EEOC v. Robert Bosch Corp. (6th Cir.) Proof brief as appellant May 10, 2005 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ______________________ 05-1099 ______________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and JEFFREY L. CARTER, Intervenor, v. ROBERT BOSCH CORP., Defendant-Appellee. ____________________________________________________ On Appeal From the United States District Court For the Western District of Michigan ____________________________________________________ PROOF BRIEF FOR THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ____________________________________________________ ERIC S. DREIBAND General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION SUSAN L.P. STARR 1801 L Street, NW, Room 7042 Attorney Washington, D.C. 20507 202/663-4727 202/663-7090 (fax) TABLE OF CONTENTS Pages TABLE OF AUTHORITIES ii TITLE VII FACT STATEMENT v STATEMENT OF JURISDICTION 1 STATEMENT OF ISSUES 2 STANDARD OF REVIEW 2 STATEMENT OF THE CASE 4 1. Course of Proceedings 4 2. Statement of Facts 5 3. District Court Decision 16 SUMMARY OF ARGUMENT 20 ARGUMENT 23 I. BOSCH DID NOT REASONABLY ACCOMMODATE CARTER'S RELIGIOUS BELIEFS BECAUSE IT FAILED TO ELIMINATE THE CONFLICT BETWEEN HIS BELIEFS AND ITS EMPLOYMENT PRACTICES 23 II. BOSCH FAILED TO ESTABLISH THAT IT COULD NOT HAVE RESOLVED CARTER'S RELIGIOUS CONFLICT WITHOUT UNDUE HARDSHIP BY PERMITTING HIM TO ARRANGE A SHIFT SWAP 26 CONCLUSION 36 CERTIFICATE OF COMPLIANCE DESIGNATION OF CONTENTS OF APPENDIX CERTIFICATE OF SERVICE IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ______________________ 05-1099 ______________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and JEFFREY L. CARTER, Intervenor, v. ROBERT BOSCH CORP., Defendant-Appellee. ____________________________________________________ On Appeal From the United States District Court For the Western District of Michigan ____________________________________________________ PROOF BRIEF FOR THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ____________________________________________________ STATEMENT OF JURISDICTION This is an appeal from a final judgment of the United States District Court for the Western District of Michigan. The district court had jurisdiction over this action under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., pursuant to 28 U.S.C. §§ 1331 and 1343(a)(4). This Court has jurisdiction over this appeal from a final judgment under 28 U.S.C. § 1291.<1> STATEMENT OF THE ISSUES 1. Whether the district court erred when it held that Bosch reasonably accommodated Carter's religious beliefs despite the fact that the company failed to eliminate the conflict between Carter's beliefs and its employment practices. 2. Whether Bosch failed to establish that it could not have resolved Carter's religious conflict without undue hardship where there is evidence that Bosch could have accommodated Carter by assisting him in arranging a voluntary shift swap. STANDARD OF REVIEW This Court reviews a district court's grant of summary judgment de novo. Therma-Scan, Inc. v. Thermoscan, Inc., 295 F.3d 623, 629 (6th Cir.2002). Summary judgment is proper only where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In considering such a motion, the court views the evidence in the light most favorable to the non-moving party and draws all reasonable inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Saroli v. Automation & Modular Components, Inc., No. 03-2395, --- F.3d ----, 2005 WL 946782 (6th Cir. April 26, 2005). "To prevail, the nonmovant must simply show ‘sufficient evidence to create a genuine issue of material fact.'" Johnson v. Karnes, 398 F.3d 868, 873 (6th Cir. 2005). The central issue is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law" because the function of the trial court is not to weigh the evidence, but rather to determine whether there exists a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251- 252 (1986). In a Title VII, religious accommodation case, the employer has the burden of proving the defense of undue hardship. Smith v. Pyro Mining Co., 827 F.2d 1081, 1086 (6th Cir. 1987) ("If the employer's efforts fail to eliminate the employee's religious conflict, the burden remains on the employer to establish that it is unable to reasonably accommodate the employee's religious beliefs without incurring undue hardship."). "‘Where the moving party has the burden' - - the plaintiff on a claim for relief or the defendant on an affirmative defense - - ‘his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.'" Calderone v. United States, 799 F.2d 254, 258-59 (6th Cir.1986) (quoting W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 487-88 (1984)). STATEMENT OF THE CASE 1. Course of Proceedings This is a government enforcement action under Title VII, 42 U.S.C. § 2000e, et seq. The Equal Employment Opportunity Commission ("EEOC") filed a complaint on September 29, 2003, alleging that the defendant violated § 703(a) of Title VII by failing to provide a reasonable accommodation to the known religious practices of its employee, Jeffrey Carter, and for terminating Carter because his belief conflicted with an employment requirement. 42 U.S.C. § 2000e-2(a). R1 at 1-2, JA ___<2>. On December 17, 2003, the district court granted Carter's motion to intervene. On October 21, 2004, the district court granted defendant's motion for summary judgment and entered judgment dismissing the case in its entirety. On November 4, 2004, ten days after judgment was entered, the Commission filed a letter in district court, requesting "an extension of the Commission's deadline to file its Motion for Reconsideration." On November 9, 2004, both the Commission and Carter filed motions for reconsideration. The Commission filed a notice of appeal on December 17, 2004. Carter did not appeal from the district court's judgment<3>. 2. Statement of Facts Jeffrey Carter belongs to the Old Path Church of God, a faith which prohibits its members from working from sundown Friday to sundown Saturday. R46, Exh. 2¶1, JA ___. In July 1977 Carter began working for Bosch in its foundry. Id. at ¶2, JA ___. From the date of his hire until January 2002, Carter was assigned to shifts that did not conflict with his religious observances. Id. During that time Carter worked either the first shift -- Monday through Friday, 7:00 a.m. to 3:00 p.m. -- or the third shift -- Sunday through Thursday, 11:00 p.m. to 7:00 a.m. R46, Exh. 2, ¶2, JA ___. On the few occasions when overtime work caused a conflict, Carter was permitted to switch shifts with other employees. Id. In January 2002, Carter was bumped to Bosch's second shift which worked Monday through Friday, from 3:00 p.m. to 11:00 p.m. R46, Exh. 2, ¶3, JA ___. Accordingly, Carter was scheduled to work every Friday night in conflict with his religious beliefs. Id. Carter immediately told his supervisor about the conflict and inquired about the possibility of finding volunteers who might be willing to swap shifts. Id. Initially, Bosch did nothing and, as a result, Carter was forced to use Paid Absence Allowances ("PAAs") for the first Friday nights he was scheduled to work. Id. Under the collective bargaining agreement ("CBA") between Bosch and the United Auto Workers of America, covered employees such as Carter were permitted 40 hours (5 days) of PAAs per year without supervisory approval. R46, Exh. 6, ¶¶168, 170, JA ___. Employees were permitted to take 24 additional PAA hours (3 days) with supervisory approval. Id., ¶170, JA ___. Carter did not use these additional PAAs in 2002. R46, Exh. 2, ¶11, JA ___. After Carter exhausted the PAAs which did not require supervisory approval, he received a verbal warning for missing work on Friday, February 1, 2002, and a written warning for missing work on Friday, February 8, 2002. Id., ¶4, JA____. Thereafter, Carter, with the help of the union, filed a grievance and on March 18, 2002, an agreement was reached pursuant to which Carter agreed to use his seniority to bid for a job on a different shift, and Bosch agreed to allow him to trade shifts with another employee until he was able to obtain a new position. Id., ¶5, JA ___. In April 2002, Carter successfully bid for a position on the third shift in the machine shop where he was scheduled to work Sunday through Thursday, from 11:00 p.m. through 7:00 a.m. Id., ¶6, JA ___. This schedule did not present a conflict with Carter's religious beliefs since he was off during his Sabbath. Id. He worked in this job with no problem, until July 2002, when, as a result of a temporary plant shut-down, Carter's department went into a "100% situation," meaning that it was operating at full capacity "24 hours a day and 7 days a week." Id., ¶7, JA ___; R46, Exh. 3, ¶6, JA ___. As a consequence, Carter was assigned a mandatory overtime shift from 11:00 p.m. on Friday to 7:00 a.m. on Saturday which conflicted with his religious beliefs. Id.; R75, Exh. 23 at 31, JA___. There is evidence that during this time some other departments at the Bosch plant were also in a "100% situation" and mandatory overtime was prevalent throughout the plant. R46, Exh. 2, ¶6, JA ___; R46, Exh. 3, ¶6, JA___ ; R75, Exh. 19 at 22-24, JA ___. There were a variety of mechanisms in place at Bosch by which an employee could attempt to avoid overtime assignments. An employee could use his five PAA days which did not require supervisory approval and he could request permission to use his three additional PAA days. R46, Exh. 6, ¶¶168, 170, JA ____. There was also a provision, known as the "48 hours," pursuant to which an employee, with management's consent, could decline up to 48 hours of mandatory overtime per year. Id., ¶152, JA ___. In addition, an employee could be excused from an overtime assignment if a replacement was available who was willing to assume the employee's assigned overtime shift. An employee could be replaced by a qualified employee from a different department, a so-called "out of class" replacement. An employee who was willing to accept "out of class" overtime had two ways to indicate his availability – he could sign up for "daily overtime" on a kiosk in the plant or notify his supervisor in writing of his interest. Id. at ¶¶150, 164, JA ___. A supervisor who could not fill an overtime shift with employees within his department due to absences or employees' use of their "48 hours" posted the need for daily overtime volunteers on the kiosk "before first break on each shift[,] to allow the employee to sign up for the overtime after the end of the shift the employee is currently working, and before the beginning of the employee's next shift." Id. at ¶150, JA ____. The supervisor would identify the "out of class" employees who initialed the proper box indicating a willingness to work overtime and the supervisor would notify the employee as soon as possible whether he or she would be working. Id. A supervisor could look to the substitute overtime list to find persons willing to work an extra shift. Id. at 164, JA ___. If the supervisor was unable to fill the shift with volunteers, he was required by the CBA to assign the overtime to the employee in his department who had worked the fewest number of overtime hours. Id. Carter testified that, shortly after he began working in the machine shop, he informed his supervisor, Sandra Nedoba, about the shift swapping arrangement he had in the foundry and inquired whether a similar arrangement would apply in the machine shop. R75, Exh. 18 at 74-75, 176, JA ____. According to Carter, Nedoba responded about a week later that a shift swapping arrangement "was not allowed in the machine shop" and that they could revisit the matter if a conflict arose after Carter exhausted his PAAs. Id. at 77, 177, JA _____. Standard procedure in the machine shop was for supervisors to grant or deny shift trades without involving Human Resources ("HR") unless there was a concern that the swap in some way violated the CBA. R75, Exh. 25 at 107. Voluntary swaps like those requested by Carter did not violate the CBA, even in a situation where 100% of a department is required to work. R46, Exh. 3, ¶8, JA ___ (union official testified that "[d]espite being in a 100% overtime situation, the option of allowing voluntary swaps could have been implemented without violating the CBA"). When the "100% situation" arose in July 2002, Carter contacted both his supervisor and the union seeking help in resolving the conflict between his religious beliefs and his mandatory overtime assignment. R75, Exh. 18 at 75-76, JA ____. Carter was informed that neither he nor anyone else would be permitted to use the 48-hour option or the additional three PAAs which required supervisory approval during the emergency situation. R78, Carter Depo. at 46-50, JA ___; R75, Exh. 18 at 93, JA ___; R75, Exh. 19 at 96-97, JA _____. The evidence in the record indicates that both union and management officials understood that a shift swap with another Bosch employee was a possible means of accommodating Carter's religious conflict. See, e.g., R75, Exh. 23 at 47, 49, JA ___ (union official asked Carter to find someone to switch shifts); R78, Exh. 42 to Tyler Depo., JA ___ (e-mail from Bosch official to union asking whether Carter has "sought out another person to make an arrangement similar to the one he had in the foundry"); R75, Exh. 25 at 109, JA ___ (HR manager David Robbins testified that "[s]wapping is reasonable" in the machine shop). However, for the most part both the union and management treated Carter's request as if he were asking to be excused from overtime. See, e.g., R75, Exh. 19 at 50-51, JA ____ (Nedoba stating that Carter was "asking for coverage" just like "about 80 other people" and that she responded to Carter's request "the same as [she did] to anybody: ‘You're scheduled to work. If you can't work, we'll try and find you coverage. If we can't - - cannot find you coverage, you're scheduled.'" ); R75, Exh. 25 at 64-65, 93, 107 JA ______ (Robbins characterizing the accommodation request as asking that Bosch "cut Mr. Carter a break and excuse his absences," admitting he treated Carter's accommodation request the same as he would any other request for volunteers to work someone's shift, and stating he would not view as "acceptable" a request by Carter to work an overtime shift other than Saturday because "him coming in at a different time, there would have already been somebody else there running the machine [and] [a]dding more people doesn't make you produce more parts"); R75, Exh. 21 at 65, JA __ (union official stating that "[Nedoba] wouldn't let [Carter] off work because she needed the manpower there"). Union representative Sharlene Tyler testified that Carter's supervisor Nedoba told her that the usual procedures to find overtime coverage were being used to find someone to cover for Carter. R75, Exh. 23 at 31, JA ___. Tyler further testified that Nedoba stated that she denied Carter's request to use some of his 48 hours to be excused from mandatory overtime until she had filled all the empty positions on the Saturday shift. R75, Exh. 23 at 35. Tyler also testified that HR "did not agree [] to the institution of voluntary swaps" and that Benson James from HR was equivocal when she raised the idea of swapping shifts. R46, Exh. 8, ¶2, JA ____; R75 at 48 ("Before the discharge meeting, I asked (James) can we come up with the same kind of accommodation that we had in the foundry and he said he didn't know about that."). Nedoba herself stated that "Mr. Carter was just like everyone else. I mean, we tried to accommodate everybody if we could." R75, Exh. 19 at 62, JA ___. When the union raised Carter's situation with Bosch's HR department, it was told that the company considered the existing agreement to apply only to Carter's work in the foundry and that it might consider an accommodation similar to that only if Carter or the union found someone to cover Carter's overtime shift. See R75, Exh. 21 at 33, JA ___ (union official stated HR representative Benson James "portrayed like [sic] it was our problem, not the company [sic]. It was Jeff is the one that got [sic] the problem. He needs to try and find a way to deal with it."); R75, Exh. 17at 42-45 (James testified that Bosch wanted the union or Carter to identify individuals willing to work Carter's shift before it would agree to meet). James's superior, HR manager Robbins, testified that HR did not make any distinction between the foundry and the machine shop in terms of the reasonableness of swapping shifts. R75, Exh. 25 at 109. Robbins further testified that he was "sure we had discussions" with the union about Carter's accommodation before the discharge hearing, but when pressed, he could not "recall any specific conversation." Id. at 56-57, JA ____. Robbins also testified that he spoke with his subordinate James about Carter's accommodation requests "numerous times," and those conversations included identifying the different possible accommodations, "what things could be done, what things are a problem for us . . . brainstorming." Id. When asked about discussions he had with Robbins about Carter's accommodation requests, Benson testified the conversations consisted of "[n]othing more than sharing with him that Sharlene [Tyler] felt that the agreement that we had in the foundry applied to the entire plant" and Robbins stated that any new arrangement would have to be negotiated with the union. R75, Exh. 17 at 36. There is evidence that both Carter and the union made some effort to find a replacement for Carter but were unsuccessful. R78, Tyler Depo. at 45-46, JA _____; R75, Exh. 23 at 47-50, JA _____. Carter used his five PAAs which did not require supervisory approval on July 20, July 27, August 10, August 17 and August 24. R46, Exh. 2 ¶9, JA ____. At the beginning of August, Carter filed a grievance with the union because Carter anticipated that he would soon run out of excused absences. R75, Exh 18 at 100- 01, JA ____ (Carter testified, "[I] put in my 48 hours mandatory excusals, and they was [sic] denying those . . . the only thing they would allow me is put [sic] in my after the facts. They weren't seeking volunteers or letting me - - have someone swap with me in that situation . . . . I'm . . . trying to get Bosch's attention" because Carter was running out of PAAs. ) Carter testified that Nedoba denied his requests to use pre-approved PAAs. Id. at 93, JA _____. Nedoba, however, testified that Carter never submitted requests for the three pre-approved PAAs. R75, Exh. 18 at 95-96. In any event, Nedoba stated that she was instructed by her supervisor between July and September 2002 to post a notice that all further requests for PAAs would not be approved because they were in a "panic situation with production." R75, Exh. 19 at 96, JA ____. Thereafter, Carter began receiving unexcused absences. R46, Exh. 2, ¶11, JA ___. On September 16, 2002, after four unexcused absences, Carter was fired. R46, Exh. 12, ¶6, JA ____. Carter filed a grievance challenging his firing under the CBA on September 27, 2002. R46, Exh. 2, ¶13, JA ____. On October 8, 2002, Carter filed a charge with the Michigan Department of Civil Rights and the Equal Employment Opportunity Commission ("EEOC") alleging that Bosch discriminated against him based on his religion. R75, Exh. 32, JA ___. A hearing was held on Carter's union grievance in October 2002. At the hearing, Bosch's HR manager Robbins testified that he wanted to use the hearing as an opportunity to "brainstorm" with Carter and the union. R75, Exh. 25, 93-94, JA ______. Although Bosch adhered to its decision to terminate Carter, the company and the union entered into settlement negotiations, and in March 2003 they presented to Carter a proposed agreement which would permit him to return to work in the foundry. Carter refused to sign the agreement because it contained a provision stating that, "[w]hen there are no volunteers to cover Mr. Carter's Saturday overtime, he will be required to work that Saturday overtime." R78, Exh 18 to Carter Depo., ¶6, JA ___; R78, Carter Depo at 119, 125-26, JA _____. Carter testified that "I have a problem with require [sic] me to work the Sabbath. It could have said . . . requested, but they required me to work, and that's against my faith ." R78, Carter Depo. at 119, JA ____. Carter went on to state that his specific concern was that by requiring him to work, his refusal would have placed him "at a danger stage in discipline" because the provision would not permit Carter to use the leave provisions available to all other full-time employees, such as the PAAs, the 48- hour mandatory excusal provision. Id. at 127. 3. District Court's Decision The district court began its decision by stating that, "[o]nce an employer has offered a single reasonable accommodation, it has fulfilled its obligation under Title VII." R81 at 6, JA ___ (citing McGuire v. Gen. Motors Corp., 956 F.2d 607, 609 (6th Cir. 1992). The court stated that Bosch does not dispute that the plaintiffs established a prima facie case, and "Bosch also does not contend that it was unable reasonably to accommodate Carter's observance of his Saturday Sabbath without undue hardship." Id. Therefore, the court concluded, "the only disputed aspect of the case for purposes of summary judgment is whether Bosch has shown that it offered Carter a reasonable accommodation." Id. The court stated that "[t]he EEOC concedes in this case, as it apparently must, that ‘voluntary swapping' of shifts is a reasonable accommodation." Id. at 7, JA ___. The court noted that in Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986), the Supreme Court held "that a portion of the EEOC's guidelines on religious discrimination which require the employer to choose an accommodation alternative which ‘least disadvantages an individual's employment opportunities' is ‘simply inconsistent with the statute.'" Id. (quoting 29 C.F.R. § 1605.2(C)(2)(ii) & Ansonia, 479 U.S. at 69 n. 6). In the district court's view, the Ansonia decision "makes it clear that an employer need offer only one reasonable accommodation to fulfill its statutory obligation under Title VII." Id. at 8, JA ___. In addition, the court stated, the Supreme Court's earlier decision in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), "made it clear that employers covered by a collective bargaining agreement [are] on a different footing than employers who are not bound by such an agreement." Id. According to the court, the issue in Hardison was "virtually identical" to the one here: "‘the extent of the employer's obligation under Title VII to accommodate an employee whose religious beliefs prohibit him from working on Saturdays.'" Id. (quoting Hardison, 432 U.S. at 66). The court read Hardison to hold that "the duty to accommodate does not require an employer ‘to take steps inconsistent with' an otherwise valid collective bargaining agreement." Id. at 9, JA___ (quoting Hardison, 432 U.S. at 80). According to the district court, the Hardison Court concluded that the employer in that case "made reasonable efforts to accommodate by leaving to the union steward the task of finding someone who was willing to work for the plaintiff." Id. at 9-10, JA _____. Reviewing the evidence regarding Bosch's response to Carter's request for accommodation, the district court stated that "the evidence clearly shows that Bosch informally discussed with the Union the possibility of allowing Carter to trade shifts with another associate on Fridays, an arrangement which had been in place when Carter worked in the foundry." Id. at 10 (footnote omitted), JA ____. This arrangement failed, according to the court, because "the Union steward could not find anyone to work Carter's Saturday overtime." Id. The court discounted the evidence that Nedoba told Carter that he would not be allowed to have the same swapping arrangement in the machine shop as he had in the foundry. Id. at 11-12, JA _____. According to the court, it is "[n]ot surprising[]" that Nedoba rejected this possibility because it "is clear that Nedoba and Carter lacked the authority to directly negotiate with each other to formulate an arrangement for Carter's excusal from Saturday overtime; instead, the company had to negotiate through the Union, as Carter's exclusive bargaining representative." Id. at 12, JA ___. "In any case," the court added, "what neither the EEOC nor Carter explains is how they could have formulated a list of employees willing to work overtime in the machine shop when the department was in a 100% capacity situation and overtime was already mandatory for other employees in addition to Carter." Id. The court also dismissed Tyler's statement that James rejected the Union's request to institute a voluntary shift swap for Carter, noting that Tyler later testified that James told her the Union could "get volunteers from out of class." Id. at 12- 13, JA ____ (internal quotation marks omitted). The court went on to accuse the EEOC of "skirting over the issue of the lack of available volunteers to work overtime for Carter in the machine shop - - blaming it on the company - - and instead focus[ing] its arguments on what it contends was a failure by Bosch to schedule formal negotiations to discuss the issue of ‘swapping.'" Id. at 13, JA ____. According to the court, "[i]f no formal meeting was held on the question, it was because no volunteers were found to work for Carter in the machine shop on his Sabbath." Id. at 14, JA _____. The court concluded that, "[u]nder the controlling Supreme Court authority of Hardison, Bosch cannot be held liable because no one was willing to volunteer." Id. (citing Hardison, 432 U.S. at 81). Finally, the court rejected the EEOC's argument that Bosch "should ALSO have initiated formal negotiations with the Union to pursue options for other accommodations including allowing Carter to use his remaining PAA days." Id. at 14 (upper case in original), JA ____. Noting that it had "serious doubts" whether permitting Carter to use the PAA days would be a reasonable accommodation given that the relief it would provide would be short-term and it would still leave Bosch understaffed in a 100% capacity situation, the court rejected the argument because "Bosch was not required to offer more than one reasonable accommodation." Id. at 14 & n.5, JA ____. The court concluded that Bosch was entitled to summary judgment because "the evidence shows that Bosch offered the option of using volunteers to work overtime for Carter on his Sabbath; . . . there were no volunteers; and . . . the use of volunteers is, as a matter of law, a reasonable accommodation, even where the employee's collective bargaining representative cannot find volunteers willing or able to volunteer."<4> Id. at 14-15, JA _____. SUMMARY OF ARGUMENT This Court and the Supreme Court have held that an employer does not reasonably accommodate an emplyee's religious beliefs unless it eliminates the conflict between the employee's religious beliefs and the employer's work practices. The district court's holding that Bosch reasonably accommodated Carter's beliefs is in conflict with this precedent. Carter's religion prohibited him from working from Friday at sundown through Saturday at sundown. It is undisputed that Bosch failed to eliminate the conflict between that practice and Carter's work schedule. Thus, Bosch failed to reasonably accommodate Carter's religious practices. The district court held that the Commission's guidance stating that a voluntary swap can be a reasonable accommodation compels the conclusion that Bosch accommodated Carter because, in the court's view, Bosch permitted Carter to find volunteers to swap shifts. The Commission's guidance states only that permitting voluntary shift swaps is often an effective way to resolve scheduling conflicts arising from an employee's religious beliefs; however, it does not state or even suggest that permitting swaps is a reasonable accommodation where it fails to eliminate the conflict. Even assuming that Bosch would have permitted Carter to swap shifts - - a fact which is in dispute - - no swap was arranged; accordingly, Bosch did not reasonably accommodate Carter's beliefs. Because Bosch did not provide Carter with a reasonable accommodation, it violated Title VII unless it can establish that it could not have provided an effective accommodation without incurring undue hardship. The district court suggested that there was no available reasonable accommodation. On the contrary, the evidence would support a finding that Bosch could have accommodated Carter by assisting him in arranging a shift swapping agreement like the one he previously had in the foundry. The district court implies that it is established that Bosch was willing to permit Carter to enter into a shift-swapping arrangement like the one he had in the foundry, and the only reason this did not work was because no volunteers could be found. However, the court overlooks the evidence that Bosch officials on at least two occasions stated that a shift swap would not be permitted in the machine shop. Instead the court mistakenly relies on the fact that Carter was permitted to use the company's existing mechanisms for finding substitutes to work his overtime shifts. These procedures were designed to identify employees willing to work additional shifts. Because persons willing to work additional shifts are not necessarily the same as those willing to swap their overtime shift with an overtime shift of another worker, the procedures Bosch provided were inadequate. There is also evidence suggesting that there were volunteers willing to swap shifts. A union official testified that he believed that volunteers to swap shifts could be found. Moreover, the potential number of persons available to swap shifts was higher than normal during this time. From July through October 2002, Bosch required certain departments, including Carter's, to be staffed 24 hours a day, 7 days a week. This created a large pool of employees assigned mandatory overtime on all days, at all times, in a position to switch their overtime shift with Carter's. Finally, Bosch failed to conclusively prove, as is its burden when it seeks summary judgment, that an effective accommodation would impose on it undue hardship. Bosch relies on Carter's refusal to agree to work overtime, without exception, if a substitute could not be found. Carter's testimony suggests, however, that his objection was that it appeared that he would not be permitted to use the leave provisions available to all other full-time employees. Bosch fails to point to any evidence to contradict this statement by Carter. Accordingly, Bosch is unable to prove conclusively that it could not have accommodated Bosch's religious beliefs without undue hardship. ARGUMENT I. BOSCH DID NOT REASONABLY ACCOMMODATE CARTER'S RELIGIOUS BELIEFS BECAUSE IT FAILED TO ELIMINATE THE CONFLICT BETWEEN HIS BELIEFS AND ITS EMPLOYMENT PRACTICES. Title VII makes it unlawful for an employer to fail to reasonably accommodate an employee's religious practices unless an accommodation would cause the employer undue hardship. 42 U.S.C. § 2000e-2(a)(i) (making it unlawful to discriminate on the basis of religion); 42 U.S.C. § 2000e(j) (defining 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"). These provisions require an employer to make "efforts to accommodate those employees who refuse to work on particular days of the week because of their religious beliefs." Smith, 827 F.2d at 1084-85 (internal quotation omitted). A reasonable accommodation "eliminates the conflict between employment requirements and religious practices." Ansonia, 479 U.S. at 70; see also Goldmeier v. Allstate Ins. Co., 337 F.3d 629, 634 n.2 (6th Cir. 2002) (an employer's response must be a "resolution that eliminates the very existence of the religious conflict."); Cooper v. Oak Rubber Co., 15 F.3d 1374, 1379 (6th Cir. 1994) (same). Accordingly, where a certain aspect of an employment situation creates a religious conflict for a particular employee, the employer must take some initial step to reasonably accommodate the religious belief of that employee; "[i]f the employer's efforts fail to eliminate the employee's religious conflict, the burden remains on the employer to establish that it is unable to reasonably accommodate the employee's religious beliefs without incurring undue hardship." Smith, 827 F.2d at 1086 (citing Am. Postal Wkrs Union v. Postmaster General, 781 F.2d 772, 776 (9th Cir. 1986); McDaniel v. Essex Intern., Inc., 571 F.2d 338, 341 (6th Cir.1978)). Carter's religion forbids him to work from sundown Friday to sundown Saturday. When Bosch assigned Carter a mandatory overtime shift on Friday nights beginning in July 2002, it created a conflict with this aspect of his religion. The district court held that Bosch reasonably accommodated Carter's religious beliefs by permitting Carter and the union to look for "volunteers to work overtime for Carter on his Sabbath" (R81 at 10, 14-15, JA _____), despite the fact that it is undisputed that Bosch's efforts failed to eliminate Carter's religious conflict. This was error. Under Smith, Bosch violated Title VII unless it can establish that "it is unable to reasonably accommodate [Carter's] religious beliefs without incurring undue hardship." Smith, 827 F.2d at 1086. In support of its holding that Bosch reasonably accommodated Carter's religious belief, the district court relies on the Commission's Guidelines on Discrimination Because of Religion, which, according to the court, compel the conclusion that "‘voluntary swapping' of shifts is a reasonable accommodation." R81 at 7, JA ____(citing 29 C.F.R. § 1605.2(d)(i)). This misses the point. The Commission's guideline states only that an employer can use a "voluntary swap" as a means of providing a substitute for an employee who is unable to work an assigned shift because of his religious beliefs, and that it is "generally possible" to accommodate employees in this way without undue hardship. As we discuss infra, at 28-30, there is a factual dispute in this case as to whether Bosch ruled out a shift swap as a possible accommodation. However, even if the company did not rule out this option, it is undisputed that no shift swap occurred and, accordingly, Carter's religious conflict was not resolved by Bosch's response to his request for accommodation. Therefore, the district court erred in holding that Bosch reasonably accommodated Carter's religious belief. Furthermore, there is no evidence suggesting that the failure to resolve Carter's religious conflict was attributable to an unreasonable failure by Carter to take advantage of a means of accommodation offered by Bosch. Cf. Brener v. Diagnostic Ctr Hosp., 671 F.2d 141, 145-46 (5th Cir. 1982) (employer not liable under Title VII where employee "did not fully explore the possibilities for accommodation within the pharmacy's flexible scheduling system before he sought additional action from the hospital"). On the contrary, it is undisputed that Carter sought diligently to find substitutes using the means made available to him by the company. See, e.g., R75, Exh. 23 at 46-50, JA ____. II. BOSCH FAILED TO ESTABLISH THAT IT COULD NOT HAVE RESOLVED CARTER'S RELIGIOUS CONFLICT WITHOUT UNDUE HARDSHIP BY PERMITTING HIM TO ARRANGE A SHIFT SWAP. Because Bosch failed to resolve the conflict between Carter's religious beliefs and his work obligations, it violated Title VII unless it can establish that it could not reasonably accommodate Carter's religious beliefs without undue hardship. Smith, 827 F.2d at 1086. The district court stated that it was not necessary to consider whether other measures might have reasonably accommodated Carter without undue hardship because of its erroneous view that the company had already offered a reasonable accommodation. Although the district court did not directly answer the question of whether Bosch could have reasonably accommodated Carter's religion, the court erroneously suggests that, due to the emergency situation at the Bosch plant, the only way Bosch could have permitted Carter to have his Sabbath off would have been to require an unwilling employee to substitute for him or to operate short-staffed. While Title VII does not require an employer to take such extreme measures, the evidence supports a finding that Bosch could have reasonably accommodated Carter without violating the rights of other employees or causing Bosch undue hardship. The evidence would support a finding that Bosch could have accommodated Carter by assisting him in arranging a shift-swapping agreement like the one he previously had in the foundry. The district court suggests that Bosch was willing to permit Carter to enter into a shift-swapping arrangement like the one he had in the foundry, and the only reason this did not work was because no volunteers could be found. See R81 at 10; JA ____. On the contrary, a reasonable jury could find based on the evidence in the record that Bosch effectively precluded Carter from shift swapping. In support of its conclusion that Bosch would have permitted a shift-swapping arrangement, the court relies on an e-mail from James in Bosch's HR department asking a union official whether Carter had "sought out another person to make an arrangement similar to the one he had in the foundry." Id. However, this document does not establish that Bosch would have agreed to such an arrangement if Carter or the union had found someone willing to swap shifts; it indicates only that James did not rule out the possibility of a shift swap at that time. Furthermore, there is other evidence indicating that Bosch officials would not have permitted a shift swap. Carter testified that his supervisor, Nedoba, directly told him that he could not have a shift-swapping arrangement in the machine shop. R75, Exh. 18 at 77. This is particularly relevant because, as HR manager Robbins testified, the authority to grant or deny voluntary swaps typically rested with the supervisors, not HR. R75, Exh. 25 at 107; cf. R81 at 12 (district court's contrary finding that Carter and his supervisor could not make a shift- swapping arrangement without the involvement of HR and the union). In any event, there is evidence that HR was also opposed to permitting Carter to swap shifts. Union official Tyler testified that HR representative "James did not agree [] to the institution of voluntary swaps."<5> R46, Exh. 8 at 2, JA _____. The district court put substantial emphasis on the fact that Bosch had in place a system for obtaining substitutes to work overtime shifts and that Carter and the union unsuccessfully attempted to use this system to find volunteers to work Carter's Friday night shift for him. Contrary to the court's view, this does not establish that voluntary shift-swapping was not a viable way of resolving Carter's religious conflict. The existing volunteer system at Bosch identified by the district court as a reasonable accommodation failed to work because it was not designed to identify employees who were willing to swap shifts. Rather the procedures were developed to assist employees wishing to work an additional shift, replacing someone who would be excused from overtime. As the district court noted, due to the generally heavy work schedule at the plant and, specifically, the fact that Carter's "department was in a 100% capacity situation and overtime was already mandatory for other employees in addition to Carter," it was highly unlikely that Carter would find volunteers willing to work an additional shift. R81 at 12, JA _____. However, the district court overlooked the fact that finding persons willing to work a different shift rather than an additional shift would not be similarly unlikely. If anything, the fact that many other employees were assigned mandatory overtime would increase the likelihood that one of them would be interested in swapping their overtime shift for Carter's. Accordingly, the fact that no volunteers were found under Bosch's system does not establish that a shift-swapping arrangement would not have been an effective means of accommodating Carter's beliefs. In concluding that Bosch met its obligation to reasonably accommodate, the district court analogized the facts of this case with those in Hardison. The district court stated that in Hardison, the Supreme Court held that "the employer made reasonable efforts to accommodate by leaving to the union steward the task of finding someone who was willing to work for the plaintiff." R81 at 9-10, JA ____. Contrary to the district court's conclusion, a comparison of this case to Hardison actually underscores the inadequacy of Bosch's response to Carter's religious conflict. In emphasizing that TWA's efforts to reasonably accommodate were "more than negligible," the Hardison Court emphasized that TWA met with the plaintiff and the union on several occasions and clearly indicated its willingness to permit a shift swap. Hardison, 432 U.S. at 77. These efforts failed because a shift swap was not permitted by the CBA and the union indicated that it would not consider an exception. Here, by contrast, a shift swap was permitted by the CBA. R75, Exh. 21 at 123-24 (union official testifying that permitting someone to swap shifts with Carter would not violate the CBA). Furthermore, contrary to the situation in Hardison, here the union fully supported a shift swap, and the employer, Bosch, repeatedly rebuffed the union's requests to meet to discuss accommodating Carter. Even when Carter's termination was imminent, Bosch's HR manager Robbins refused to meet. R75, Exh.23 at 46, 49-51, JA_____.<6> For purposes of summary judgment, testimony Robbins that he had "numerous" informal discussions with Bosch HR representative James and with the union "brainstorming" to find ways to accommodate Carter should not be credited. This testimony directly conflicts with the testimony of James and the union representatives. R75, Exh. 25 at 93. Rather than discussing ways to accommodate Carter, James testified that his conversation with Robbins consisted of "[n]othing more than" Robbins stating that the agreement Carter entered while in the foundry to swap shifts does not apply to his position in the machine shop. R75, Exh. 17 at 36. Union representatives similarly testified that they were stonewalled by HR. R75, Exh. 21 at 102-03; R75, Exh. 23 at 38-41. The sum total of Bosch's response to the request for an accommodation was to tell Carter and the union repeatedly that they must identify a workable accommodation and only then would it decide whether or not to discuss accommodating Carter. Based on this evidence, a reasonable jury could conclude that Bosch failed to meet its obligation to make efforts to accommodate which were, at minimum, "more than negligible." Hardison, 432 U.S. at 77. Not only does the evidence indicate that Bosch could have resolved Carter's religious conflict by assisting him in arranging a shift swap, but there is nothing to suggest that doing so would have caused Bosch undue hardship. "Undue hardship means something greater than hardship." Anderson v. Gen. Dynamics Covair Aerospace Div., 589 F.2d 397, 402 (9th Cir. 1978). Thus, "an employer does not sustain [its] burden of proof merely by showing that an accommodation would be bothersome to administer or disruptive of the operating routine." Draper v. United States Pipe & Foundry Co., 527 F.2d 515, 520 (6th Cir. 1975). Nor can the employer rely on speculation or hypothesis. Smith, 827 F.2d at 1086 (an employer "cannot rely merely on speculation" to demonstrate "undue hardship"); General Dynamics, 589 F.2d at 402 (undue hardship is not proven by assumptions or opinions based on hypothetical facts). Because Bosch bears the burden of proof on undue hardship, it is not entitled to summary judgment unless the evidence conclusively proves that accommodating Carter would impose an undue hardship. See Calderone, 799 F.2d at 258-59 (for defendant to obtain summary judgment on an affirmative defense, evidence "must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party") (internal quotation omitted). Here Bosch put forth no evidence that it would have incurred any hardship, financial or otherwise, had it accommodated Carter's request to assist in identifying persons who would be willing to swap shifts voluntarily. Smith, 827 F.2d at 1086 (an employer must "present evidence of actual undue hardship; it cannot rely merely on speculation" or hypothetical hardship.)<7> In its brief below, Bosch argued that it would be impossible to reasonably accommodate Carter's religious beliefs because Carter would accept "only an accommodation that waived all obligations for Saturday work," and this absolutist position would impose on Bosch an undue hardship "as a matter of law." R78 at 5, JA ______ (citing Cooper, 15 F.3d at 1379-80). In making this argument Bosch relies entirely on Carter's rejection of a proposed Memorandum of Agreement which would have reinstated Carter at the Bosch plant. Id. Carter, however, did not demand an absolute guarantee that he would not be scheduled for Saturday work. Carter only objected to a provision in the proposal that stated "[w]hen there are no volunteers to cover Mr. Carter's Saturday overtime, he will be required to work that Saturday overtime." R78, Exh 18 to Carter Depo., ¶6, JA ___; R78, Carter Depo. at 119, 125-26, JA _____. Carter explained that he was concerned that, by agreeing to this provision, he would have waived the leave provisions available to all other full-time employees, such as the PAAs and the 48-hour mandatory excusal provision. Id. at 127. Moreover, even if Bosch's characterization was accurate, it would not prove undue hardship "as a matter of law." This Court's decision in Cooper stands for the proposition that an employer proves undue hardship under Hardison where "all" employees are required to work on the day creating a religious conflict, and where the defendant demonstrates that it would have been required either "to hire an additional worker to work the entire week in order to allow [plaintiff] to take every Saturday off" or lose production. Id. at 1379-80, n.3. In this case, not "all" employees were required to work overtime; only those in certain departments. And the employees required to work overtime were not required to work the same shift; rather, Bosch staffed shifts to cover "24 hours a day, 7 days a week." R46 at Exh. 2, ¶7. Further, unlike the defendant in Cooper, Bosch did not proffer any evidence that it would have been required to hire an additional worker or suffer production loss if it accommodated Carter. It introduced no evidence of hardship. Accordingly, Bosch was not entitled to summary judgment because the evidence does not conclusively prove that Carter's religious beliefs could not have been reasonably accommodated without undue hardship to Bosch. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and this case should be remanded to the district court for further proceedings. Respectfully submitted, ERIC S. DREIBAND General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel _______________________ SUSAN L.P. STARR Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., #7042 Washington, D.C. 20507 (202) 663-4727 (202) 663-7090 (fax) May 10, 2005 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in F.R.A.P. 32(a)(7)(B). This brief contains words 8297. See Fed. R. App. P. 29(d). The brief was prepared using the WordPerfect 9 processing system, in 14-point proportionally spaced type for text and 14-point type for footnotes, both in Times New Roman. See Fed. R. App. P. 32(a)(5). _________________________ Susan L.P. Starr, Esq. DESIGNATION OF CONTENTS OF APPENDIX +------------------------------------------------------------------------+ | DESCRIPTION OF ENTRY | DATE FILED IN | RECORD ENTRY | | | | | | | U.S.D.C. | NUMBER | |-----------------------------------------+---------------+--------------| | District Court Docket Sheet | | | |-----------------------------------------+---------------+--------------| | Complaint | 9/29/2003 | 1 | |-----------------------------------------+---------------+--------------| | Opinion and Order Granting Summary | 10/21/2004 | 81 | | Judgment | | | |-----------------------------------------+---------------+--------------| | Judgment | 10/21/2004 | 82 | |-----------------------------------------+---------------+--------------| | Notice of Appeal | 12/17/2004 | 94 | |-----------------------------------------+---------------+--------------| | Opinion and Order Denying | 04/28/2005 | 96 | | Reconsideration | | | |-----------------------------------------+---------------+--------------| | D's Reply Brief - page 5 only | 12/22/2003 | 29 | |-----------------------------------------+---------------+--------------| | Exhibit to D's Reply Brief - Carter's | 12/22/2003 | 29 | | Deposition | | | |-----------------------------------------+---------------+--------------| | Exhibit to D's Reply Brief - Holmes | 12/22/2003 | 29 | | Deposition | | | |-----------------------------------------+---------------+--------------| | Exhibit to D's Reply Brief - Memorandum | 12/22/2003 | 29 | | of Agreement, Carter Depo. Exh. #18 | | | |-----------------------------------------+---------------+--------------| | Exhibit to D's Reply Brief - 7/29/02 | 12/22/2003 | 29 | | E-mails | | | +------------------------------------------------------------------------+ DESIGNATION OF CONTENTS OF APPENDIX (Cont) +------------------------------------------------------------------------+ | Exhibit to D's Reply Brief - Tyler Deposition | 12/22/2003 | 29 | |------------------------------------------------------+------------+----| | Exhibit to P's Brief in Opposition of SJ motion - | 1/12/2004 | 46 | | Exh. 2 Carter Declaration | | | |------------------------------------------------------+------------+----| | Exhibit to P's Brief in Opposition of SJ motion - | 1/12/2004 | 46 | | Exh. 3 Holmes Declaration | | | |------------------------------------------------------+------------+----| | Exhibit to P's Brief in Opposition of SJ motion Exh. | 1/12/2004 | 46 | | 4 - 2/18/02 Union Grievance | | | |------------------------------------------------------+------------+----| | Exhibit to P's Brief in Opposition of SJ motion | 1/12/2004 | 46 | | | | | | Exh. 5 - 3/18/02 Union Grievance | | | |------------------------------------------------------+------------+----| | Exhibit to P's Brief in Opposition of SJ motion Exh. | 1/12/2004 | 46 | | 6 - Collective Bargaining Agreement (selected | | | | provisions) | | | |------------------------------------------------------+------------+----| | Exhibit to P's Brief in Opposition of SJ motion Exh. | 1/12/2004 | 46 | | 7 - Carter's Attendance Record | | | |------------------------------------------------------+------------+----| | Exhibit to P's Brief in Opposition of SJ motion | 1/12/2004 | 46 | | | | | | Exh. 8 - Tyler Declaration | | | |------------------------------------------------------+------------+----| | Exhibit to P's Brief in Opposition of SJ motion | 1/12/2004 | 46 | | | | | | Exh. 9 - 8/06/02 Union Grievance | | | |------------------------------------------------------+------------+----| | Exhibit to P's Brief in Opposition of SJ motion Exh. | 1/12/2004 | 46 | | 10 - 9/27/02 Union Grievance | | | |------------------------------------------------------+------------+----| | Exhibit to P's Brief in Opposition of SJ motion | 1/12/2004 | 46 | | | | | | Exh. 11 - Kiosk (pages 2-4) | | | |------------------------------------------------------+------------+----| | Exhibit to P's Brief in Opposition of SJ motion Exh. | 1/12/2004 | 46 | | 12 - Robbins Declaration | | | +------------------------------------------------------------------------+ DESIGNATION OF CONTENTS OF APPENDIX (Cont) +------------------------------------------------------------------------+ | Exhibit to P's Brief in Opposition of SJ motion Exh. | 1/12/2004 | 46 | | 13 - 2/15/02 E-mail | | | |-------------------------------------------------------+-----------+----| | Exhibit to P's Brief in Opposition of SJ motion Exh. | 1/12/2004 | 46 | | 14 - 5/27/03 Bosch letter | | | |-------------------------------------------------------+-----------+----| | Exhibit to P's Brief in Opposition of SJ motion Exh. | 1/12/2004 | 46 | | 15 - Attendance Policy | | | |-------------------------------------------------------+-----------+----| | Exhibit to P's Brief in Opposition of SJ motion Exh. | 1/12/2004 | 46 | | 16 - 7/25/02 E-mail re: PAAs | | | |-------------------------------------------------------+-----------+----| | Exhibit to P's Brief in Opposition of SJ motion Exh. | 1/12/2004 | 46 | | 17 - James Deposition | | | |-------------------------------------------------------+-----------+----| | Exhibit to P's Brief in Opposition of SJ motion Exh. | 1/12/2004 | 46 | | 18 - Carter Deposition | | | |-------------------------------------------------------+-----------+----| | Exhibit to P's Brief in Opposition of SJ motion Exh. | 1/12/2004 | 46 | | 19 - Nedoba Deposition | | | |-------------------------------------------------------+-----------+----| | Exhibit to P's Brief in Opposition of SJ motion Exh. | 1/12/2004 | 46 | | 20 - Carter's PAA requests | | | |-------------------------------------------------------+-----------+----| | Exhibit to P's Brief in Opposition of SJ motion Exh. | 1/12/2004 | 46 | | 21 - Holmes Deposition | | | |-------------------------------------------------------+-----------+----| | Exhibit to P's Brief in Opposition of SJ motion Exh. | 1/12/2004 | 46 | | 22 - Sistrunk Deposition | | | |-------------------------------------------------------+-----------+----| | Exhibit to P's Brief in Opposition of SJ motion Exh. | 1/12/2004 | 46 | | 23 Tyler Deposition | | | |-------------------------------------------------------+-----------+----| | Exhibit to P's Brief in Opposition of SJ motion Exh. | 1/12/2004 | 46 | | 24 - Hulen Deposition | | | |-------------------------------------------------------+-----------+----| | Exhibit to P's Brief in Opposition of SJ motion Exh. | 1/12/2004 | 46 | | 25 - Robbins Deposition | | | +------------------------------------------------------------------------+ | Exhibit to P's Brief in Opposition of SJ motion Exh. | 1/12/2004 | 46 | | 26 - Gaytan Deposition | | | |-------------------------------------------------------+-----------+----| | Exhibit to P's Brief in Opposition of SJ motion Exh. | 1/12/2004 | 46 | | 32 - Carter's Administrative Charge | | | |-------------------------------------------------------+-----------+----| | Exhibit to P's Brief in Opposition of SJ motion Exh. | 1/12/2004 | 46 | | 33 - 9/17/02 Bosch Letter | | | +------------------------------------------------------------------------+ CERTIFICATE OF SERVICE I hereby certify that one copy of the foregoing proof brief ha been sent via first class mail, postage prepaid, to the following counsel of record: COUNSEL FOR DEFENDANT-APPELLEE Michael J. Sheehan Connelly Sheehan Moran 150 S Wacker Dr., Ste. 1600 Chicago, IL 60606 _______________________ Susan L.P. Starr, Esq. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7042 Washington, D.C. 20507 May 10, 2005 TABLE OF AUTHORITIES FEDERAL CASES Anderson v. General Dynamics Covair Aerospace Division, 589 F.2d 397 (9th Cir. 1978) . . . . . 32 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . . . . 3 Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986) . . . . . . .16, 24 Boomsma v. Greyhound Food Management, Inc., 639 F. Supp. 1448 (W.D. Mich. 1986) . . . . . 31, 34 Brener v. Diagnostic Center Hospital, 671 F.2d 141 (5th Cir. 1982) . . . . . . 26 Calderone v. United States, 799 F.2d 254 (6th Cir.1986). . . .3, 33 Cooper v. Oak Rubber Co., 15 F.3d 1374 (6th Cir. 1994) . . . . . . 24, 34, 35 Draper v. United States Pipe & Foundry Co., 527 F.2d 515 (6th Cir. 1975) . . . . . . . . . . 32 Goldmeier v. Allstate Insurance Co., 337 F.3d 629 (6th Cir. 2002) . . . . . . 24 Johnson v. Karnes, 398 F.3d 868 (6th Cir. 2005) . . . . . . . . . 3 Lewis v. Alexander, 987 F.2d 392 (6th Cir. 1993) . . . . . . . . . 5 Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . 3 McGuire v. General Motors Corp., 956 F.2d 607 (6th Cir. 1992) . . . . . . 16 Smith v. Pyro Mining Co., 827 F.2d 1081 (6th Cir. 1987) . . . . . .passim Therma-Scan, Inc. v. Thermoscan, Inc., 295 F.3d 623 (6th Cir.2002) . . . . . . . . . 2 Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) . . . . . . .passim DOCKETED CASES Saroli v. Automation & Modular Components, Inc., No. 03-2395, --- 3d -- 2005 WL 946782 (6th Cir. April 26, 2005) . . . . . . . . . 3 FEDERAL STATUTES 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. §§ 1331 and 1343(a)(4) . . . . . . . . . . . . . . . 2 29 C.F.R. § 1605.2(d)(i) . . . . . . . . . . . . . . . . . . . . .25 Fed. R. App. P. 29(d) . . . . . . . . . . . . . . . . . . . . . .37 Fed. R. App. P. 32(a)(5) . . . . . . . . . . . . . . . . . . . . .37 Fed.R.Civ.P. 56(c) . . . . . . . . . . . . . . . . . . . . . 2 Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., . . . . . passim ************************************************* <1> As discussed infra, at p. 5, n.3, the plaintiffs filed motions for reconsideration in the district court. However, since those motions were filed more than ten days after judgment was entered, they had no effect on the finality or appealability of the final judgment entered by the district court on October 21, 2004. <2> “R” refers to the docket number assigned the document by the district court and “JA” refers to the joint appendix to be filed in this appeal. <3> On April 28, 2005, after the EEOC’s notice of appeal was filed and after the appeal was docketed in this Court, the district court entered an order purporting to deny the plaintiffs’ motions for reconsideration. R96, JA ____. Because, as noted supra, at p. 2, n.1, the motions for reconsideration were not filed within ten days of entry of judgment in district court, they did not affect the finality of the judgment. Accordingly, once the EEOC filed a notice of appeal, the district court lost jurisdiction over this case, and its order was ineffective. See generally, Lewis v. Alexander, 987 F.2d 392, 394 (6th Cir. 1993) (“as a general rule, the district court loses jurisdiction over an action once a party files a notice of appeal, and jurisdiction transfers to the appellate court”). <4> As noted, supra at n.2, on April 28, 2005, the district court issued a decision denying the Commission’s motion for reconsideration. In the decision, the court largely reiterates its earlier rationale. The court restates its view that Bosch offered a reasonable accommodation even though its response did not eliminate the conflict. R.96 at 5. The court also emphasized the CBA’s provisions even though both Bosch and the union agree that a voluntary shift swap similar to what Carter proposes would not violate the CBA. Id. at 9. The court also rejected the Commission’s reliance in its motion for reconsideration on deposition testimony of a union steward which was not presented to the court before the summary judgment decision because the Commission knew of the existence of this witness and did nothing to present his testimony sooner. Id. at 7. We note that, in this brief, we rely entirely on evidence which was before the court when it considered the motion for summary judgment. <5> The district court suggests Tyler contradicted herself in her deposition when she stated that James “said we can get volunteers from out of class.” R81 at 13, JA ___. However, volunteers from out of class are persons willing to work an additional shift and, as noted below, workers willing to work additional shifts and those willing to trade shifts are not the same. <6> After Carter filed a discrimination charge alleging a Title VII violation, Robbins apparently took a different view. According to his testimony, during a hearing on Carter’s union grievance Robbins was then willing to “brainstorm” with Carter and the union to “see if there’s anything else we can think of that we haven’t talked about before” to accommodate Carter. R75, Exh. 25 at 93-94 (internal citation omitted). Despite this belated effort by Bosch to consider accommodating Carter, Robbins continued to characterize Carter’s request as asking, “you know, you should cut the guy a break and excuse his absence” because it was his Sabbath, stating that management “all agreed that we didn’t have a reasonable situation in front of us.” R75, Exh. 25 at 55, 93-94. See also Boomsma v. Greyhound Food Mgmt., Inc., 639 F. Supp. 1448, 1454 (W.D. Mich. 1986) (efforts to accommodate after a “plaintiff had suffered adversely for adhering to [his religious] belief” does not relieve the employer of his ongoing obligation to reasonably accommodate). <7> The district court suggests that it would have been necessary to negotiate an exception to the CBA in order to accommodate Carter. See R81 at 12 (Carter’s supervisor lacked authority to negotiate with Carter to permit his “excusal from Saturday overtime”); id. at13 (there was a “legal requirement that Bosch negotiate with the Union on the issue of relieving an employee from the burden imposed by the contractual requirement of equalization of overtime”). These comments, however, ignore the fact that a shift swap would not reduce the amount of overtime Carter would work and, therefore, would not violate the contractual requirement that mandatory overtime be assigned equally to all employees. See generally, R75, Exh. 21 at 122-23 (“I believe skipping Mr. Carter without having the negotiation, sit-down [sic] with the union would have violated the next persons’s rights in collective bargaining . . . . [Carter] never told me he wanted to be skipped over.”). The fact that shift trades can occur without violating the CBA was apparently recognized by Bosch because HR manager Robbins testified that “shift trades didn’t go through HR.” R75, Exh. 25 at 107, JA _____ (“if people agreed and they did it with their supervisor, and the supervisor approved, the shift trade just took place. And unless - - unless someone was concerned about it, like where the union raised, ‘Oh, they didn’t do that right,’ we wouldn’t know about it.”). See generally Boomsma, 639 F. Supp. at 1455-56 (finding that similar overtime equalization provision does not prohibit voluntary shift swaps).