No. 06-2203 ___________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ___________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and DAVID WISE, Plaintiff-Intervenor-Appellant, v. FIRESTONE FIBERS & TEXTILES COMPANY, a division of BFS Diversified Products, Inc., BFS DIVERSIFIED PRODUCTS, INC., and BRIDGESTONE AMERICAS HOLDING, INC. Defendants-Appellees. ______________________________________________________ On Appeal from the United States District Court for the Western District of North Carolina, Hon. Robert J. Conrad, Jr., Chief District Judge ______________________________________________________ BRIEF OF PLAINTIFF-APPELLANT THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ______________________________________________________ RONALD S. COOPER U.S. EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel LORRAINE C. DAVIS 1801 L Street, N.W., Room 7024 Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4870 JAMES M. TUCKER James.Tucker@EEOC.gov Attorney Table of Contents Table of Authorities . . . . . . . . . . . . ii Jurisdictional Statement. . . . . . . . . 1 Statement of the Issues. . . . . . . . . . . 1 Statement of the Case. . . . . . . . . . . . 2 Statement of Facts. . . . . . . . . . . . 3 District Court Decision. . . . . . . . . 13 Summary of Argument. . . . . . . . . . . . 17 Argument. . . . . . . . . . . . . . . . . . 18 I. Standard of Review . . . . . . 18 II. The District Court Erred in Concluding that Bridgestone Americas Holding, Inc. Is Not a Proper Defendant in this Suit. . . . . 20 III. A Reasonable Finder of Fact Could Conclude that Firestone Failed to Provide Wise a Reasonable Accommodation for his Religious Practices 24 IV. A Reasonable Finder of Fact Could Conclude that Firestone Failed to Show that Providing Reasonable Accommodation to Wise would have Imposed an Undue Hardship on the Conduct of its Business 40 Conclusion. . . . . . . . . . . . . . . . . . 47 Request for Oral Argument. . . . . . . . . 47 Certificate of Compliance Certificate of Service Table of Authorities Cases Page(s) Alvarado v. Bd. of Tr. of Montgomery Cmty. Coll., . . . . . . . . . . . . . 848 F.2d 457 (4th Cir. 1988)20, 21 Ansonia Bd. of Ed. v. Philbrook, . . . . . . . . . . . . . . . . . . 479 U.S. 60 (1986)passim Baker v. The Home Depot, . . . . . . . . . . . . . . . .445 F.3d 541 (2d Cir. 2006)28 Benton v. Carded Graphics, Inc., . .No. 93-1675, 1994 WL 249221 (4th Cir. June 9, 1994)passim Brown v. Gen. Motors Corp., . . . . . . . . . . . . . . . 601 F.2d 956 (8th Cir. 1979)44 Causey v. Blalog, . . . . . . . . . . . . . . . 162 F.3d 795 (4th Cir. 1998)21 Celotex Corp. v. Catrett, . . . . . . . . . . . . . . . . . . . .477 U.S. 317 (1986)19 Chalmers v. Tulon Co. of Richmond, . . . . . . . . .101 F.3d 1012 (4th Cir. 1996)25, 31, 41, 46 Cooper v. Oak Rubber Co., . . . . . . . . . . . . . . . 15 F.3d 1375 (6th Cir. 1994)28 EEOC v. Ilona of Hung., Inc., . . . . . . . . . . . . .108 F.3d 1569 (7th Cir. 1996)28, 29 EEOC v. Ithaca Indus., Inc., . . . . . . . . . . . . . 849 F.2d 116 (4th Cir. 1988)passim EEOC v. Universal Mfg. Corp., . . . . . . . . . . . . . .914 F.2d 71 (5th Cir. 1990)28, 30 EEOC & Wise v. Firestone Fibers & Textiles, Inc., et al., No. 04-467, Memorandum and Order (W.D.N.C. Sept. 13, 2006) . passim Hishon v. King & Spaulding, . . . . . . . . . . . . . . . . . . . . 467 U.S. 69 (1984)33 Howard v. Winter, . . . . . . . . . . . . .446 F.3d 559 (4th Cir. 2006)18, 19 Miller v. Drennon, . . .No. 91-2166, 1992 WL 137578 (4th Cir. June 19, 1992).30 Olsen v. Marshall & Isley, . . . . . . . . . . . . . . . 267 F.3d 597 (7th Cir. 2001)21 Opuku-Boateng v. California, . . . . . . . . . . . . . . . 95 F.3d 1461 (9th Cir. 1996)28 Philbrook v. Ansonia Bd. of Ed., . . . . . . . . . . . . . . . .757 F.2d 476 (2d Cir. 1985)44 Reeves v. Sanderson Plumbing Prods., Inc., . . . . . . . . . . . . . . . . . . . .530 U.S. 133 (2000)19 Romaine v. Kurek, . . . . . . . . . . . . . . . 836 F.2d 241 (6th Cir. 1987)22 Trans World Airlines, Inc. v. Hardison, . . . . . . . . . . . . . . . . 432 U.S. 63 (1977)16, 40, 45 U.S. Airways, Inc. v. Barnett, . . . . . . . . . . . . . . . . . . . .535 U.S. 391 (2002)29 Wallace v. SMC Pneumatics, Inc., . . . . . . . . . . . . . . .103 F.3d 1394 (7th Cir. 1997)20 Statutes 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . .1 42 U.S.C. § 2000e. . . . . . . . . . . . . . . . . . . .2, 47 42 U.S.C. § 2000e(j).. . . . . . . . . . . . . . . . . . .25 42 U.S.C. § 2000e-2(a) . . . . . . . . . . . . . . . . . . 24 42 U.S.C. § 2000e-5(f)(1). . . . . . . . . . . . . . . . . 20 42 U.S.C. § 2000e-5(f)(3). . . . . . . . . . . . . . . . . 1 Regulations 29 C.F.R. § 1605.2(c). . . . . . . . . . . . . . . . . . . 26 Jurisdictional Statement This Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, which provides the Circuit Courts of Appeals with jurisdiction over appeals from the final decisions of United States District Courts. This Court has jurisdiction over appeals from the United States District Court for the Western District of North Carolina. The United States District Court for the Western District of North Carolina had jurisdiction over this case pursuant to 42 U.S.C. § 2000e-5(f)(3), which confers upon the district courts jurisdiction over actions brought under Title VII of the Civil Rights Act of 1964. The United States District Court for the Western District of North Carolina entered final judgment in this case on September 13, 2006. No post-judgment motions have been filed in the district court. Pursuant to Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure, the Commission timely filed its Notice of Appeal in the district court on November 9, 2006. Statement of the Issues I. Whether BAH is a proper defendant in this litigation despite its not being named in the charge of discrimination filed by Wise. II. Whether a reasonable finder of fact could conclude that Firestone failed to provide a reasonable accommodation for Wise's religious conflict with his work schedule. III. Whether a reasonable finder of fact could conclude that Firestone failed to prove that providing Wise a reasonable accommodation would cause it to suffer an undue hardship on the conduct of its business. Statement of the Case On September 9, 2004, the Commission filed its Complaint in this action against Firestone Fibers & Textiles, Inc., a division of BFS Diversified Products, Inc., BFS Diversified Products, Inc., and Bridgestone Americas Holding, Inc. (collectively "Firestone"), in the United States District Court for the Western District of North Carolina. Joint Appendix ("JA") 5 (Complaint). The Commission alleged that Firestone had violated Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. § 2000e et seq., when it failed to provide accommodation for the religious beliefs of David Wise and subsequently discharged him because of his religion. Id. Mr. Wise sought to intervene in the action, and the court granted his motion. JA.1,17 (district court docket sheet, Complaint in Intervention). On August 1, 2005, Firestone moved for summary judgment on the Commission's and Wise's claims, and sought to have defendant Bridgestone Americas Holding, Inc. dismissed from the suit. JA.2 (docket sheet). The Commission and Wise opposed the motion. JA.2-3 (docket sheet). In a Memorandum and Order dated September 13, 2006, the court granted Firestone's motion in its entirety. JA.3, 582 (docket sheet, Memorandum and Order). Statement of Facts David Wise first became employed by Firestone in December 1994. JA.143 (Jozwiakowski ("Joz.") I Dep. at 54). A few years later, Wise began working for Firestone as a Laboratory Technician. JA.51-54 (Wise Dep. at 45-48). Sometime thereafter, Wise moved to the position of Lab Floater. JA.53 (Wise Dep. at 47). In that position, Wise filled in as a Laboratory Technician at the company's facilities in Gastonia and King's Mountain, North Carolina, when other lab employees were off work for scheduled or unscheduled absences. JA.54-56, 71-72, 146 (Wise Dep. at 48-50, 85-86; Joz. I Dep. at 57). Wise worked a daytime shift from 7 a.m. to 3 p.m., Monday through Friday. JA.71 (Wise Dep. at 85). Wise was regarded by Firestone management as a good worker who was very quiet, was very familiar with his job, and had good knowledge of all the areas he covered as a Lab Floater. JA.262 (Cash II Dep. at 115). In 2001, Wise became active in the Living Church of God. JA.34 (Wise Dep. at 25). One of the tenets of Wise's faith is that he cannot work during the Sabbath—from sundown Friday to sundown Saturday. JA.36-37 (Wise Dep. at 27-28). Wise's faith also requires that he not work on certain biblical Holy Days—the evening before Passover, the first and last days of the Feast of Unleavened Bread, the Day of Pentecost, the Feast of Trumpets, the Day of Atonement, the Feast of the Tabernacles, and the Last Great Day. JA.45-48 (Wise Dep. at 39-42). Wise's Lab Floater position presented no conflict with his faith's religious proscription against working on the Sabbath, as he declined to work voluntary overtime during the Sabbath, and he used vacation time for his absences on Holy Days. JA.74-75, 103-04 (Wise Dep. at 88-89, 130-31). At the end of February 2002, Firestone announced a layoff and restructuring of its operations. JA.60-61 (Wise Dep. at 59-60). As a result, Wise was bumped from his daytime Lab Floater position by an employee with more seniority, to an eight-hour, second-shift Laboratory Technician position at the King's Mountain facility. JA.62, 64-65 (Wise Dep. at 61, 69- 70). This change required Wise to work the hours of 3 p.m. to 11 p.m. Monday through Friday, as well as those Saturdays when the "treating unit" was in operation at the facility.<1> JA.93, 150-51, 237-38 (Wise Dep. at 117; Joz. I Dep. at 61-62; Cash I Dep. at 30-31). When Wise learned of this new job assignment, he contacted Kevin Cash, the Lab Manager, and informed Cash that as a Sabbath keeper, he needed to be off from sundown on Friday to sundown on Saturday, and that his new work schedule would conflict with this religious requirement. JA.93 (Wise Dep. at 117). Cash advised that he would speak to his boss, Jack Gibbons, and that they would have to present the issue to Firestone's Human Resources department. JA.94 (Wise Dep. at 118). Cash and Wise then met with Gibbons and Dennis Jozwiakowski, Firestone's Human Resources Manager. JA.95 (Wise Dep. at 119). Wise requested that he be excused from working from Friday after sundown to Saturday after sundown. JA.95, 144-45 (Wise Dep. at 119; Joz. I Dep. at 55-56). Wise did not mention his need to be absent from work on religious holidays, as he had previously scheduled vacation time for most of his religious holidays for the upcoming year. JA.103-04 (Wise Dep. at 130-31). After receiving Wise's accommodation request, Jozwiakowski reviewed Wise's seniority level, as well as the jobs, shift schedules, and seniority level of the other employees at the Gastonia and King's Mountain facilities, to determine whether, consistent with the controlling collective bargaining agreement ("CBA"), Wise had the seniority to transfer to a job on another shift that would not interfere with his religious beliefs. JA.148, 150 (Joz. I Dep. at 59, 61). Jozwiakowski determined that Wise lacked the requisite seniority for such a move. JA.149 (Joz. I Dep. at 60). Jozwiakowski also considered "the reasonableness of not having anybody on the job," but did not investigate or otherwise consider any other accommodation options. JA.150 (Joz. I Dep. at 61). Approximately one week later, Jozwiakowski met again with Wise and Cash. Id. In this meeting, Jozwiakowski told Wise that his accommodation request had been denied because Wise could not "compete [for] a standard shift," and there was "no way that [they] could see to accommodate his need." JA.96, 150-51, 153 (Wise Dep. at 120; Joz. I Dep. at 61-62, 64). Jozwiakowski advised Wise that he had available to him floating holidays, vacation days, and sixty hours of leave permitted under the company's attendance policy.<2> JA.153 (Joz. I Dep. at 64). Jozwiakowski also stated that once Wise had exhausted his leave options, he would be subject to termination if he exceeded the sixty hours allowed under the attendance policy. Id. According to Cash, the main point made at the meeting was that "no special accommodations" would be provided to Wise. JA.250 (Cash II Dep. at 99). No other accommodation options were presented or discussed at that meeting. JA.153 (Joz. I Dep. at 64). Under Firestone's holiday and vacation policies, employees such as Wise annually received three floating holidays and fifteen eight-hour vacation days. JA.405, 407 (Appendix to Memorandum Supporting Defendants' Motion for Summary Judgment ("Def. Apx.") tab 19 at 23, 26). Under the company's attendance policy, employees can take up to sixty hours of unpaid leave in a rolling calendar year, without needing to offer any justification. JA.165-66, 462 (Joz. I Dep. at 90-91; Def. Apx. tab 21). However, employees are counseled as to their accumulation of hours under the attendance policy when they exceed twenty-four, thirty-six, and forty- eight hours, respectively, and are terminated when they exceed sixty hours. JA.462, 470-72, 477 (Def. Apx. tab 21, 25-27, 32). Jozwiakowski interpreted Wise's accommodation request as asking that his Sabbath absences not count against him under the attendance policy. JA.196 (Joz. 30(b)(6) Dep. at 23). The attendance policy is not part of the CBA. See JA.393-430, 462 (Def. Apx. tab 19 (CBA), 21 (attendance policy)). The CBA does, however, provide that eight-hour-shift employees (such as Wise) who have less than thirty-six hours accumulated under the attendance policy are also eligible to take up to three of their vacation days in half-day increments. JA.406 (Def. Apx. tab 19 at 25, par. F). Firestone also has a shift-swapping policy, by which employees are permitted to swap shifts two times per quarter, for a total of eight times per year. JA.464 (Def. Apx. tab 23). Firestone did not consider or expressly offer the shift-swapping policy as a means to resolve Wise's religious conflict. JA.92, 148-50, 176 (Wise Dep. at 116; Joz. I Dep. at 59-61, 116). Wise did not ask for any shift swaps, as he believed that the shift swap policy—which, again, only permitted employees to swap a total of two shifts during each three-month quarter—would provide little help in resolving his work schedule conflict. JA.83-84 (Wise Dep. at 104-05). After his second meeting with Firestone officials, Wise avoided working the Sabbath and other religious holidays by using his vacation time and accruing unpaid absence hours under the company's attendance policy. JA.261-62, 470-72 (Cash II Dep. at 114-15; Def. Apx. tab 25-27). On Fridays when Wise did not use a half-day or full-day of vacation time to avoid working the Sabbath, he worked up until the time he needed to leave to observe the Sabbath. See JA.514-17 (Plaintiff Intervenor's Memorandum in Opposition to Defendant's Motion for Summary Judgment ("Interv. Memo.") Ex. 15 (Firestone's "Employee Absentee Status Inquiry" report for Wise)). Similarly, on Saturdays when Wise was scheduled to work and did not use vacation time, he would come to work once the Sabbath was concluded and complete his shift. Id. Also, on several occasions when another lab worker was absent on the first (daytime) shift on a Friday, Cash compressed the three eight-hour shifts into two twelve-hour shifts and had Wise cover the daytime 7 a.m.-7 p.m. shift, enabling him to avoid working on the Sabbath. JA.261 (Cash II Dep. at 114). Cash also permitted Wise to take some half-day vacations despite Wise's having accrued more than thirty-six hours under the attendance policy. JA.196 (Joz. 30(b)(6) Dep. at 23). This was in violation of the CBA, see JA.406 (Def. Apx. tab 19 at 25, par. F), but Firestone has neither claimed nor presented evidence that such a violation caused any undue hardship on it or Wise's coworkers. Despite Wise's diligent efforts to utilize the measures identified by Jozwiakowski, and Cash's limited additional assistance, Wise's religious conflict with his work schedule persisted. Roughly seven months after making his accommodation request, Wise had exhausted all his vacation time for the year, and during this same period he continued to accrue unpaid leave hours under the attendance policy. Wise was counseled in late April 2002 for exceeding twenty-four hours of absence time under the attendance policy, in early August 2002 for exceeding thirty-six hours, and on September 18, 2002, for exceeding forty-eight hours. JA.470-72 (Def. Apx. tab 25-27). All of Wise's accumulated absence time was due to his religious observances. JA.472 (Def. Apx. tab 27). No shift ever went uncovered because of Wise's absence for a religious observance. JA.122 (Wise Dep. at 173). While others did cover Wise's shift when he was absent for religious observances, there is no evidence that Firestone ever examined how much overtime—if any—had been paid to the individuals who covered Wise's shift in his absence. See JA.269 (Cash II Dep. at 129) (Cash made no such inquiries or calculations); JA.321 (Kirksey Dep. at 106) (no one at Firestone ever estimated the overtime cost of accommodating Wise). While Jozwiakowski offered in his deposition that Firestone would have to "cover the job with overtime" if it excused Wise from work on the Sabbath, he also admitted that it would make no difference in terms of hardship to the company whether Firestone was paying Wise or some other employee overtime wages to work Wise's shift—"the cost would be the same. It wouldn't matter." JA.150-52, 195-96 (Joz. I Dep. at 61-63, Joz. 30(b)(6) Dep. at 22-23). Wise testified without contradiction that only rarely, if ever, was he not on overtime status by the beginning of the Sabbath each week. JA.122 (Wise Dep. at 173). Despite Jozwiakowski's testimony that Firestone would have to cover Wise's Sabbath absences with overtime, he also testified that he "supposed" he took into account that Wise would likely also be working overtime on any Saturday shifts. JA.151-52 (Joz. I Dep. at 62-63). There is no evidence that Jozwiakowski ever considered if Wise would have been in overtime status while working on Friday shifts. See id. Thomas Kirksey, Firestone's Employee Relations Manager, testified in his deposition that Jozwiakowski told him that accommodating Wise would place an undue hardship on the company by "[f]orcing people to come in and cover" Wise's shift, and "forcing people to possibly rearrange schedules." JA.321 (Kirksey Dep. at 106). However, Firestone offered no evidence to support this assertion. In fact, to the contrary, several of Wise's coworkers—including the shop steward—testified that they did not complain about having to work overtime for Wise and did not ever hear anyone complain about having to work overtime. JA.324-25, 329, 334 (D. Glenn Dep. at 19-20; T. Glenn Dep. at 14; Smith Dep. at 21). One coworker, who had helped cover Wise's shift during his Sabbath-related absences from February to September 2002, testified that she would have been willing to help cover Wise's shift had she been told that he needed a religious accommodation. JA.340-42, 344 (Thomas Dep. at 18-20, 22). Another coworker similarly stated that she would have had no problem covering for Wise so he could observe the Sabbath, and a third coworker stated that she "probably" would have had no problem doing so. JA.325-26, 330 (D. Glenn Dep. at 20-21; T. Glenn Dep. at 16). In addition, the record reflects that Firestone's overtime coverage policy is voluntary, not mandatory, meaning that employees who covered for Wise did so voluntarily. JA.136 (Wise Dep. at 192). On September 3, 2002, Wise submitted a written request to Firestone asking that he be permitted to take an unpaid leave of absence on Monday, September 16, 2002, and from Friday, September 20 through Sunday, September 29, 2002, for the observance of the Day of Atonement and the Feast of the Tabernacles—Holy Days on which his religion does not permit him to work. JA.47-48, 107, 475 (Wise Dep. at 41-42, 135; Def. Apx. tab 30). Wise also submitted to Firestone an absence request form provided by his Minister, describing Wise's religion and the reason for his need to be absent from work on certain Holy Days and stating that "[i]t is the duty of each member to observe these Holy Days to maintain his or her status in the church." JA.476 (Def. Apx. tab 31). Wise made this request pursuant to, and in conformity with, Firestone's leave of absence policy, which permits employees to request personal leaves of absence without pay via written request to the company's HR department. JA.316-17 (Kirksey Dep. at 99- 100). Jozwiakowski discussed Wise's request and Firestone's leave of absence policy with Kirksey, and asked Kirksey to review how Firestone had handled similar requests in the past. JA.155 (Joz. I. Dep. at 66). Firestone then denied Wise's request, without explanation. JA.107-08, 158- 59 (Wise Dep. at 135-36; Joz. I Dep. at 69-70). However, in notes prepared by Kirksey regarding Wise's leave request, Kirksey stated that the request was "denied—don't grant leaves for religious purposes." JA.311-12, 491- 92 (Kirksey Dep. at 77-78; Plaintiff EEOC's Memorandum in Opposition to Defendant's Motion for Summary Judgment ("EEOC Memo") Att. 1). There is no evidence that Firestone considered whether granting Wise's leave request would have accommodated his religious practices, or would have caused Firestone to suffer an undue hardship. Following his religious restrictions, Wise did not report to work on his Holy Days, and as a result, on September 20, 2002, exceeded the sixty- hour absence limit. JA.473 (Def. Apx. tab 28). Kirksey, after consulting with Jozwiakowski, sent Wise a letter explaining that he was terminated. JA.159, 255, 477 (Joz. I Dep. at 70; Cash II Dep. at 106; Def. Apx. tab 32). Wise did not return to work at Firestone. District Court Decision On September 13, 2006, the district court granted Firestone's motion for summary judgment. JA.582 (EEOC & Wise v. Firestone Fibers & Textiles, Inc., et al., No. 04-467, Memorandum and Order, at 1-2 (W.D.N.C. Sept. 13, 2006) ("Order")). After announcing that it was "[t]aking the evidence in the light most favorable to the defendant," the district court first concluded that Bridgestone Americas Holding, Inc. ("BAH") should be dismissed from the action. JA.583 (Order at 2). The court stated that BAH "is a separate corporation which was not identified as a respondent in the original charge," and that the Commission was precluded from stating a claim against a defendant not named in the charge. Id. The court then turned to address the substance of the Commission's case, first acknowledging that Firestone had conceded (for purposes of summary judgment) that the Commission and Wise had established a prima facie case. JA.587 (Order at 6). See also Defendants' Memorandum in Support of their Motion for Summary Judgment ("Def. Memo."), District Court Docket No. ("R.") 18, at 12 n.6 (concession). The court went on to conclude that "Firestone had sufficiently shown that it provided reasonable accommodation for Wise's religious beliefs." JA.587 (Order at 6). The court stated that the Supreme Court, and the Commission's regulations, recognize that "pre-existing policies" can amount to reasonable accommodation of religious beliefs, and then "found" that Firestone's seniority system under the CBA was itself a reasonable accommodation. JA.588 (Order at 7) (citations omitted). This was notwithstanding the court's conclusion that Wise "does not currently benefit from the seniority system." Id. The court similarly "found" that Firestone's attendance policy amounted to a reasonable accommodation for Wise's beliefs. Id. The court noted that the Supreme Court had recognized that an employer's "unpaid leave policy for holy day observances that exceeded the amount allowed by the CBA would generally be a reasonable accommodation," and concluded that Firestone's attendance policy was itself a reasonable accommodation. Id. (emphasis added) (citing Ansonia Bd. of Ed. v. Philbrook, 479 U.S. 60, 70 (1986)). The court made no mention, however, of the fact that here it was uncontested that Firestone did not permit Wise to exceed the amount of unpaid leave permitted under the attendance policy. As for Firestone's shift-swap policy, the court noted that permitting employees to swap shifts on a voluntary basis can constitute reasonable accommodation of a religious practice. The court did not discuss the details of Firestone's shift swap policy. Rather, it stated that while there was a dispute over whether Cash took additional efforts to find employees to swap shifts with Wise, "there is no evidence that shift-swapping was discouraged [by Firestone] in any way" and Wise made no efforts to take advantage of the policy. JA.589 (Order at 8). The court then added that "[a]n employer can not be expected to provide additional accommodations for employees when the pre-existing accommodations are ignored. Title VII simply does not bestow upon the employee a right to accommodation shop; he must first use the means available to the best of his ability." Id. The court then announced that the Commission's argument "that Firestone is required to eliminate the conflict unless an undue hardship prevents it from doing so" was "untenable," and that "Firestone's pre- existing policies of a seniority system, unpaid leave program, shift- swapping and floating holidays combine to constitute reasonable accommodations, even though the conflict was not eliminated." JA.589-90 (Order at 8-9). The court further opined that the Commission's "insistence on absolute accommodation misreads the law and places on the employer an undue burden." JA.591 (Order at 10). The court described the Commission's position as requiring Firestone to either provide Wise a "shift preference in violation of the CBA," or for it to "incur[] the cost of replacement for the Sabbath and Holy Days." Id. From this premise, the court stated that "an employer is not required to violate a seniority preference system to accommodate the religious needs of an individual," and that such a requirement would amount to "an ‘over-accommodation' arguably violative of the rights of other employees." Id. The court also stated that Firestone "went beyond mere reliance on the CBA" when Cash permitted Wise to take extra half-day vacations and when it paid overtime to employees who covered his shift. Id. The court added that permitting Wise to accrue more than sixty hours of unpaid leave under the attendance policy "could constitute religious discrimination in favor of Wise and against others," citing Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 85 (1977) for the statement by the Supreme Court that "[w]e will not readily construe the statute to require an employer to discriminate against some employees in order to enable others to observe their Sabbath." JA.591-92 (Order at 10-11). The court also noted that pursuant to Hardison hiring replacement employees at overtime rates constitutes an undue hardship "in that it results in more than a de minimis cost to the employer." JA.592 (Order at 11). From this, the court concluded that "complete resolution of the conflict between Wise and Firestone would inevitably result in an undue hardship beyond the requirements of Title VII." Id. Summary of Argument The district court committed reversible error when it determined on summary judgment that defendant Bridgestone Americas Holdings, Inc. ("BAH") should be dismissed from the lawsuit. The Commission presented ample evidence that BAH's participation in the Commission's administrative processing of Wise's charge of discrimination—including the investigation and conciliation processes—was sufficient to meet this and other Courts' exception to Title VII's naming requirement for defendants, rendering it a proper defendant in this litigation. The district court also committed reversible error when it determined that no reasonable juror could conclude that Firestone failed to provide Wise with a reasonable accommodation for his religious beliefs and practices. In fact, it is uncontested that Firestone's accommodation efforts did not resolve the conflict between Wise's religious proscription against working during the Sabbath or certain biblical Holy Days and his work schedule. The district court further erred in concluding that Firestone's efforts were nevertheless adequate under Title VII because, in the district court's mistaken opinion, the law does not require an employer to completely resolve an employee's religious conflict with a work requirement in order to meet its obligation to accommodate the religious practices of its employees. The district court also erred in determining that Firestone could not provide a reasonable accommodation which would completely eliminate Wise's religious conflict with his work schedule without suffering an undue hardship on the conduct of its business. The evidence presented on summary judgment was more than sufficient to support a reasonable finder of fact's conclusion that Firestone failed to meet its burden of demonstrating undue hardship, and in fact the evidence would easily support a reasonable finder of fact's conclusion that Firestone would not have suffered undue hardship. Argument I. Standard of Review This Court applies a de novo standard in reviewing a district court's grant of summary judgment, construing the evidence in the light most favorable to the Commission as the nonmoving party. See Howard v. Winter, 446 F.3d 559, 565 (4th Cir. 2006). "Summary judgment is proper when the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Id. (citing Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Summary judgment is appropriate if, on the record as a whole, a rational trier of fact could not find for the nonmoving party, and in making such a determination "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). "[A]lthough the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe . . . the court should give credence to the evidence favoring the nonmovant as well as that ‘evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that the evidence comes from disinterested witnesses." Id. at 150-51. "Summary judgment is proper only if there is no genuine (in the sense of reasonably contestable) issue of material (that is, potentially outcome determinative) fact. . . . [C]ourts should be careful in a discrimination case as in any case not to grant summary judgment if there is an issue of material fact that is genuinely contestable." Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997) (Posner, J.). II. The District Court Erred in Concluding that Bridgestone Americas Holding, Inc. Is Not a Proper Defendant in this Suit. The district court stated that Bridgestone Americas Holding, Inc. ("BAH") "is a separate corporation which was not identified as a respondent in the original charge," and concluded that the Commission was precluded from stating a claim against BAH, as it was a defendant not named in the charge. Order at 2. This conclusion is incorrect under this Court's precedent. To be sure, Title VII authorizes the Commission to "bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge." 42 U.S.C. § 2000e-5(f)(1) (emphasis added). Nevertheless, this Court and others have expressly recognized that a party may properly be named in a lawsuit even when it was not named in the charge. In Alvarado v. Board of Trustees of Montgomery Community College, 848 F.2d 457 (4th Cir. 1988), this Court permitted a plaintiff to proceed with his Title VII discrimination suit against a defendant who was not named in the charge. This Court recognized that Title VII's naming requirement "is designed to provide notice [of the claimed violation] to the charged party and to permit the EEOC to permit voluntary conciliation of complaints." Id. at 460. See also Causey v. Blalog, 162 F.3d 795, 800 (4th Cir. 1998) ("The purposes of [the naming] requirement include putting the charged party on notice of the complaint and permitting the EEOC to attempt conciliation."). This Court concluded that the charging party's naming in the charge of the college as his employer, rather than the board of trustees of that college, did not in any way compromise these twin goals. Alvarado, 48 F.2d at 460. This Court noted that the college, "and therefore the board in its official capacity, was fully represented by counsel at all administrative and court proceedings." Id. This Court "perceive[d] absolutely no functional difference between the notice and participation afforded by naming the college in the administrative complaint and what would have been afforded had the board been named instead," and permitted the suit against the board to proceed despite the absence of its name from the charge filed with the Commission. Id. Other courts have applied this same approach to Title VII's naming requirement, including—as is the case here—in the context of a subsidiary and parent corporation where both were named as defendants in the complaint but only the subsidiary was named in the charge. See, e.g., Olsen v. Marshall & Isley, 267 F.3d 597, 604 (7th Cir. 2001) (suggesting a parent corporation not named in the plaintiff's EEOC charge should not be dismissed from the suit where the parent corporation had notice of the claim against it and an opportunity to conciliate on its own behalf); Romaine v. Kurek, 836 F.2d 241, 245 (6th Cir. 1987) (excusing failure to name a defendant in the charge where "the unnamed party has been provided with adequate notice of the charge under circumstances which afford him an opportunity to participate in conciliation proceedings aimed at voluntary compliance"). The uncontested evidence clearly shows that, as was the case with the board of trustees in Alvarado, BAH was provided notice of the charge, and participated in the Commission's administrative processing of the charge, including conciliation—rendering it a proper defendant. BAH prepared and submitted to the Commission, under its own letterhead, the respondent's response to Wise's charge of discrimination. JA.493-96 ( EEOC Memo Att. 2). The correspondence between the Commission and the respondents was variously to, from, and through BAH, and BAH prepared the responses to the Commission's requests for information regarding the claim. JA.497-507 (EEOC Memo. Atts. 3-6). The Commission's Letter of Determination finding reasonable cause to believe Wise had suffered illegal discrimination clearly and explicitly identified all three entities—Firestone, BFS, and BAH—as the collective respondent in this matter. JA.505-07 (EEOC Memo. Att. 6). When the Commission sought to initiate conciliation of the charge, it—consistent with prior practice in the administrative processing of Wise's charge—contacted BAH. JA.508-10 (EEOC Memo. Att. 7). Finally, when the Commission determined that conciliation efforts had been unsuccessful and no further efforts at conciliation would be made, the Commission again contacted Firestone, BFS, and BAH, as the collective respondent, to inform them of this determination. JA.511-12 (EEOC Memo. Att. 8). BAH has not even alleged, let alone shown with any evidence, that it was not properly notified of Wise's charge, or that it did not fully participate in the administrative processing of the charge, including conciliation. See Def. Memo at 25-26; Defendants' Reply Brief in Support of their Motion for Summary Judgment ("Def. Reply"), R.24, at 11-12. The district court ignored the aforementioned authority and evidence and concluded that BAH was not a proper defendant simply because it was not named in the charge of discrimination. See JA.583 (Order at 2). As such, the court's conclusion was premised on a cursory reading of the statute, disregarding courts' decisions—including those of this Court—interpreting that statutory language more broadly to cover parties such as BAH who were fully aware of the charge, who fully participated in the administrative processing of the charge, and who at all times during that administrative process were treated, and acted, as proper respondents to the charge. Viewing the Commission's evidence—the only evidence offered on this question—under the proper legal standards, a reasonable factfinder could easily conclude that BAH is a proper defendant in this suit. Accordingly, the court's grant of summary judgment on this point amounts to reversible error. III. A Reasonable Finder of Fact Could Conclude that Firestone Failed to Provide Wise a Reasonable Accommodation for his Religious Practices. The key substantive issues in this appeal are whether a reasonable finder of fact could conclude that Firestone failed to meet its burden to provide a reasonable accommodation for Wise's religious conflict with his work schedule, and whether a reasonable finder of fact could conclude that Firestone failed to prove that providing Wise a reasonable accommodation would cause it to suffer an undue hardship on the conduct of its business. As the record evidence on summary judgment, properly viewed under the controlling legal principles and in the light most favorable to the Commission, could support a reasonable finder of fact's answering these questions in the Commission's favor, the court's grant of summary judgment to Firestone was error. Title VII makes it an unlawful employment practice for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . religion." 42 U.S.C. § 2000e-2(a). "The term ‘religion' includes 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 or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business." Id. §-E"[A]n employer must, to an extent, actively attempt to accommodate an employee's religious expression or conduct even if, absent the religious motivation, the employee's conduct would supply a legitimate ground for discharge." Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1018 (4th Cir. 1996). In a religious accommodation claim, the burden is on the employer to "show that it could not accommodate the plaintiff's religious needs without undue hardship." Id. at 1019 (citations omitted). See also id. at 1018 ("If the employee has notified the employer of his religious need to take Sundays off, the burden rests on the employer to show that it could not accommodate the employee's religious practice without undue hardship.") (citing Ithaca, 849 F.2d at 118); Benton v. Carded Graphics, Inc., No. 93-1675, 1994 WL 249221, at *2 (4th Cir. June 9, 1994) (unpub.) ("What the law does require is a thorough exploration of all the alternatives that would meet the employee's religious needs, and the fact-based determination of whether any of those programs could be implemented without a predictably certain undue hardship."); 29 C.F.R. § 1605.2(c) (Once the employer is on notice of the employee's need for religious accommodation,"[a] refusal to accommodate is justified only when an employer . . . can demonstrate that an undue hardship would in fact result from each available alternative method of accommodation."). Despite the district court's conclusion to the contrary, an employer does not satisfy its obligation (absent undue hardship) to provide reasonable accommodation by offering measures which do not eliminate the conflict between the religious practice and the work requirement. The court correctly noted that Title VII does not "impose a duty on the employer to accommodate at all costs," JA.590 (Order at 9), but the court confused the employer's burden to offer full, complete accommodation for a religious need with the employer's "undue hardship" excuse for not doing so. Rather, this Court's precedent clearly contemplates that an accommodation must eliminate the conflict to satisfy the employer's burden unless the employer can demonstrate that to do so would result in undue hardship. See, e.g., Benton, 1994 WL 249221 at *2 ("What the law does require is a thorough exploration of all the alternatives that would meet the employee's religious needs," and noting that "offers to reduce the number of working Saturdays to as few as possible would not accommodate an employee whose religion prohibits working on any Saturday" (emphasis added; italics in original)). This Court has also explicitly rejected the notion that an absolute refusal to work on the Sabbath is beyond accommodation, and stated that Title VII "clearly anticipates that some employees will absolutely refuse to work on their Sabbath and that this firmly held religious belief requires some offer of accommodation by employers." Ithaca, 849 F.2d at 118, 119 n.3. This statement clearly suggests that, certainly in Sabbath cases, for the employer to meet its burden under Title VII its offer of accommodation must completely eliminate the conflict between the religious practice and the work requirement. To otherwise interpret the employer's burden under Title VII and require the employee to compromise his or her religious beliefs before the employer is required to accommodate those beliefs "turns the statute on its head," id. at 118, because it would in effect require an employee to give up the very thing the statute is designed to protect—the right to work and be free to practice one's religious beliefs. Absent undue hardship, any accommodation offer which does not completely eliminate the conflict and requires a Sabbatarian to work on his or her Sabbath is insufficient as a matter of law. In addition, those Courts of Appeals which have directly addressed this issue have recognized that Title VII requires that the employer offer an accommodation which completely eliminates the conflict to meet the employer's burden to provide reasonable accommodation. See Baker v. The Home Depot, 445 F.3d 541, 548 (2d Cir. 2006) (offered accommodation is not reasonable "‘because it does not eliminate the conflict between the employment requirement and the religious practice'" (quoting EEOC v. Ilona of Hung., Inc., 108 F.3d 1569, 1576 (7th Cir. 1996)); Opuku-Boateng v. California, 95 F.3d 1461, 1467 (9th Cir. 1996) (if negotiations between employer and employee "do not produce a proposal by the employer that would eliminate the religious conflict, the employer must either accept the employee's proposal or demonstrate that it would cause undue hardship were it to do so"); Cooper v. Oak Rubber Co., 15 F.3d 1375, 1378-79 (6th Cir. 1994) (employer must establish undue hardship if its efforts at accommodation "fail to eliminate the employee's religious conflict"; "[a]n employer does not fulfill its obligation to reasonably accommodate a religious belief when it is confronted with two religious objections and offers an accommodation which completely ignores one"); EEOC v. Universal Mfg. Corp., 914 F.2d 71, 73 (5th Cir. 1990) (where two of the employee's religious practices conflict with her work duties, employer's accommodation of only one practice failed to meet its burden, as "selective ‘accommodation'" is "patently unreasonable"). The Supreme Court has suggested the same, noting that, generally, offering an employee unpaid leave—even if doing so violates a CBA's limits on such leave—can be a reasonable accommodation, as "[t]he provision of unpaid leave eliminates the conflict between employment requirements and religious practices."<3> Philbrook, 479 U.S. at 70 (emphasis added). See also Ilona, 108 F.3d at 1576 (describing this passage in Philbrook as requiring the offered accommodation to eliminate the conflict between the employment requirement and the religious practice). To conclude otherwise, as did the district court, would permit employers to offer incomplete "accommodations" which do not actually accommodate the religious practice at issue—a result at odds with the plain language of Title VII and aptly characterized by the Fifth Circuit as "patently unreasonable." Universal, 914 F.2d at 73. While the district court cited Miller v. Drennon, No. 91-2166, 1992 WL 137578 (4th Cir. June 19, 1992) (unpub.), as support for the notion that a valid accommodation need not completely eliminate the conflict, Miller does not provide such support. In Miller, the employer came up with several options for accommodating the employee's religious conflict, and after a five-day bench trial the court concluded that the employer had in fact provided the employee with reasonable accommodation via numerous measures which the employee rejected because he preferred that different measures be taken. Miller, 1992 WL 137578 at *1-*3. This Court recognized that the employee was not entitled to reject the "good faith and reasonable attempts to accommodate his religious beliefs and stubbornly insist that the [employer] adopt his solution." Id. at *3. In this context, this Court stated that the employer "is not required to provide absolute accommodation, only a ‘reasonable accommodation.'" Id. (citation omitted). The clear import of this Court's discussion in Miller is that the law does not require an employer to provide an employee's preferred accommodation when it has already provided an accommodation which resolves the religious conflict. Viewed in its proper light, Miller supports the Commission's position, not Firestone's position or the district court's decision.<4> Examining the evidence on summary judgment in the light most favorable to the Commission as nonmovant, and under the proper legal framework described above, shows that the court's grant of summary judgment was error. First, a reasonable jury could easily conclude on this record that Firestone failed to provide Wise an accommodation which permitted him to observe his Sabbath and other Holy Days. Indeed, it is uncontested that Firestone's offered "accommodations" did not fully resolve the conflict between his religious observances and his work schedule. See Def. Memo. at 11-19 (no argument that Firestone's offered accommodations completely accommodated Wise's religious beliefs); Def. Reply at 6-7 (same). Wise presented his accommodation request to Firestone management in February 2002. JA.93-95 (Wise Dep. at 117-19). Rather than exploring all the possible, and, we might add, obvious, options which might have met Wise's religious needs, see Benton, 1994 WL 249221 at *2, Firestone only considered whether he had the seniority to move to another position, and whether it would be reasonable to leave his position vacant during his absences. JA.148-51 (Joz. I Dep. at 59-62). After determining that these two options were not feasible, Firestone decided that there would be "no special accommodations" offered to Wise. JA.250 (Cash II Dep. at 99). Firestone told Wise to rely on the company's vacation, holiday, and unpaid leave policies and reminded him that he would be subject to termination if he exceeded the sixty-hour limit under the attendance policy. JA.153 (Joz. I Dep. at 64). There is no evidence that Firestone made any inquiry—of Wise or otherwise—into whether these measures would effectively resolve the conflict, or took steps to ensure it was meeting its obligation under the law. Cf. Philbrook, 479 U.S. at 69 ("[B]ilateral cooperation is appropriate in the search for an acceptable reconciliation of the needs of the employee's religion and the exigencies of the employer's business."). Firestone's response to Wise's September 2002 request for a leave of absence was simply to deny the request without explanation—despite Kirksey's (the Employee Relations Manager who handled the request after discussing it with Jozwiakowski) belief that the request was justified. JA.107-08, 155, 318 (Wise Dep. at 135-36; Joz. I Dep. at 66; Kirksey Dep. at 101). Kirksey also stated that to his knowledge, Firestone had denied all prior requests for leaves of absence which were made for religious reasons. JA.312-13 (Kirksey Dep. at 78-79). Far from attempting to accommodate, the evidence that Wise's request was denied solely because Firestone "do[es not] grant leaves for religious purposes," JA.491-92 (EEOC Memo Att. 1), suggests Firestone was hostile to the notion of accommodating the religious practices of its employees. Cf. Philbrook, 479 U.S. at 70 (leave policy which is provided for reasons "except religious ones" displays "a discrimination against religious practices that is the antithesis of reasonableness," even where the employer is otherwise free to not offer the leave benefit at all) (citing in part Hishon v. King & Spaulding, 467 U.S. 69, 75 (1984)). This evidence would certainly support a reasonable factfinder's conclusion that Firestone failed to offer Wise a reasonable accommodation for his religious beliefs and practices. We note that the facts of the instant case closely parallel those presented in Ithaca, where this Court, sitting en banc, reversed the district court's entry of judgment against the Commission on its religious accommodation claim. See 849 F.2d at 117. In Ithaca, the employee informed his employer that he could not work on Sundays because of his religious beliefs, and the employer eventually terminated him for absenteeism caused by his adherence to that tenet of his religion. Id. The employer in Ithaca, like Firestone here, simply relied on existing work scheduling practices and made no other attempt to accommodate the employee's religious practice. Id. at 119. This Court held that the employer's reliance on these general measures which failed to resolve the employee's religious conflict was inadequate under the law. Id. Firestone's efforts here were similarly inadequate. Just as was the case in Ithaca, Firestone's existing leave and vacation policies simply did not resolve the conflict between Wise's religious practice and his work schedule, and, accordingly, failed to provide the accommodation required by Title VII. In support of its conclusion that Firestone had made reasonable accommodation of Wise's religious observances, the district court noted that Wise had not utilized Firestone's shift swapping policy, and then the court added—without citation to any supporting precedent—that "[a]n employer can not be expected to provide additional accommodations for employees when pre-existing accommodations are ignored. Title VII does not bestow upon the employee a right to accommodation shop." JA.589 (Order at 8). The court's analysis misses the point. There is no indication that Wise was "accommodation shopping" among available "effective" accommodations—rather, a reasonable finder of fact could conclude that the shift swap policy was not a "pre-existing accommodation." The evidence suggests that even if Wise had used the shift swap policy to its full potential, and made the permitted two swaps per quarter, see JA.464 (Def. Apx. tab 23) (shift swap policy), the conflict between Wise's religious practices and his work requirement would have continued. The shift swap policy would not have afforded Wise enough swaps to cover all of his Sabbath or Holy Day observances. Wise still would have exceeded the sixty-hour limit under Firestone's attendance policy, and, accordingly, been subject to termination. Wise typically worked his Friday shift until the beginning of the Sabbath, and came in to work and finished his occasional Saturday shift after the Sabbath had ended. JA.514-17 (Interv. Memo. Exh. 15) (Employee Absentee Status Inquiry for Wise). Accordingly, if he had swapped two shifts per quarter as allowed under Firestone's policy, he would have, at most, saved 23.13 hours of unpaid leave during the time period preceding his termination.<5> The evidence, however, indicates that when Wise was terminated for exceeding the attendance policy's sixty-hour limit on Friday, September 20, 2002, he still needed an additional seven days to cover his religious absences through the September 20-29, 2002 Feast of the Tabernacles. JA.473, 475-76 (Def. Apx. tab 28, 30, 31). This means that Wise would have accrued another fifty-six hours of unpaid leave during that religious holiday had Firestone not terminated him for exceeding the limit on September 20th, and the 23.13 hours of unpaid leave Wise may have been able to save under the shift swap program would not have permitted him to observe his religious beliefs and avoid being terminated. JA.107, 475 (Wise Dep. at 135; Def. Apx. tab 30). Accordingly, a reasonable trier of fact could conclude that the shift swap policy—alone or in conjunction with the other "accommodations" offered by Firestone—was inadequate as an accommodation.<6> That Firestone's extremely limited shift swap policy did not provide an effective accommodation of Wise's religious observances is not surprising, given that Firestone failed to heed this Court's admonition in Benton that the law requires employers to investigate the feasibility of possible accommodations. See 1994 WL 249221 at *2 (employers must make "a thorough exploration of all the alternatives that would meet the employee's religious needs"). Firestone neither considered whether the shift swap policy could have assisted in accommodating Wise's religious observances, nor consulted with Wise regarding whether the policy would meet his needs. JA.92, 148-50, 176 (Wise Dep. at 116; Joz. I Dep. at 59-61, 116). See also Ithaca, 849 F.2d at 118-19 (rejecting employer's accommodation "effort" of merely relying on ineffective preexisting leave policy, where the employer "made no specific effort" to accommodate the employee). The district court correctly stated that the employer and employee must cooperate in coming to a solution to the conflict, and that the employer's burden is met when it offers a reasonable accommodation—even when that accommodation is not of the employee's choosing. See JA.589 (Order at 8); Philbrook, 479 U.S. at 69 (requiring cooperation between employee and employer, and noting that an offer of reasonable accommodation meets the employer's burden despite the employee's preference for a different accommodation). However, an employee's failure to utilize a measure or plan which will not eliminate his religious conflict does not absolve the employer from its obligation to provide a measure or plan which does. See Philbrook, 479 U.S. at 69 (holding that employer meets its statutory obligation "when it demonstrates that it has offered a reasonable accommodation to the employee"). See also supra at 26-31 (discussing how the offered accommodation must eliminate the conflict to satisfy the employer's burden). Despite Firestone's failure to identify or implement an effective accommodation, there were measures available to Firestone which would have served to accommodate Wise by eliminating the conflict between Wise's religious practices and his work schedule. For example, Firestone could have excused Wise from its attendance policy's sixty-hour limit on unpaid leave. The Supreme Court has opined favorably on just such a measure—stating that an employer's "requiring [the employee] to take unpaid leave for holy day observance that exceeded the amount allowed by the collective bargaining agreement, would generally be a reasonable one." Philbrook, 479 U.S. at 70 (citation omitted). The Court noted that: The provision of unpaid leave eliminates the conflict between employment requirements and religious practices by allowing the individual to observe fully religious holy days and requires him only to give up compensation for a day that he did not in fact work. Generally speaking, "[t]he direct effect of [unpaid leave] is merely a loss of income for the period the employee is not at work." Id. at 70-71 (citation omitted). The possibility of such a measure accommodating Wise's Sabbath observances is obvious, in light of Wise's explicit request in February 2002 to be excused from working during the Sabbath, Jozwiakowski's understanding of Wise's request as asking that Sabbath absences not count against him under the attendance policy, and Firestone's awareness in September 2002, if not earlier, that not permitting Wise to exceed the sixty-hour limit under its attendance policy would result in his termination. Another obvious measure Firestone could have taken was to have granted Wise's September 2002 request for an unpaid leave of absence—a request which Firestone's own Employee Relations Manager believed was justified, and which was denied for no reason other than, apparently, Firestone refuses to grant leaves of absence for religious purposes. JA.318, 491-92 (Kirksey Dep. at 101, EEOC Memo Att. 1). These measures, taken together, would have easily served to accommodate Wise's religious beliefs and practices by eliminating the conflict between those beliefs and practices and his work requirements. Based on the evidence of record, a reasonable finder of fact could certainly conclude that Firestone failed to provide a reasonable accommodation for Wise's Sabbath and Holy Days observance, despite the fact that obvious, effective reasonable accommodation options were available. IV. A Reasonable Finder of Fact Could Conclude that Firestone Failed to Show that Providing Reasonable Accommodation to Wise would have Imposed an Undue Hardship on the Conduct of its Business. The district court further erred in concluding that Firestone met its burden to show that accommodating Wise's religious practice would have imposed an undue hardship on the conduct of its business. The Supreme Court has recognized that, in the context of accommodating employees' religious beliefs and practices, such accommodation causes an undue hardship "whenever that accommodation results in ‘more than a de minimis cost' to the employer." Philbrook, 479 U.S. at 67 (quoting in part Hardison, 432 U.S. at 84) (italics in original). In determining whether accommodation would present an undue hardship, employers must do more than speculate or ponder the impact of accommodation on the function of their business. Rather, employers must undertake "a thorough exploration of all the alternatives that would meet the employee's religious needs," and then make a "fact-based determination of whether any of those programs could be implemented without a predictably certain undue hardship." Benton, 1994 WL 249221 at *2. "Undue hardship cannot be proved by assumptions nor by opinions based on hypothetical facts." Id. at *1. Again, it is the employer's burden "to show that it could not accommodate the plaintiff's religious needs without undue hardship." Chalmers, 101 F.3d at 1019 (citations omitted). The record evidence on summary judgment is more than adequate to support a reasonable jury's conclusion that Firestone has failed to meet its burden. Firestone's limited inquiry into Wise's Sabbath accommodation request amounted to an assessment of whether, pursuant to the CBA's seniority rules, Wise could permanently switch to a position on a different shift, and consideration of whether his position could go unattended in his absence, and it determined that it could not take these measures absent undue hardship. JA.148-50 (Joz. I Dep. at 59-61). The Commission does not contest that under the circumstances of this case, Firestone was not required to take these particular measures to accommodate Wise. However, Firestone failed to present any evidence that it would have suffered an undue hardship if it took other, appropriate measures in an effort to accommodate Wise—such as excusing him from the sixty-hour cap on unpaid leave and/or granting his leave of absence request—which would have completely resolved the conflict between his religious observances and his work schedule. The district court concluded that permitting Wise to take extra time off would have caused an undue hardship by requiring Firestone to pay overtime to his replacement, as "hiring replacement employees at overtime rates constitutes an undue hardship in that it results in more than a de minimis cost to the employer." JA.592 (Order at 11) (citation omitted) (italics in original). This conclusion, however, runs contrary to the evidence. While it is uncontested that Firestone would likely need to pay overtime wages to cover Wise's absence on the Sabbath, the Commission offered unrebutted evidence that only rarely, if ever, was Wise not on overtime status by the beginning of the Sabbath—meaning that he, too, would have been paid overtime wages had he worked the Sabbath. JA.122 (Wise Dep. at 173). Jozwiakowski admitted that there was no difference in the cost to Firestone between paying Wise overtime or someone else overtime to cover his absence—"the cost would be the same. It wouldn't matter." JA.152 (Joz. I Dep. at 63). Firestone failed to offer any evidence that it would incur any cost, let alone more than a de minimis cost, by permitting Wise to take unpaid leave—nor any evidence that it investigated what cost it might incur in granting such leave. If, as the district court presumably thought, Firestone would have incurred additional overtime costs for periods Wise was permitted to be on unpaid leave, Firestone would have been able to produce evidence of such "costs" for the days Wise was absent from work to observe the Sabbath. Yet, Firestone produced no such evidence. Similarly, there is no evidence in the record which supports the district court's contention that granting Wise an unpaid leave of absence "would force other employees to work overtime." JA.586 (Order at 5). Firestone did not argue, and there is no evidence, that it considered whether it would have to pay overtime to a replacement if it had granted Wise's September 2002 leave of absence request. See Def. Memo. at 22; Def. Reply at 10 (Firestone's overtime arguments only address Wise's Sabbath absences). Moreover, given evidence that there were Lab Floaters employed at Firestone who typically covered for Lab Technicians and other employees in their absence, a reasonable finder of fact could conclude that Wise's position could have been covered by a Lab Floater on regular duty, making overtime unnecessary. JA.64-65, 243-44 (Wise Dep. at 69-70; Cash II Dep. at 81-82). The district court also concluded that permitting Wise to exceed the sixty-hour limit under the attendance policy "could constitute religious discrimination in favor of Wise and against others." JA.591 (Order at 10). This conclusion is without merit. This Court has implicitly rejected the argument that permitting a religious accommodation for one employee constitutes discrimination against other employees. See Ithaca, 849 F.2d at 117 (reversal of panel decision, 829 F.2d 519, which had concluded that requiring an employer to accommodate an employee's request to be permitted not to work Sundays for religious reasons was "discriminat[ion] against some employees in order to enable others to observe their Sabbath"). Other courts that have directly addressed this contention have also rejected it as "preclud[ing] all forms of accommodation and defeat[ing] the very purpose behind [the statute]." Brown v. Gen. Motors Corp., 601 F.2d 956, 962 (8th Cir. 1979). See also Philbrook v. Ansonia Bd. of Ed., 757 F.2d 476, 487 (2d Cir. 1985) (same), aff'd on other grounds, 479 U.S. 60 (1986). Moreover, providing a reasonable accommodation for one employee's religious beliefs or practices does not adversely affect other employees, for those employees are not denied any term, condition, or privilege of employment to which they are otherwise entitled. Similar to the district court's conclusion, Firestone argued that accommodating Wise's request not to work the Sabbath, "if volunteers could not be found, would require Firestone to deprive another employee of their shift preference because they did not adhere to [Wise's] beliefs," in violation of Title VII. Def. Memo at 21 (emphasis added). This assertion is not only without merit, but it relies on precisely the type of speculative, hypothetical analysis which is prohibited in the context of determining the feasibility of religious accommodation. See Benton, 1994 WL 249221 at *2. Firestone presented no evidence that any employee ever was, or ever would be, denied a "shift preference" or was otherwise "forced" to work as a result of permitting Wise to be absent on the Sabbath. It is telling that there is no evidence of this ever being a problem despite the fact that Wise presumably had to be replaced during his other absences in 2002 for the Sabbath and other religious observances. Nor did Firestone present any evidence that it actually made the requisite fact-based, not hypothetical, determination as to whether volunteers were available, and, if not, whether Firestone would actually be forced to "deny another employee of their shift preference." In fact, the record evidence suggests that willing volunteers did exist and were prepared to assist in covering for Wise to aid his observance of the Sabbath. See supra at 11 (other employees did not complain about working overtime for Wise, and several were willing to work overtime to help accommodate Wise's religious practice). Firestone attempts to bolster its argument by analogizing the instant case to Hardison, where the Supreme Court held that the employer was not required to violate a CBA's seniority rules and "deprive another employee of their shift preference" in order to accommodate an employee's request to not work the Sabbath. See Def. Memo. at 20-21; see also Hardison, 432 U.S. at 76. Contrary to Firestone's characterization, Hardison does not support its position here. Hardison involved a workplace wherein there were no volunteers to cover for the employee's shift, but here there is ample evidence that employees were willing to participate in Firestone's voluntary overtime program to cover Wise's shift in his absence. Moreover, while Firestone states that Wise's requested accommodations "negatively affected his fellow employees," as the employee's request to supersede CBA seniority rules would have in Hardison, there is no evidence in this case that any employee ever was, or ever would have been, forced to forego a right or privilege provided under the CBA for Firestone to reasonably accommodate Wise. Rather, the evidence is that Wise's coworkers—the same people who covered for him during the seven-month period in 2002 at issue in this case—never complained about working overtime for him, and were willing to assist his accommodation needs. Firestone's assertion otherwise is hypothetical and contrary to the evidence. Firestone's reliance on Hardison is misplaced. This Court has recognized that, in the typical case, "religious accommodation suits involve religious conduct, such as observing the Sabbath, wearing religious garb, etc., and result in indirect and minimal burdens, if any, on other employees. An employer can often accommodate such needs without inconveniencing or unduly burdening other employees." Chalmers, 101 F.3d at 1021 (citation omitted). There is no evidence that this case is any different from the typical Sabbath case, and no evidence that Firestone or its employees would have been unduly burdened by accommodating Wise's Sabbath or other religious observances. As the record on summary judgment could easily support a reasonable factfinder's conclusion that Firestone failed to meet its burden of demonstrating undue hardship, the district court erred in granting Firestone summary judgment. Conclusion For the aforementioned reasons, the Commission respectfully requests that this Court reverse the district court's grant of summary judgment, and remand the case for further proceedings. Request for Oral Argument The Commission requests oral argument in this appeal. This religious discrimination suit, brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., presents a variety of factually intensive issues on appeal, in the context of addressing the question whether the district court properly concluded that Firestone was entitled to summary judgment and that BAH was not a proper party to the action. Due to the complexity and significance of the issues raised in this appeal, the Commission believes oral argument would assist the Court in its resolution of the matters presented, and serve to highlight the existence of genuine issues of material fact precluding summary judgment and dismissal of BAH from the action. Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel ______________________ JAMES M. TUCKER Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov Certificate of Compliance I hereby certify that the foregoing Brief of Plaintiff-Appellant the U.S. Equal Employment Opportunity Commission complies with the type- volume limitations set forth in Federal Rules of Appellate Procedure Rule 32(a)(7)(B). The foregoing brief contains 10,642 words, from the Jurisdictional Statement through the Conclusion, as determined by the Microsoft Word 2003 word processing program, with 14-point proportionally spaced type for text and 14-point proportionally spaced type for footnotes. _____________________________ JAMES M. TUCKER Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L. St., N.W., Rm. 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@eeoc.gov Certificate of Service I hereby certify that the original and seven copies of the foregoing brief, as well as the original and five copies of the Joint Appendix, were sent this 1st Day of February, 2007, by FedEx Next Day Air delivery, postage prepaid, to the United States Court of Appeals for the Fourth Circuit, 1100 East Main St., Suite 501, Richmond, VA 23219-3517. I further certify that two copies of the foregoing brief, and one copy of the Joint Appendix, were sent this 1st Day of February, 2007, by FedEx Next Day Air delivery, postage prepaid, to counsel of record for Plaintiff- Intervenor-Appellant and Defendants-Appellees, respectively, at the addresses below: Vicki B. Rowan, Esq. 1515 Mockingbird Lane, Suite 400 Charlotte, NC 28209 H. Bernard Tisdale, III, Esq. Ogletree, Deakins, Nash, Smoak, & Stewart, P.C. 400 West Trade St. Charlotte, NC 28202-1627 _____________________________ JAMES M. TUCKER Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L. St., N.W., Rm. 7024 Washington, D.C. 20507 (202) 663-4870 James.Tucker@eeoc.gov *********************************************************************** <> <1> The “treating unit” (also referred to as the “treating operation” or “treating room”) performs a procedure by which a thin coating of solution is applied to fabric to provide the necessary characteristics for rubber to stick to the fabric, and heat sets the physical and chemical properties of the material. JA.147-48, 237 (Joz. I Dep. at 58-59; Cash I Dep. at 30). <2> As a point of clarification, we note that while Firestone, the Commission, and the district court all referred below to Firestone’s attendance policy as the “no-fault-attendance policy,” the record reflects that the words “no-fault” are not a part of the title of that policy. See JA.462 (Appendix to Memorandum Supporting Defendants’ Motion for Summary Judgment (“Def. Apx.”) tab 21 (“Attendance Policy”)). <3> In the analogous context of an employer’s obligation under the Americans with Disabilities Act to provide reasonable accommodation to qualified individuals with disabilities, the Supreme Court has recognized that Congress’ use of “the word ‘accommodation’ . . . conveys the need for effectiveness” in the proposed accommodation. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002). It is elementary that an employer’s accommodation effort which leaves in place some measure of conflict between the employee’s religious practice and the work requirement, is not an “effective” accommodation. <4> The district court relied on the Supreme Court’s statement in Philbrook that employers need not accommodate religious practices “at all costs” as further support for the notion that complete elimination of the conflict is not required. JA.590 (Order at 9 (citing 479 U.S. at 70)). Again, the court’s analysis confuses the employer’s requirement to provide a reasonable accommodation which completely eliminates the conflict, with the employer’s undue hardship excuse for not doing so. See Chalmers, 101 F.3d at 1019. <5> This is assuming Wise would have swapped shifts on the two days that he accumulated the most unpaid leave each quarter. See JA.464, 514-17 (Def. Apx. tab 23; Interv. Exh. 15) (combined time for the two days each quarter in which Wise took the most unpaid leave totaled 8.54, 8.20, and 6.39 hours, respectively). <6> Firestone argued on summary judgment that because Wise used three days of vacation time in March and April, 2002, for religious observances during which his religion permitted him to work, he “failed to properly conserve his leave,” and had he not used those three days of leave “he would have had enough leave to cover a portion of his requested leave in September.” Def. Memo. at 25 (emphasis added). However, even if Wise had “conserved” those three days—twenty-four hours—of leave for use in September, he would have still been short by thirty-two hours for his September religious observance. Adding to this the 23.13 hours Wise might have been able to save under the shift swap program (as discussed above) still does not alter the result, as he would have still been left with an 8.87 hour shortfall—and would have still faced termination by Firestone at the end of his September religious observance, rather than at the beginning.