $15,000, but the company never became profitable. Tr. 268, 270-71.
Owen also received unemployment for twenty weeks. Tr. 286. After his
termination, Owen's wife, who had ten years of HR experience, also put out "quite
a few résumés" for him and they "looked around," but Owen did not receive any
responses. Tr. 266, 285. Owen personally applied for a position at the "Nucor"
and "Maverick" companies but, due to the long drive and the hours, he did not
pursue a job at either place. Tr. 287, 288. In late 2006, Owen personally contacted
the Automatic Door Company and had an interview, but he decided that he did not
want the position because it involved extensive travel. Tr. 266, 288-89. In 2006,
Owen applied for a job at Engines, Incorporated. Tr. 286. He was hired and
started working there in 2007 making $28,000/year, although he soon received a
raise to $29,038/year. Tr. 271-72.

3. District Court's Decision
At the close of the EEOC's case, AT&T made a motion for judgment as a
matter of law arguing: (1) Gonzalez and Owen lacked a sincere religious belief that
they had to attend the convention on Friday, July 14; (2) the requested
accommodation imposed an undue hardship; and (3) Gonzalez and Owen had
failed to mitigate their damages. Tr. 643-50. The district court denied the motion.<8>
At the close of AT&T's case, it renewed its motion for judgment as a matter of
law, and the district court again denied it. Tr. 742-43.
The jury returned a verdict in the EEOC's favor on its claims of religious
discrimination on behalf of both Gonzalez and Owen. ADD11-112. The jury
awarded Gonzalez $136,000 in lost wages and benefits and $230,000 in
compensatory damages and awarded Owen $160,000 in lost wages and benefits
and $230,000 in compensatory damages. Id. On October 23, 2007, the court
entered judgment consistent with the jury's verdict but retained jurisdiction to
determine what equitable relief, if any, to grant. ADD13-15. On December 19,
2007, the district court entered an order directing AT&T to reinstate the charging
parties, awarding front pay to the charging parties from the date of judgment to
reinstatement, and awarding prejudgment interest. ADD16. AT&T failed to file
any post-judgment motions. APPe-f (docket).

SUMMARY OF ARGUMENT

This Court should affirm the jury's verdict and the award of damages
because AT&T is procedurally barred from challenging on appeal the district
court's refusal to grant it judgment as a matter of law. Although AT&T seeks to
appeal the court's denial of AT&T's motion for summary judgment, it is well
established that a denial of summary judgment is not appealable after a full-blown
trial on the merits. AT&T also seeks to appeal from the district court's denial of its
Rule 50(a) motion for judgment as a matter of law, but AT&T's failure to renew
this motion after trial precludes such a challenge, and AT&T never filed a motion
for a new trial.
Even assuming, arguendo, that AT&T was entitled to a plain error review of
the court's refusal to grant judgment as a matter of law in its favor, this Court
should affirm the jury's verdict because it did not represent a manifest miscarriage
of justice. AT&T first argues that the EEOC failed to show that Gonzalez and
Owen sincerely believed that, as Jehovah's Witnesses, attending the convention on
July 15 was an important religious observance or practice. The evidence presented
at trial, however, fully supported the jury's finding that both men sincerely
believed that it was a religious obligation not just to attend any convention, but to
attend the July 15 convention to which their congregation had been assigned.
Accordingly, the jury's verdict did not represent a manifest miscarriage of justice.
AT&T also argues that, as a matter of law, it established that giving
Gonzalez and Owen the day off imposed an undue hardship because other
employees had to work overtime. The evidence presented at trial, however, would
have allowed the jury to reasonably conclude that accommodating Gonzalez and
Owen cost the company a combined total of $220.56, or $110.28 per employee.
Given the overwhelming evidence presented at trial that overtime was a required
part of the job and a weekly - if not daily - occurrence, that just twenty CSTs
earned more than 7,000 overtime hours in the first seven months of 2005, and that
Garrett routinely approved shift-swaps for any reason - even to attend a ball game
- without regard to whether doing so would result in more overtime pay, it
certainly cannot be said that the jury was required to find undue hardship.
Accordingly, the verdict was not a manifest miscarriage of justice.
Finally, AT&T argues that, as a matter of law, Gonzalez and Owen failed to
satisfy their duty to mitigate their damages. At trial, both men testified that they
made extensive efforts to mitigate their damages by applying for other jobs and
starting their own businesses. AT&T bore the burden of showing that the men
failed to mitigate their damages. AT&T never offered any evidence at trial,
however, that there were substantially equivalent positions available but that
Gonzalez and Owen unreasonably failed to seek them out. Accordingly, this Court
should affirm the verdict and the awards of back and front pay.

ARGUMENT

AT&T argues that the district court erred in refusing to grant its motion for
summary judgment and in denying its Rule 50(a) motion for judgment as a matter
of law. As discussed below, however, the law is clear that AT&T is unable to
appeal from the denial of summary judgment and that its failure to file any post-
trial motions precludes this Court from considering whether the district court erred
in denying AT&T's motion for judgment as a matter of law. Therefore, AT&T has
procedurally forfeited its argument that it was entitled to judgment as a matter of
law, and this Court should affirm the jury's verdict and award of damages.
A. AT&T cannot appeal from the denial of summary judgment.
Although AT&T seeks to appeal from the district court's denial of its motion
for summary judgment, "even a cursory review of precedent in this Circuit reveals
that [this Court] does not review a denial of a summary judgment motion after a
full trial on the merits." Eaddy v. Yancey, 317 F.3d 914, 916 (8th Cir. 2003); see
also Metro. Life Ins. Co. v. Golden Triangle, 131 F.3d 351, 354 (8th Cir. 1997)
("[W]e are unable to review the denied summary judgment motion because Met
Life had a full and fair opportunity to litigate its position before a jury."). This is
true regardless of whether the motion for summary judgment is based on the
sufficiency of the evidence or on an interpretation of substantive law. Metro. Life,
131 F.3d at 354-55. Accordingly, AT&T cannot appeal from the district court's
order denying its motion for summary judgment. This Court should therefore
disregard AT&T's arguments as to the summary judgment motion.
B. Because AT&T failed to file any post-trial motions, it is not entitled to
judgment as a matter of law, or to a new trial.

Although AT&T also argues on appeal that the district court erred in
refusing to grant its Rule 50(a) motion for judgment as a matter of law, AT&T
procedurally forfeited this argument by failing to renew its motion for judgment as
a matter of law after trial and by failing to file a motion for a new trial.
Accordingly, this Court is without authority to consider AT&T's arguments on
appeal.
Federal Rule of Civil Procedure 50 governs the procedural requirements for
challenging the sufficiency of the evidence in civil jury trials. A motion under
Rule 50(a) for judgment as a matter of law may be made prior to submission of the
case to the jury. Fed. R. Civ. P. 50(a). AT&T did this. Rule 50(b) allows a party
to renew the motion after trial. Fed. R. Civ. P. 50(b). AT&T failed to do this.
AT&T also failed to file a motion for a new trial under Rule 59. Prior to 2006, a
litigant's failure to renew a motion for judgment as matter of law after trial did not
entirely deprive a litigant of appellate review. Instead, this Court allowed for a
plain error review, i.e., "to prevent a manifest miscarriage of justice." Broadus v.
O.K. Indus., Inc., 238 F.3d 990, 991 (8th Cir. 2001) (internal quotations and
citation omitted). When this standard was satisfied, the only available relief was a
new trial. Karjala v. Johns-Manville Prods. Corp., 523 F.2d 155, 157 n.2 (8th Cir.
1975).
In 2006, however, the Supreme Court broadly held that the failure to file any
post-judgment motions precludes a litigant from challenging on appeal the
sufficiency of the evidence to support a jury's verdict. Unitherm Food Sys., Inc. v.
Swift-Eckrich, Inc., 546 U.S. 394 (2006). In Unitherm, as in this case, the
defendant filed a Rule 50(a) motion but failed to file either a Rule 50(b) motion or
a motion for a new trial under Rule 59. Id. at 398. On appeal, the defendant
argued that the evidence was insufficient to sustain the jury verdict and that a new
trial should be granted. Id. at 398. The Supreme Court, however, noted that under
its precedent, a litigant's failure to file a Rule 50(b) motion precludes the entry of
judgment in that party's favor. Id. at 404. Reasoning that "if . . . a litigant that has
failed to file a Rule 50(b) motion is foreclosed from seeking the relief it sought in
its Rule 50(a) motion - i.e., the entry of judgment - then surely respondent is
foreclosed from seeking a new trial, relief it did not and could not seek in its
preverdict motion," the Court held that the defendant also was not entitled to a new
trial based on the insufficiency of the evidence. Id. at 404. Thus, Unitherm
clarified that a litigant's failure to renew a motion for judgment as a matter of law
after trial precludes the court of appeals from ordering the district court to enter
judgment in that party's favor - even under a plain error review - and also held
that, in the absence of a motion for a new trial, the court of appeals also cannot
order a new trial based on the insufficiency of the evidence. See Unitherm, 546
U.S. at 404; 546 U.S. at 407 (Stevens, J., dissenting) (criticizing the majority's
decision for foregoing plain error review where a litigant fails to file a Rule 50(b)
motion).
Although this Court has not had an occasion to apply Unitherm, several
other courts of appeals have. See, e.g., Pearson v. Wellborn, 471 F.3d 732, 738-39
(7th Cir. 2006) (holding that Unitherm precluded review of the sufficiency of the
evidence where the defendant failed to file any postverdict motions); HI Ltd.
P'ship v. Winghouse of Florida, Inc., 451 F.3d 1300, 1302 (11th Cir. 2006) (stating
that it had "no authority" to consider an appeal from a jury verdict based on
insufficiency of the evidence where litigant failed to file either a Rule 50(b) or
Rule 59 motion); Barnes v. Rivas, 207 Fed. Appx. 376, 378 (5th Cir. Nov. 17,
2006) (per curiam) (holding that it could not consider the plaintiff's argument that
the verdict was against the weight of the evidence in the absence of any Rule 50 or
Rule 59 motions). Significantly, two courts of appeals have explicitly held that
Unitherm precludes even a "plain error" challenge to the sufficiency of the
evidence when a litigant fails to file any post-judgment motions. See Nitco
Holding Corp. v. Boujikian, 491 F.3d 1086, 1089-90 (9th Cir. 2007) (stating that
"Unitherm precludes even plain error review when a party fails to file a Rule 50(b)
motion" and that "to the extent that our prior decisions permitted a discretionary
plain error review, we must overrule those decisions"); Fed. Ins. Co. v. HPSC, 480
F.3d 26, 32 (1st Cir. 2007) ("Despite our previous case law establishing a strict
'dearth of evidentiary support' standard of review when a party failed to comply
with" Rule 50, "the Supreme Court made it abundantly clear in Unitherm [ ] that in
the absence of a" Rule 50(b) motion, "we are utterly 'without power to direct the
District Court to enter judgment contrary to the one it had permitted to stand'")
(citation omitted). Accordingly, AT&T is not even entitled to a plain error review
of the sufficiency of the evidence; its failure to file any post-judgment motions
means, quite simply, that this Court is without authority to order the district court
to enter judgment in AT&T's favor, or to order a new trial, which is relief AT&T
never even requested from the district court. Therefore, this Court should affirm
the verdict and award of damages.

II. EVEN IF THIS COURT CAN CONSIDER AT&T'S ARGUMENT
THAT IT WAS ENTITLED TO JUDGMENT AS A MATTER OF LAW
BASED ON INSUFFICIENCY OF THE EVIDENCE, THIS COURT
SHOULD AFFIRM THE JUDGMENT AWARDING BACK AND
FRONT PAY BECAUSE THE JURY'S VERDICT WAS NOT A
MANIFEST MISCARRIAGE OF JUSTICE.

Assuming, arguendo, that despite the Supreme Court's holding in Unitherm,
AT&T can challenge on appeal the district court's denial of its Rule 50(a) motion
for judgment as a matter of law under a plain error review, this Court should affirm
the judgment because the jury's verdict did not result in a "manifest miscarriage of
justice." Broadus, 238 F.3d at 991 ("Because appellants did not renew their
motion for judgment as a matter of law after the jury rendered its verdict, 'this
court [will not] test the sufficiency of the evidence to support the jury's verdict
beyond application of the plain error doctrine in order to prevent a manifest
miscarriage of justice") (internal quotation marks and citation omitted).<9> As
discussed below, the jury's findings that: (1) Gonzalez and Owen had a sincere
religious belief requiring attendance at the July 15 convention; (2) accommodating
their request to attend the convention did not impose an undue hardship; and (3)
Gonzalez and Owen mitigated their damages, were well supported by the evidence
and therefore did not represent a manifest miscarriage of justice. Accordingly,
should this Court actually reach the merits of AT&T's argument on appeal, this
Court should affirm the verdict and the awards of back and front pay.
A. The evidence does not compel a jury finding that Gonzalez and Owen
lacked a sincerely held religious belief.

Title VII makes it unlawful for an employer to fail to reasonably
accommodate an employee's religious practices unless an employer shows that
accommodation would cause an undue hardship. 42 U.S.C. § 2000e-2(a)(i)
(prohibiting discrimination based on religion); 42 U.S.C. § 2000e(j) (defining
religion to include "all aspects of religious observance and practice, as well as
belief, unless an employer demonstrates that he is unable to reasonably
accommodate an employee's . . . religious observance or practice without undue
hardship"). To prevail on a claim of religious discrimination, plaintiffs must show
that their religious beliefs conflicted with an employment requirement and that
their beliefs were bona fide, i.e., sincerely held. Ollis v. Hearthstone Homes, Inc.,
495 F.3d 570, 575 (8th Cir. 2007).
Here, AT&T wisely does not challenge the sincerity of Gonzalez's and
Owen's belief that, as Jehovah's Witnesses, attending an annual convention was an
important part of their religious practice or observance. Such an argument would
be frivolous, as Gonzalez and Owen testified at length to their sincere belief that,
as Jehovah's Witnesses, attending the annual convention was an important aspect
of their religious observance and practice rooted in the Bible and that they had
never missed a convention. See supra at 4-5. Moreover, AT&T's own witnesses -
Joe Coble and Josh Worley - testified that the conventions are "sacred" to
Jehovah's Witnesses. See supra at 6.
AT&T instead makes the narrower argument that "there was no proof or
testimony whatsoever to indicate that Gonzalez and Owen held a sincere religious
belief requiring them to attend" the July 15 convention in Little Rock. Br. at 44.
According to AT&T, Gonzalez and Owen could just as well have attended any
other of the 200 conventions held that summer. This argument is factually and
legally meritless.
As a factual matter, this argument is meritless because, in contravention of
the standard of review, it completely ignores evidence presented to the jury that
would have allowed it to conclude that Gonzalez and Owen sincerely believed that
attending the July 15 convention with their congregation was an important aspect
of their religious practice or observance. Specifically, Gonzalez testified that it
was important to attend the convention assigned to his congregation "because it's
the way we support what we call theocratic order." Tr. 80. Gonzalez also testified
that his congregation was assigned to clean a section of the stadium each day, he
was going to help with the sound system, and as a Jehovah's Witness it was
important for him to follow through on the assignment, particularly because he was
an elder in the congregation. Tr. 103, 160, 104. Owen similarly testified that he
had several assignments at the convention and that it was "very significant" to him
as a Jehovah's Witness to have an assignment at the convention because it
reflected his good standing in the congregation and because "You have to be doing
what the Bible says that you're supposed to be doing." Tr. 257; see also Pltf. Ex.
13 (stating that he told his supervisor that being denied the day off on July 15 "was
making me cho[o]se between my religion and my job"). Gonzalez also testified
that he attended the convention every year with his congregation, except for a
single day in 2004 when he volunteered to attend one day at a different convention
in order to accommodate AT&T, and it is undisputed that Owen always attended
with his congregation. See 71, 84-86, 259. Even AT&T's own witness, Joe Coble,
testified that he always attended with his congregation. Tr. 674. Additionally, the
evidence also showed that Gonzalez and Owen chose to attend the July 15
convention despite Garrett's directive to come to work the next day and their
knowledge that serious consequences might result. Thus, the jury's finding that
Gonzalez and Owen sincerely believed that attending the July 15 convention was
an important aspect of their religious practice was not a manifest miscarriage of
justice. See, e.g., Matos v. PNC Fin. Servs. Group, 2005 WL 2656675, *4 (D.N.J.
Oct. 17, 2005) (holding that the plaintiff had shown a bona fide religious belief in
the importance of attending annual Jehovah's Witness conference where she
attended the last four years with her congregation and quit rather than miss the
convention). Finally, the jury also could have found AT&T's challenge to the
sincerity of Gonzalez's and Owen's religious belief disingenuous in light of
AT&T's history of accommodating this very belief in past years, and in approving
Gonzalez's and Owen's shift-swap on Saturday, July 16, which suggests that
AT&T never actually doubted the sincerity of Gonzalez's and Owen's belief that
attending the convention with their congregation was an important aspect of their
religious observance or practice.
Ironically, the only case cited by AT&T to support its argument, Vetter v.
Farmland Indus., Inc., 120 F.3d 749 (8th Cir. 1997), actually supports the
Commission's view that whether Gonzalez and Owen held a sincere belief that
attending the convention on July 15 was an important part of their religious
observance and practice was a question properly put to the jury. In Vetter, the
plaintiff objected to his employer's residency requirement on the ground that he
wanted to live in an active Jewish community. This Court held that whether the
plaintiff's belief was a sincere religious belief or merely a personal preference was
a question for the jury to resolve because there was conflicting evidence. Id. at 752
(reversing grant of judgment as a matter of law in the plaintiff's favor). Here, as in
Vetter, there was evidence from which the jury reasonably could have found that,
contrary to AT&T's argument at trial, attendance at the July 15 trial was not a
"personal preference" but was instead a sincerely held religious belief. The jury
chose to believe that it was a sincerely held religious belief. Accordingly, there
was no manifest miscarriage of justice in the district court's denial of AT&T's
motion for judgment as a matter of law.
AT&T also argues that Gonzalez's testimony that attendance was not taken
at the conventions, he had never heard of a Jehovah's Witness being criticized for
failing to attend a convention, and it was possible to listen to an audio tape of the
convention rather than to attend one precludes a finding that he and Owen held a
sincere religious belief in attending the convention. Br. at 44. This argument,
which AT&T fails to support with a single legal citation - and which would also
apply to attendance at any convention - is utterly meritless, as it reflects AT&T's
fundamental misapprehension of the legal standard applicable to determining
whether an employee's beliefs are sincerely held. Whether a religious belief is
bona fide is not determined objectively by whether a particular religion espouses a
particular belief and condemns those who fail to follow it but is determined
subjectively based on the sincerity of a particular individual's religious views. See
Quaring v. Peterson, 728 F.2d 1121, 1124-25 (8th Cir. 1984) (in First Amendment
case, holding that the fact that other "members of the Pentecostal group with whom
[plaintiff] associates do not share her [specific] belief" "does not lessen the
religious nature of her convictions," and holding that the plaintiff's religious belief
was sincerely held); Matos, 2005 WL 2656675, at *4 ("the determination of
sincerity is a subjective inquiry, requiring examination of an individual's inward
attitudes towards a particular belief system") (internal quotations and citations
omitted); see also 29 C.F.R. § 1605.1 ("The fact that no religious group espouses
such beliefs or the fact that the religious group to which the individual professes to
belong may not accept such belief will not determine whether the belief is religious
belief of the employee . . . .").
Moreover, AT&T's argument is absurd as a practical matter. It suggests that
an individual can show a sincere religious belief in a particular observance or
practice only if everyone in the religion is required to participate and is condemned
for failing to participate, and if no audio tapes of the event are available.
According to this logic, for example, the only way a Christian seeking to observe
the Sabbath by attending church services with his or her congregation would be
able to show a sincere religious belief would be to prove that attendance was taken
at the service, that those who do not attend were condemned, and that no audio
tapes were made of the service. Similarly, a Jewish employee seeking time off to
observe Yom Kippur and attend services would be unable to do so unless he or she
were able to show that observation of the holiday was mandatory and that other
Jewish individuals who failed to observe the holiday were criticized for it. Clearly,
Congress did not intend to impose such a harsh standard for showing a bona fide
religious belief, which would deprive many - if not most - religious observants of
the statutory right to accommodation.
Thus, the evidence presented to the jury was more than sufficient to support
the jury's finding that Gonzalez and Owen sincerely believed that attending the
July 15 convention with their congregation was an important aspect of their
religious practice or observance. Accordingly, the jury's verdict did not result in a
manifest miscarriage of justice and should therefore be affirmed. See Broadus,
238 F.3d at 991.
B. The evidence supports the jury's finding that AT&T failed to show
that accommodating Gonzalez and Owen would have imposed an
undue hardship.

AT&T's central argument on appeal is that giving Gonzalez and Owen the
day off on July 15 to attend the convention would have imposed an undue
hardship. As AT&T acknowledges, it bore the burden of showing an undue
hardship. Br. at 31; see 42 U.S.C. § 2000e(j). In addition, under the plain error
standard of review, AT&T must establish that the record evidence compels a
finding that it would have incurred undue hardship by accommodating Gonzalez
and Owen. The trial record simply does not compel such a finding.
Although Title VII does not define "undue hardship," the Supreme Court has
said that anything "more than a de minimis cost . . . is an undue hardship." Trans
World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977). Undue hardship
encompasses not only pecuniary costs to an employer, but also costs in the form of
lost efficiency or productivity. Id. (holding that both the regular payment of
premium wages and the lost productivity that would result in forcing the defendant
to be short-handed on the one shift each week that the plaintiff wanted off to
observe the Sabbath constituted an undue hardship). To show an undue hardship,
however, an employer must do more than point to conceivable or hypothetical
hardship. Brown v. Polk County, 61 F.3d 650, 655 (8th Cir. 1995) ("An employer
stands on weak ground when advancing hypothetical hardships in a factual
vacuum.") (internal quotations and citations omitted). Instead, the employer must
show a "real" hardship. Id.
AT&T first argues that it established as a matter of law that Gonzalez's and
Owen's failure to work on July 15 imposed an undue hardship because AT&T had
to pay extra overtime to other CSTs who worked that day. According to AT&T,
the ten Jonesboro CSTs who worked on July 15 incurred 27.75 hours of overtime,
which included 24 hours of premium overtime at $55.18/hour and 3.75 hours of
regular overtime at $41.38/hour. Br. at 38; Tr. at 56-62. AT&T then reasons that
had Gonzalez and Owen worked on Friday, July 15, AT&T's overtime for that day
would have been reduced by 16 hours, which means that their absence cost the
company a minimum of $662.08 (16 hours x $41.38). Br. at 38.
AT&T's argument, however, lacks merit because it fails to take into account
that Gonzalez and Owen said that they would take leave without pay on July 15 in
order to be able to attend the convention. Tr. 252. Accordingly, the jury was
reasonably entitled to subtract from the $662.08 the amount of money AT&T
would have saved by allowing Gonzalez and Owen leave without pay on July 15
(instead of allowing them a paid vacation day). Since the base rate of pay was
$27.59/hour, and the men worked eight hours a day, the jury was therefore entitled
to find that Gonzalez's and Owen's failure to work on July 15 saved AT&T
$441.44 (16 hours x $27.59/hour). Accordingly, the jury reasonably could have
found that the true cost of accommodating Gonzalez and Owen was not $662.08
but only $220.56. In other words, the jury reasonably could have found that it cost
AT&T as little as $110.28 to accommodate each employee.
Based on the evidence offered at trial showing that overtime was not only
required but was a routine part of the job, the jury reasonably could have
concluded that a one-time expenditure of $110.28 each to accommodate Gonzalez
and Owen did not represent anything "more than a de minimis cost" for AT&T and
therefore was not an undue hardship. Hardison, 432 U.S. at 84 (emphasis added);
see 29 C.F.R. § 1605.2(e) ("The Commission will determine what constitutes
'more than a de minimis cost' with due regard given to the identifiable cost in
relation to the size and operating cost of the employer . . . ."). It was undisputed at
trial that the twenty CSTs in Jonesboro and the nearby towns had earned 7,088
hours of overtime in just the first seven months of 2005. Tr. 376-77; Pltf. Ex. 25.
The jury therefore could have reasonably concluded that in 2005, just these twenty
CSTs wracked up approximately 12,000 hours in overtime at a minimum cost to
AT&T of $496,560.00 (conservatively assuming that the hours were all just
straight overtime and therefore cost the company $41.38/hour). Based on this, the
jury also could have reasonably concluded that the combined total of $220.56 in
additional overtime AT&T incurred to accommodate Gonzalez and Owen was
truly de minimis because it represented no more than .04% of AT&T's 2005
overtime budget for the twenty CSTs in and around Jonesboro. Even if the jury
accepted that AT&T would have saved 16 hours of overtime if Gonzalez and
Owen had taken July 15 as a vacation day (therefore assuming that they were paid
for their eight hours that they did not work), the jury could have concluded that an
additional 16 hours of overtime (which represented just .12% of the approximately
12,000 overtime hours twenty CSTs earned in 2005) still was "de minimis."
The jury's conclusion that any overtime costs AT&T did incur were de
minimis is also supported by undisputed evidence that overtime was a required part
of the job. Additionally, Garrett testified that he freely allowed CSTs to swap
shifts without giving any regard to whether the swap would result in increased
overtime for AT&T, even if the swap was to attend a baseball game. Tr. 346, 354.
This evidence would have allowed the jury to find that, for AT&T, a once-a-year
expenditure of an extra sixteen hours of overtime wages was not any kind of
burden at all. Accordingly, this case is distinguishable from those cases holding
that the regular payment of overtime wages imposes an undue hardship. Compare
Hardison, 432 U.S. at 84 (concluding that payment of premium wages to allow
employee to have every Saturday off was an undue hardship), and Cook v.
Chrysler Corp., 981 F.2d 336, 339 (8th Cir. 1993) (applying clearly erroneous
standard and finding that evidence supported the district court's finding that
accommodating employee's request to have every Friday night off imposed an
undue hardship because it would require "significant costs") with 29 C.F.R.
§ 1605.2(e)("[T]he Commission will presume that the infrequent payment of
premium wages for a substitute [worker] . . . are costs which an employer can be
required to bear as a means of providing a reasonable accommodation.") (emphasis
added).
AT&T also argues that, apart from the overtime cost, accommodating
Gonzalez and Owen imposed an undue hardship in terms of "lost efficiency" and
because disruption of phone service can "cause customers to lose 911 emergency
service" and "may . . . adversely affect[]" physicians conducting surgeries. Br.
at 37. These argument are factually and legally unfounded. The undisputed
evidence presented at trial was that the ten Jonesboro CSTs completed all 70
tickets for that day. While AT&T argues that it had to close the clocks at 10:00
AM rather than its target of 2:00 PM, which shows a loss in efficiency, the
undisputed evidence was that on July 14 - when Gonzalez and Owen were both
working - the clocks also closed at 10:15 AM. Tr. 531. Thus, Gonzalez's and
Owen's absence on July 15 cannot be said, as a matter of law, to have been the
reason the clocks closed early that day. Additionally, Garrett testified that it
"doesn't always happen" that they keep the clocks open until 2:00 PM. Tr. 422-23.
Thus, the mere fact that the clocks closed at 10:00 AM does not show an undue
hardship. Moreover, the undisputed evidence at trial was that AT&T did not have
a single customer complain on July 15, Tr. 532, much less that 911 service or any
surgeries were disrupted. Accordingly, the record did not compel the jury's
finding that accommodating Gonzalez and Owen would have imposed an undue
hardship on the grounds of lost efficiency or decreased customer service. See Polk,
61 F.3d at 655 (holding that "any hardship asserted . . . must be 'real' rather than
'speculative,' 'merely conceivable,' or 'hypothetical'") (internal citations omitted).
Similarly, there is no factual or legal support for AT&T's contention that "it
is undisputed that Gonzalez['s] and Owen's defiance of Garrett's work directive . .
. resulted in an increased burden on their co-workers." Br. at 37. Tellingly,
although AT&T calls this fact "undisputed," AT&T fails to cite to even a single
piece of evidence to support it. The evidence presented at trial actually showed
that overtime was a required part of the job, a daily occurrence, and to be expected
on Fridays. Tr. 375, 521, 548-49. Additionally, Jerry Jernigan, who was one of
the Jonesboro CSTs who had to work overtime on July 15, testified that none of
the CSTs were upset about having to work overtime that day, Tr. 549, and Garret
testified that some CSTs liked working overtime and volunteered for it. Tr. 377.
Accordingly, there is simply no evidence showing that giving Gonzalez and Owen
the day off imposed any actual burden on the ten other CSTs who worked that day.
See Polk, 61 F.3d at 655 ("'Undue hardship requires more than proof of some
fellow-worker's grumbling . . . . An employer . . . would have to show . . . actual
imposition on co-workers or disruption of the work routine.'") (quoting Burns v.
Southern Pacific Transp. Co., 589 F.2d 403, 407 (9th Cir. 1978)).
Thus, the jury's finding that giving Gonzalez and Owen the day off on July
15 to attend the convention did not result in any undue hardship was not a
miscarriage of justice.
C. Because the jury reasonably determined that Gonzalez and Owen had
mitigated their damages, the award of back and front pay should be
affirmed.

Finally, AT&T argues that the district court erred in denying its motion for
judgment as a matter of law as to mitigation of damages. Br. at 3, 45-47. At trial,
the district court denied AT&T's motion for judgment as a matter of law on this
ground and instructed the jury that Gonzalez and Owen had a duty to mitigate their
damages. Tr. 649-50, 768. The jury awarded Gonzalez and Owen, respectively,
$136,000 and $160,000 in back pay, implicitly concluding that the men had
mitigated their damages, and the court awarded back pay based on the jury's
verdict. The court also awarded front pay up until the date of reinstatement.<10>
Even assuming that AT&T can raise on appeal the district court's denial of
judgment as a matter of law on the mitigation of damages - and the court's award
of back and front pay based on the jury's finding of mitigation - this Court should
reject AT&T's argument. As AT&T notes, a plaintiff has a duty to mitigate
damages. What AT&T fails to note, however, is that "the burden remains on the
employer to show that the employee failed to mitigate his damages." Hartley v.
Dillard's, Inc., 310 F.3d 1054, 1061(8th Cir. 2002) (emphasis added). Thus,
AT&T bore the burden of proving at trial that substantially equivalent employment
was available to Gonzalez and Owen but that they failed to use reasonable care in
seeking out those positions. Id. As the jury found, and the district court agreed,
AT&T failed to meet this burden.
AT&T first argues that Gonzalez did not mitigate his damages because he
had only two interviews, but this argument reflects a misunderstanding of the law
of mitigation. While the law requires that Gonzalez use "reasonable diligence in
seeking new employment, the law imposes no requirement that h[is] attempts yield
success." Henderson v. Simmons Foods, Inc., 217 F.3d 612, 618 (8th Cir. 2000)
(holding that the plaintiff mitigated her damages and affirming back pay award
where she sought "numerous positions commensurate with her education and skill
levels" and the employer failed to offer any "evidence that [plaintiff] refused a
position that was substantially similar to her previous"); see also Newhouse v.
McCormick & Co., 110 F.3d 635, 641 (8th Cir. 1997) ("The burden to mitigate
damages is not onerous and does not require success.") (internal quotation and
citation omitted). Thus, the fact that Gonzalez succeeded in obtaining only two
interviews says nothing about whether he satisfied his duty to mitigate his damages
by diligently seeking out new employment. In fact, the evidence offered at trial
showed that he satisfied this burden by applying for two to three jobs a week
during the twenty weeks he was on unemployment in 2005, mowing lawns in 2005
and 2006, investing with his wife in a company that turned out not to be profitable,
and, in 2006, accepting a position painting apartments, which was work he
continued until the time of trial. See, supra at 14-15. These efforts satisfied
Gonzalez's duty to find new employment. See, e.g., Mathieu v. Gopher News Co.,
273 F.2d 769, 784 (8th Cir. 2001) (holding that the plaintiff had exercised
reasonable diligence to find new employment where he applied for eight to ten jobs
a week for three months and then devoted six to eight hours a week looking for
work); Henderson, 217 F.3d at 618 (holding that the plaintiff mitigated her
damages and affirming back pay award where she sought "numerous positions
commensurate with her education and skill levels" and the employer failed to offer
any "evidence that [plaintiff] refused a position that was substantially similar to her
previous employment or that she failed to use reasonable care in obtaining a
suitable position"); Newhouse, 110 F.3d at 641 (finding that the plaintiff used
reasonable diligence to seek new employment where he applied for various
positions, sought the help of a job service, accepted the only job offered to him
(which happened to be part-time), and applied for only one job after receiving
social security benefits but testified that there were no open positions for which to
apply); Carden v. Westinghouse Elec. Corp., 850 F.2d 996, 1005-06 (3d Cir. 1988)
(plaintiff's decision to start his own business constituted reasonable effort to
mitigate his damages where no evidence showed otherwise and he had been
unemployed for a year).
AT&T further argues that as a matter of law Gonzalez did not mitigate his
damages because after 2006 he did not apply for any positions besides the contract
painting position and did not apply for any positions offering health benefits.
Br. at 46-47. But AT&T fails to point to a single piece of evidence showing that
there were any suitable positions available in 2006 that Gonzalez should have
applied for, much less that there were any available positions offering health
benefits, and Gonzalez testified that he made his best effort to find a position with
benefits. Tr. 142. Accordingly, there was no manifest miscarriage of justice in the
jury's finding that AT&T had failed to meet its burden of showing a lack of
mitigation, or in the court's award of back and front pay based on that finding. See
Hartley, 310 F.3d at 1062 (affirming district court's determination that the plaintiff
had mitigated his damages where the defendant had failed to meet its burden of
showing "'that there were suitable positions and that Plaintiff failed to use
reasonable care in seeking them'") (quoting district court's opinion); Henderson,
217 F.3d at 618 (rejecting the defendant's argument that the plaintiff failed to
mitigate her damages where the defendant failed to proffer any evidence "that
[plaintiff] refused a position that was substantially similar to her previous
employment or that she failed to use reasonable care in obtaining a suitable
position").
There was also no manifest miscarriage of justice in the jury's finding that
AT&T failed to show that Owen had not mitigated his damages. Owen testified
that a day after AT&T unlawfully fired him, he and his wife started their own
business (which failed to become profitable); his wife, who had ten years of HR
experience, put out "quite a few resumes" for him; and Owen himself applied for
two positions. See, supra at 15. AT&T failed to offer any evidence that there were
substantially similar positions available and that Owen failed to apply for them.
While AT&T argues that Owen's efforts were unreasonable because "his wife sent
out copies of his resume [and] he never made any personal contact with any
businesses," Br. at 47, AT&T cites no authority for the proposition that a plaintiff
must personally send out his resume and, in any event, the record shows that Owen
did personally contact businesses about his employment. Tr. at 287-89 (testifying
that he personally talked to the Maverick, Nucor, and Automatic Door companies).
AT&T also argues that it showed that Owen failed to mitigate his damages because
he declined an interview for a position requiring travel throughout Arkansas and
Missouri, Br. at 47, but this argument is unavailing because a plaintiff does not
have to accept a position requiring extensive travel as part of his mitigation efforts.
See Bergman v. Bailey Controls Co., No. 89-3622, 1990 WL 140585, at * 7 (6th
Cir. Sept. 27, 1990) (concluding that "a reasonable juror could find that Bergman
did not fail to mitigate his damages by refusing the Senior Instructor position"
where it required "substantially more travel than" original position).
Accordingly, far from representing a manifest miscarriage of justice, the
jury's finding that Owen and Gonzales satisfied their duty to mitigate their
damages was well supported by the trial record. Therefore, the district court's
award of back pay based on the jury's verdict should be affirmed. See Canny v.
Dr. Pepper/Seven-Up Bottling Group, Inc., 439 F.3d 894, 704 (8th Cir. 2006)
(holding that "the record evidence support[ed] the jury's compensatory damage
award" and that "the district court [therefore] did not clearly err in refusing to"
reduce the back pay award for lack of mitigation); Henderson, 217 F.3d at 617-18
(concluding that the jury did not err as a matter of law in finding that the plaintiff
had mitigated her damages and in awarding back pay, and therefore holding that
the district court did not err in refusing to reduce or set aside back pay award).
Similarly, inasmuch as AT&T relies on the same arguments to challenge front pay,
that award should also be affirmed. See Chalfant v. Titan Distrib., Inc., 475 F.3d
982, 993 (8th Cir. 2007) (award of front pay reviewed for abuse of discretion).

CONCLUSION

For the foregoing reasons, the judgment of the district court and the award of
damages in the EEOC's favor should be affirmed.

Respectfully submitted,

RONALD S. COOPER
General Counsel

VINCENT J. BLACKWOOD
Acting Associate General Counsel

LORRAINE C. DAVIS
Assistant General Counsel

______________________________
ANNE NOEL OCCHIALINO
Attorney
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4724
annenoel.occhialino@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because it contains 10,483 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has
been prepared in a proportionally spaced typeface using Microsoft Word 2003 in
Times New Roman 14 point.

_________________________________
Anne Noel Occhialino
Attorney
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4724
annenoel.occhialino@eeoc.gov

Dated: May 14, 2008

CERTIFICATE OF SERVICE

I, Anne Noel Occhialino, hereby certify that I filed ten copies of the
foregoing brief with one copy of the digital version of the brief in PDF format on a
virus-free diskette by overnight mail. I also certify that I served two copies of the
foregoing brief with one copy of the digital version of the brief in PDF format on a
virus-free diskette by overnight mail to the following counsel of record:

Counsel for Defendant/Appellee:

Byron Freeland
Jeffrey L. Spillyards
MITCHELL, WILLIAMS, SELIG, GATES & WOODYARD, P.L.L.C
425 West Capitol Ave., Ste. 1800
Little Rock, Arkansas
72201
(501) 688-8800

________________________________
Anne Noel Occhialino
Attorney
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
Office of General Counsel
1801 L Street, N.W.
Washington, D.C. 20507
(202) 663-4724
annenoel.occhialino@eeoc.gov

***********************************************************************
<<FOOTNOTES>>

<1> The EEOC also filed a notice of appeal as to the court's refusal to instruct the
jury on punitive damages but is no longer pursuing its cross-appeal.

<2> Consistent with AT&T's opening brief, "APP" refers to AT&T's Separate
Appendix, and "ADD" refers to AT&T's Addendum.

<3> In 2004, Gonzalez was scheduled to work on one of his assigned convention days.
Tr. 85. After consulting with his supervisor, Gonzalez offered to attend only two
of the three days with his congregation at his assigned convention and to attend the
third day of the convention at a different convention site the next week. Tr. 86.

<4> Owen and Gonzalez were also scheduled to work on Saturday, July 16, but they
both found other CSTs to work that day. Tr. 92, 563. Although AT&T refers
throughout its brief to the fact that Gonzalez and Owen were allowed to swap
shifts on July 16, the issue in this case is whether AT&T's failure to accommodate
the men on July 15 was unlawful.

<5> According to Garrett, this was the first time the men had asked to be off July 15.
Tr. 345.

<6> On July 14, 2005, it rained .45 inches, and on July 15, it rained .25 inches.
Tr. 169.

<7> Because Garrett had never had an employee fail to follow a work directive, Farley
handled matters after the investigatory hearing. Tr. 381-82.

<8> The district court granted AT&T's motion for judgment as matter of law as to
punitive damages.

<9> Even if AT&T had properly renewed its motion for judgment as a matter of law,
the evidence was also more than sufficient to support the jury's verdict. This court
reviews de novo a district court's decision to deny judgment as a matter of law.
Schooley v. Orkin Extermination, Co., Inc., 502 F.3d 759, 764 (8th Cir. 2006).
Judgment as a matter of law is appropriate only when "the evidence adduced at
trial is entirely insufficient to support the verdict." Id. In making this
determination, this Court "considers all the evidence in the record without
weighing credibility, while resolving conflicts and making all reasonable
inferences in favor of the" EEOC as the "non-moving party." Id. The jury's
verdict cannot be set aside "unless there is a complete absence of probative facts to
support the verdict and only speculation supports the verdict." Ollis v. HearthStone
Homes, Inc., 495 F.3d 570, 575 (8th Cir. 2007). As set out above, there were more
than enough facts offered at trial to support the jury's verdict under this standard.

<10> Significantly, AT&T does not challenge the order of reinstatement. Thus,
AT&T has conceded that Gonzalez and Owen are entitled to reinstatement even if
this Court were to find that they failed to mitigate their damages.