EEOC v. Autonation USA Corp., 9th Cir. Reply Brief Filed April 25, 2002 No. 01-17064 __________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT __________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. AUTONATION USA CORPORATION, INC., Defendant-Appellee. __________________________________________________________ On Appeal from the United States District Court for the District of Arizona __________________________________________________________ Reply Brief of the U.S. Equal Employment Opportunity Commission as Plaintiff-Appellant __________________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER U.S. EQUAL EMPLOYMENT Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel LORRAINE C. DAVIS 1801 L Street, NW Assistant General Counsel Washington, D.C. 20507 (202) 663-4098 LOUIS LOPEZ Attorney TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . .1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 I. LIKE THE DISTRICT COURT, AUTONATION MISUNDERSTANDS THE OBLIGATION TITLE VII PLACES ON AN EMPLOYER TO REASONABLY ACCOMMODATE THE RELIGIOUS BELIEFS OF ITS EMPLOYEES . . . . . . . . . . . . . . . . . . . . . . .3 II. THE EVIDENCE IN THE RECORD SHOWS THAT THERE ARE MATERIAL FACTS IN DISPUTE REGARDING AUTONATION'S FAILURE TO REASONABLY ACCOMMODATE THOMPSON'S RELIGIOUS BELIEFS . . . . . . . . . . . .6 III. AUTONATION PRODUCED NO EVIDENCE THAT PROVIDING THOMPSON WITH A REASONABLE ACCOMMODATION WOULD HAVE RESULTED IN UNDUE HARDSHIP . . . . . . . . . . . . . . . . . . . . . 10 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 15 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . 16 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Adcock v. Chrysler Corp., 166 F.3d 1290 (9th Cir. 1999) . . . . . . . . 2 Amer. Postal Workers Union v. Postmaster Gen., 781 F.2d 772 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . 9 Anderson v. Gen. Dynamics Convair Aerospace Div., 589 F.2d 397 (9th Cir. 1978) . . . . . . . . . . . . . . . . . . .12, 13 Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986) . . . . . . . .3, 9 EEOC v. Bridgestone/Firestone, Inc., 95 F. Supp. 2d 913 (C.D. Ill. 2000) . . . . . . . . . . 13, 14 EEOC v. Hacienda Hotel, 881 F.2d 1504 (9th Cir. 1989) . . . . . .4, 5 EEOC v. Ithaca Indus., Inc., 849 F.2d 116 (4th Cir. 1988) . . . . . . . 9 Eversley v. MBank Dallas, 843 F.2d 172 (5th Cir. 1988) . . . . . . . . .11 Jordan v. N.C. Nat'l Bank, 565 F.2d 72 (4th Cir. 1977) . . . . . . . . . 9 Moore v. A.E. Staley Mfg. Co., 727 F. Supp. 1156 (N.D. Ill. 1989) . .8, 9 Opuku-Boateng v. California, 95 F.3d 1461 (9th Cir. 1996) . . . . .11, 14 Tiano v. Dillard Dep't Stores, Inc., 139 F.3d 679 (9th Cir. 1998) 4, 5, 6 Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) . . . 3, 11, 12 Weber v. Roadway Express, Inc., 199 F.3d 270 (5th Cir. 2000) . . . . . .11 TABLE OF AUTHORITIES (continued) STATUTES, REGULATIONS AND OTHER AUTHORITIES Section 701(j) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-j . . . . . . . . . . . . . . . . . . . . .3 INTRODUCTION In its opening brief, the U.S. Equal Employment Opportunity Commission (EEOC or Commission) focused on the single relevant issue in this appeal: Whether the district court erred in granting summary judgment where there was evidence in the record that AutoNation unlawfully failed to reasonably accommodate Nicholas Thompson's religious beliefs. In addressing this question, EEOC first pointed to disputed material facts regarding whether AutoNation made any real efforts to reasonably accommodate Thompson's religious beliefs. In addition, the Commission argued that the district court ignored record evidence that — when coupled with the applicable precedent on reasonable accommodation and undue hardship — tends to show that AutoNation could have resolved the conflict between Thompson's religious beliefs and AutoNation's business practices without undue hardship. Finally, AutoNation failed to demonstrate through undisputed evidence, as it is required to at this stage in the litigation process, that providing Thompson with a reasonable accommodation was not possible absent undue hardship. In fact, EEOC showed that through voluntary shift swapping, shift scheduling, or a combination of these efforts, AutoNation may have been able to reasonably accommodate Thompson. For these reasons, EEOC argued that the district court improperly granted summary judgment in this case. AutoNation, in response to EEOC's opening brief, rests its argument on legal standards that are plainly incorrect. First, AutoNation cites the wrong standard of review for this case. Def. Br. at 7 ("Unless this Court finds "clear error" in the district court's determination, the decision must stand.") (emphasis in original). As this Court well understands, a district court's grant of summary judgment — which occurred in this case — is reviewed under the de novo standard. See Adcock v. Chrysler Corp., 166 F.3d 1290, 1292 (9th Cir. 1999). This error obviously undermines AutoNation's entire position in this appeal. Second, AutoNation articulates an incorrect reasonable accommodation standard, arguably less onerous than the already modest obligation firmly established in law. Def. Br. at 7. Additionally, AutoNation chooses not to address the Commission's evidence relating to AutoNation's failure to reasonably accommodate Thompson's religious beliefs and, instead, simply reiterates the analysis of the district court's opinion, which improperly determined that there were no material facts in dispute. Def. Br. at 6 & 11. Moreover, AutoNation's contention that Thompson could not have been reasonably accommodated without undue hardship is grounded solely on assertions that are not based on evidence in the record. AutoNation's brief, as a consequence, fails to provide any meaningful rebuttal to counter the Commission's evidence that the district court erred in granting summary judgment in this case. ARGUMENT I. LIKE THE DISTRICT COURT, AUTONATION MISUNDERSTANDS THE OBLIGATION TITLE VII PLACES ON AN EMPLOYER TO REASONABLY ACCOMMODATE THE RELIGIOUS BELIEFS OF ITS EMPLOYEES. Once a prima facie case of religious discrimination is established, as is undisputed here, an employer's statutory obligation to provide a reasonable accommodation to an employee's religious beliefs is limited only by undue hardship. Any showing short of undue hardship is not sufficient to rebut this obligation. Congress codified the employer's duty in section 701(j) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(j), which specifically states that an employer has an obligation "to reasonably accommodate an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business." Supreme Court case law on this issue also supports the exclusivity of the undue hardship defense. See, e.g., Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 75 (1977) (stating "the employer's statutory obligation to make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship, is clear"); Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68 (1986) (finding that an employer violates Title VII unless it can demonstrate that it is unable to reasonably accommodate an employee's religious beliefs absent undue hardship). Contrary to established law, AutoNation contends that it could satisfy its statutory obligation to reasonably accommodate Thompson's religious beliefs solely by demonstrating that "it initiated good faith efforts" to accommodate Thompson. Def. Br. at 7. As explained above, however, such attempts are not enough; rather, an affirmative showing of undue hardship must be shown. Specifically, AutoNation states that "if the employee proves a prima facie case, the employer must show "either that it initiated good faith efforts to accommodate reasonably the employee's religious practices or that it could not reasonably accommodate the employee without undue hardship." Id. (emphasis in original) (quoting Tiano v. Dillard Dep't Stores, Inc., 139 F.3d 679, 681 (9th Cir. 1998) (citing EEOC v. Hacienda Hotel, 881 F.2d 1504, 1512 (9th Cir. 1989)). AutoNation's reliance on Hacienda Hotel and Tiano as support for this less onerous standard, however, is misplaced. First of all, the language in Tiano appears to be an abbreviated encapsulation of the Ninth Circuit's more detailed articulation in Hacienda Hotel of an employer's obligation to provide a religious accommodation.<1> In Hacienda Hotel, the court suggested that the analysis of whether an employer has met its statutory duty to provide a religious accommodation begins with a determination of whether that employer "has taken some initial steps" to accommodate the employee given that this obligation rests with the employer, rather than the employee. Hacienda Hotel, 881 F.2d at 1512 (internal quotations omitted). If an employer has offered the employee an accommodation, then the next question is whether the proffered accommodation was reasonable. If no offer has been made, however, then "the employer must accept the employee's proposal [if any] or demonstrate ... undue hardship." Id. Thus, both Tiano and Hacienda Hotel, when read in complete context, embrace the undue hardship requirement and do not support AutoNation's contention that an employer may meet its Title VII obligation to provide a religious accommodation solely by showing that it made good faith efforts to do so. Second, to the extent that AutoNation suggests that Tiano creates a new substantive defense (i.e., good faith efforts to accommodate alone) to the reasonable accommodation requirement, it is not reading the case correctly. A closer review of Tiano's quoted language read in proper context reveals AutoNation's apparent confusion between the employer's substantive undue hardship defense and an employer's burden of production in the litigation-based, burden-shifting paradigm. In fact, the language in Tiano quoted by AutoNation reflects only the burden of production shifted to the employer once "the employee proves a prima facie case" of religious discrimination, and therefore neither addresses, nor conflicts with, the employer's ultimate substantive duty to reasonably accommodate an employee's religious beliefs absent undue hardship. Def. Br. at 7. Thus, the either-or language in Tiano (citing Hacienda Hotel) is consistent with the rule that an employer must provide a reasonable accommodation, unless it can establish undue hardship.<2> II. THE EVIDENCE IN THE RECORD SHOWS THAT THERE ARE MATERIAL FACTS IN DISPUTE REGARDING AUTONATION'S FAILURE TO REASONABLY ACCOMMODATE THOMPSON'S RELIGIOUS BELIEFS. In its response brief, AutoNation specifically contends that EEOC fails "to create a disputed issue of fact" by arguing that AutoNation could have provided Thompson with a reasonable accommodation. Def. Br. at 8. However, the evidence presented to the district court (and cited in EEOC's opening brief at pages 2 through 5), coupled with the relevant Ninth Circuit precedent on reasonable accommodation and undue hardship, demonstrates strong evidence that a reasonable accommodation in this case was not only possible, but readily achievable. Given the genuine factual dispute as to whether a reasonable accommodation was possible in this case, the district court erred in granting summary judgment. AutoNation claims that it attempted to accommodate Thompson's religious beliefs by asking Thompson's coworkers to voluntarily swap shifts with him, and by offering to hire a fourth service writer. Id. First, AutoNation relies heavily on the hearsay deposition testimony of Jim Allen, the service manager, to demonstrate that AutoNation asked Robert Chandra and Jason Tuton, the other service writers, if they would swap shifts with Thompson.<3> The Commission, however, produced a sworn affidavit from Chandra, in which he stated that "[n]o management official for AutoNation ever asked whether I would be willing to work for Nicholas Thompson on the Sundays he was scheduled to work." RE.61 at ¶5. AutoNation also uses Allen's hearsay testimony to argue that the other service writers were unwilling to swap shifts with Thompson. Yet, EEOC presented testimonial evidence from Chandra indicating that shift swapping with Thompson in fact "would have been acceptable" to him had he been asked. Id. at ¶4 (emphasis in original). This evidence alone creates a material factual dispute both as to whether AutoNation ever even attempted to provide Thompson with a reasonable accommodation and as to whether a reasonable accommodation was feasible.<4> Accordingly, summary judgment was inappropriate. Second, AutoNation argues that the Commission makes light of AutoNation's efforts to accommodate Thompson by offering to hire a fourth service writer. However, EEOC believes that there is a disputed issue of material fact regarding whether this proffered accommodation was ever seriously considered by either party because AutoNation's offer to hire a fourth service writer appeared speculative in nature. In fact, according to Thompson, "the possibility of a fourth team might have come up," but it was never truly offered as an accommodation. RE.25 at 53-54 (emphasis added). In any event, AutoNation itself concedes that this offer would "not have completely eliminated Thompson's religious conflict" because Thompson would still have to work every fourth Sunday.<5> Def. Br. at 11. An accommodation is reasonable only if it resolves the conflict between the employee's religious beliefs and the employment requirements. See Ansonia Bd. of Educ., 479 U.S. at 70 (1986) (stating that a reasonable accommodation "eliminates the conflict between employment requirements and religious practices"). AutoNation's offer to hire a fourth service writer thus could not be viewed as a reasonable accommodation since it was clear that it would not resolve Thompson's religious conflict.<6> III. AUTONATION PRODUCED NO EVIDENCE THAT PROVIDING THOMPSON WITH A REASONABLE ACCOMMODATION WOULD HAVE RESULTED IN UNDUE HARDSHIP. AutoNation concludes its brief by arguing that it would have been impossible to reasonably accommodate Thompson's religious beliefs without incurring undue hardship. In fact, AutoNation contends that it has already demonstrated undue hardship by showing "both the impact on coworkers and the cost on business was [sic] more than de minimis." Def. Br. at 12. However, the evidence in the record shows only the existence of factual disputes regarding both whether Thompson's coworkers were ever asked to swap shifts voluntarily, and whether the coworkers would have agreed to do so.<7> Indeed, AutoNation fails to demonstrate any actual evidence that reasonably accommodating Thompson would have imposed any hardship, much less more than a de minimis cost to AutoNation or burden to Thompson's coworkers. AutoNation spends a considerable portion of its brief arguing that Title VII does not require that it "force[] the other service writers to swap shifts with Thompson." Def. Br. at 12. The Commission does not propose and has not argued that other AutoNation employees should be forced against their will to swap shifts with Thompson.<8> In fact, EEOC argued at length in its opening brief that "AutoNation may well have been able to provide the reasonable accommodation of voluntary shift swaps among the service writers to enable Thompson to remain in his job." EEOC Br. at 13 (emphasis added). Because there was no evidence in the record that the proposed voluntary shift swapping accommodation would have caused an undue hardship for AutoNation, the district court erred in granting summary judgment. What the Commission has maintained, however, and AutoNation concedes, is that, under Opuku-Boateng v. California, 95 F.3d 1461, 1470 (9th Cir. 1996), there could exist a set of facts in which an employer could arrange shift assignments in such a manner that all employees would be required "to work an equal number of undesirable weekend, holiday, and night shifts" without suffering undue hardship. Def. Br. at 14. The facts in this case suggest that, contrary to AutoNation's contention, such an accommodation may not have been an undue hardship, especially in light of the fact that the other service writers admittedly were not averse to working on some Sundays so that they could be off of work on some Saturdays.<9> RE.61 at ¶¶3-4; RE.60 at ¶2. If nothing else, EEOC's evidence creates a disputed issue of material fact regarding undue hardship such that summary judgment should not have been granted. In a related effort to show undue hardship, AutoNation resorts to creating hypothetical "hurdles" that it argues would absolve it from having to provide Thompson with a reasonable accommodation. Def. Br. at 15. For example, AutoNation posits that "[i]f one employee quit, and another were not found for some time, one employee would be required to work every Sunday." Def. Br. at 15. However, this so-called hurdle (or any of the others) could arise irrespective of whether Thompson is accommodated through voluntary shift swapping with coworkers. In any event, AutoNation has not demonstrated that its alleged hardships are based on current, actual facts, rather than on mere speculation and hypothesis. See Anderson v. Gen. Dynamics Convair Aerospace Div., 589 F.2d 397, 402 (9th Cir. 1978) ("Undue hardship cannot be proved by assumptions nor by opinions based on hypothetical facts."). Accordingly, AutoNation fails to offer any evidence tending to establish undue hardship. Lastly, AutoNation asserts that it would suffer undue hardship because the proposed shift swapping accommodation would create more than a de minimis loss in efficiency or production.<10> Specifically, AutoNation claims that the shift swapping accommodation would undermine the service department's team approach in that it might make it more difficult for a service writer to know the technician skill level and the vehicle repair status on another service writer's team. Def. Br. at 15. AutoNation also relies on EEOC v. Bridgestone/Firestone, Inc., 95 F. Supp. 2d 913, 925 (C.D. Ill. 2000), to suggest that it would endure an undue hardship "‘because one of its employees is absent due to a religious conflict'" requiring "‘other employees ... to work harder to compensate for [the employer's] accommodation of another employee's religious beliefs.'" Def. Br. at 13 & 16. AutoNation's argument, however, fails for two reasons. First, AutoNation concedes that "it was not impossible for one service writer to take over another service writer's team." Def. Br. at 15. Indeed, AutoNation might have to arrange such shift changes to the team approach in the ordinary course of business anyway. Second, and perhaps more telling, is the sworn testimony from Chandra, a service writer, who stated that the shift swapping accommodation "would not have been a hardship to me." RE.61 at ¶4. This testimony directly contradicts AutoNation's implication that Thompson's coworkers would be adversely affected by the voluntary shift swapping accommodation. In fact, because the Commission proposes that Thompson actually swap an "equal number of undesirable shifts" with his coworkers (rather than be excused from working on certain days — with no reciprocal trade — as proposed for the employees in Bridgestone/Firestone), AutoNation would not need to assign his duties to other employees. Opuku-Boateng, 95 F.3d at 1470. Consequently, the district court erred in concluding — without further analysis and application of the relevant law to the actual facts in this case — that AutoNation could not have reasonably accommodated Thompson without incurring undue hardship. CONCLUSION For the foregoing reasons, we believe that summary judgment was improperly granted to AutoNation in this case. We urge this Court to reverse the judgment of the district court and remand the case for further proceedings. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ______________________________ LOUIS LOPEZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, 7th Floor Washington, DC 20507 (202) 663-4098 CERTIFICATE OF COMPLIANCE I certify that the attached reply brief does not exceed 15 pages, and is proportionally spaced, has a typeface of 14 points, and contains 3,536 words. _________________________ LOUIS LOPEZ CERTIFICATE OF SERVICE I hereby certify that two copies of Plaintiff-Appellant's Reply Brief were mailed, first class, postage prepaid, on this 25th day of April, 2002, to the following: Lonnie J. Williams, Jr. Matthew D. Mitchell Snell & Wilmer LLP One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 ____________________________ LOUIS LOPEZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, 7th Floor Washington, DC 20507 (202) 663-4098 *********************************************************************** <> <1> To this end, it should be noted that, contrary to AutoNation’s brief, the language cited from Tiano is not a direct quotation from Hacienda Hotel, but rather a truncated recapitulation of the employer’s obligation to reasonably accommodate an employee’s religious beliefs. <2> The language in Tiano is dicta in any event. See Tiano, 139 F.3d at 682 (“Because we find that the district court erred in determining that [the plaintiff] established a prima facie case, we need not discuss reasonable accommodation or undue hardship.”). <3> In its opening brief, the Commission discussed its argument that Allen’s testimony is hearsay and should not have been admitted. See EEOC Br. at 11 n.4. Additionally, AutoNation’s brief is inconsistent on this point. Although AutoNation argues that Allen’s testimony is not hearsay, it goes on to use that evidence in a way that establishes it as hearsay or, in other words, for the truth of the matter asserted (i.e., evidence of “the coworkers [sic] refusals”). Def. Br. at 9. <4> AutoNation treats Moore v. A.E. Staley Mfg. Co., 727 F. Supp. 1156, 1161 n.5 (N.D. Ill. 1989), in its brief as if it establishes an employer’s use of “a rotating scheduling system” to be in itself a “universal” accommodation. Def. Br. at 7 n.1. First, Moore is a district court opinion from another circuit. Second, there is, of course, no basis in law or fact for the concept of a “universal” accommodation applicable to all shift schedule request cases. Furthermore, AutoNation’s rotating scheduling system is the very mechanism that created the religious conflict for Thompson in this case and, therefore, cannot be considered a reasonable accommodation for him. <5> In its brief, AutoNation cites Moore, 727 F. Supp. at 1161, to demonstrate that an “employer’s creation of [sic] residual weekly overtime shift” may be viewed as a reasonable accommodation, even though “it did not completely eliminate the possibility of a religious conflict.” Def. Br. at 10. To the extent Moore suggests that a reasonable accommodation does not have to remove the religious conflict, it is inconsistent with Ninth Circuit precedent on this issue. See Amer. Postal Workers Union v. Postmaster Gen., 781 F.2d 772, 776 (9th Cir. 1986) (“[W]here the accommodation proposed by an employer fails to eliminate the affected employee’s religious conflict, the employer must implement an alternate accommodation, unless the employer proves that the accommodation would cause ‘undue hardship.’”). <6> AutoNation argues in its brief that the Commission’s reliance on EEOC v. Ithaca Indus., Inc., 849 F.2d 116 (4th Cir. 1988), is misplaced because in that case, the employer — unlike AutoNation — made no efforts to accommodate the employee’s religious beliefs. This is a distinction without a difference. EEOC cited Ithaca Indus. as analogous support for our primary argument that an employer’s reasonable accommodation must remove an employee’s religious conflict. Indeed, the passage that EEOC quoted from Ithaca Indus. was cited only to demonstrate that even an employee’s absolute refusal to work on the Sabbath still merits accommodation by an employer. Id. at 118. AutoNation’s alleged distinction does not negate this proposition. AutoNation also cites Jordan v. N.C. Nat’l Bank, 565 F.2d 72 (4th Cir. 1977), as a rebuttal to the Ithaca Indus. proposition. However, this argument fails because “to the narrow extent that Jordan can be read to say that an absolute refusal to work on the Sabbath is beyond accommodation, it is expressly overruled.” Ithaca Indus., 849 F.2d at 119 n.3. <7> Contrary to AutoNation’s contention, there is actual evidence in the record that both of Thompson’s coworkers would have been willing to swap some Sunday shifts with Thompson. See RE.61 at ¶¶3-4; RE.60 at ¶2. <8> Indeed, AutoNation’s discussion of Weber v. Roadway Express, Inc., 199 F.3d 270 (5th Cir. 2000), and Eversley v. MBank Dallas, 843 F.2d 172 (5th Cir. 1988), seems irrelevant because neither Thompson nor the Commission ever asked AutoNation to force the other service writers to swap shifts with Thompson. <9> The facts in this case also are distinguishable from those in Hardison, 432 U.S. at 83, making AutoNation’s analogy to that case weak. Def. Br. at 12-13. In Hardison, for example, the court held that the employer was not compelled to switch shifts among employees to accommodate an individual’s religious beliefs if so doing would breach a separate collective bargaining agreement with a union that designated a seniority system for employees’ shift selection. In this case, by contrast, AutoNation was not faced with the dilemma of swapping the shifts of the other service writers in violation of a collective bargaining agreement or seniority system, as no such barriers are present in this case. <10> AutoNation also contends that “the only way to provide Thompson with every Sunday off would be for AutoNation to have operated on Sundays without the benefit of a service writer on those days.” Def. Br. at 15 (emphasis added). Having to do so, AutoNation argues, “would impose more that [sic] a de minimis cost on AutoNation’s business.” Id. at 15-16. However, AutoNation was asked to consider several other possible accommodations, such as shift swapping and schedule changes, and the facts tend to show that these proposed accommodations may well have been viable. Thus, AutoNation’s premise that operating on Sundays without a service writer is the “only way” to accommodate Thompson is flawed. In any event, neither Thompson nor the Commission ever asked AutoNation to consider operating on Sundays without a service writer.