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 ______________________________________________________ REPLY 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 CAROLYN L. WHEELER 1801 L Street, N.W., Room 7024 Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4870 LORRAINE C. DAVIS James.Tucker@EEOC.gov Assistant General Counsel JAMES M. TUCKER Attorney Table of Contents Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I. A Reasonable Jury Could Conclude that Firestone Failed to Provide Wise a Reasonable Accommodation for his Religious Practices. . . . . . . . . . . . . . 3 A. Firestone misunderstands the standards governing a religious accommodation claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. Firestone misrepresents the record in contending that it satisfied its accommodation burden. . . . . . . . . . . . . . . . . . . . . . . . . . .12 II. Firestone has Failed to Prove that a Reasonable Jury would be Compelled to Find that Providing Wise a Reasonable Accommodation would Cause an Undue Hardship on the Conduct of its Business. . . . . . . . . . . . . . . . . . . . . . 16 A. Firestone presented no evidence that the accommodation Wise requested would cause undue hardship. . . . . . . . . . . . . . . . . . . . .16 B. Firestone misleadingly frames the accommodation requested as one which conflicts with the CBA. . . . . . . . . . . . . . . . . . . . . 17 C. Firestone has no evidentiary support for its assertions of undue hardship. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22 III. A Reasonable Jury Could Conclude that Bridgestone Americas Holding, Inc., is a Proper Defendant in this Suit. . . . . . . 26 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 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). . . . . . . . . . . . . . . . . . . . .27 Ansonia Bd. of Ed. v. Philbrook, 479 U.S. 60 (1986). . . . . . . . . . . . . . . . . . . . . passim Benton v. Carded Graphics, Inc., No. 93-1675, 1994 WL 249221 (4th Cir. June 9, 1994). . . . . .9, 10, 13 Causey v. Blalog, 162 F.3d 795 (4th Cir. 1998). . . . . . . . . . . . . . . . . . . . .27 Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012 (4th Cir. 1996). . . . . . . . . . . . . . 3, 4, 9, 23 EEOC v. Ilona of Hung., Inc., 108 F.3d 1569 (7th Cir. 1996). . . . . . . . . . . . . . . . . . . .6 EEOC v. Ithaca Indus., Inc., 849 F.2d 116 (4th Cir. 1988). . . . . . . . . . . . . . . . . . . . . 8 Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, 657 F.2d 890 (7th Cir. 1981). . . . . . . . . . . . . . . . . . . . .27 Hillman v. IRS, 263 F.3d 338 (4th Cir. 2001). . . . . . . . . . . . . . . . . . . . .14 Olsen v. Marshall & Ilsley Corp., 267 F.3d 597 (7th Cir. 2001). . . . . . . . . . . . . . . . . . . . .29 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). . . . . . . . . . . . . . . . . . . . . . . . . .2 Romain v. Kurek, 836 F.2d 241 (6th Cir. 1987). . . . . . . . . . . . . . . . . . . . .30 Schnellbacher v. Baskin Clothing Co., 887 F.2d 124 (7th Cir. 1989). . . . . . . . . . . . . . . . . . . . .30 Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). . . . . . . . . . . . . . . . . . . . . passim U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). . . . . . . . . . . . . . . . . . . . . 7, 8 Argument In its opening brief, the Commission argued that the district court committed reversible error when it granted Firestone's motion for summary judgment. On the Commission's claim that Firestone unlawfully discriminated against David Wise, a reasonable factfinder could easily conclude Firestone failed to provide Wise with a reasonable accommodation for his religious beliefs and practices. It is uncontested that Firestone's efforts did not resolve the conflict between Wise's religious restriction on working during the Sabbath or certain biblical Holy Days and his work schedule-as Firestone was required to do under Title VII, absent a showing of undue hardship. Moreover, Firestone failed to meet its burden of proving it could not accommodate Wise's religious needs without suffering undue hardship. On the Commission's claim that BAH is a proper defendant, the record on summary judgment contained ample evidence from which a reasonable factfinder could conclude 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 provide the proper notice and opportunity to participate on its own behalf in those proceedings to satisfy the recognized exception to Title VII's naming requirement. Firestone's arguments in response lack merit. Throughout its brief, Firestone applies incorrect legal standards and misapplies pertinent authorities. In addition, Firestone's contentions rest on an impermissible view of the record on summary judgment-in a light most favorable to itself, and often without any record support for its factual assertions. As a result, Firestone commits on appeal the same error made by the district court- failing to consider whether a reasonable factfinder, applying the proper legal standards, viewing the evidence in the light most favorable to the Commission as nonmovant and making all reasonable inferences in the Commission's favor, could find for the Commission. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000). Because Firestone fails to demonstrate that no reasonable jury could find that Firestone failed to reasonably accommodate Wise's religious practice, or that such a jury would be compelled to conclude that for Firestone to do so would result in undue hardship, its arguments do not support the grant of summary judgment. Furthermore, Firestone mounts no real challenge to the Commission's argument that a reasonable jury could find that BAH is a proper party because it had adequate notice and opportunity to conciliate Wise's charge. For these reasons, the Commission respectfully requests that this Court reverse the district court's grant of summary judgment to Firestone. I. A Reasonable Jury Could Conclude that Firestone Failed to Provide Wise a Reasonable Accommodation for his Religious Practices. As demonstrated in the Commission's opening brief, a reasonable factfinder could easily conclude that Firestone failed to meet its burden to provide Wise a reasonable accommodation for his religious practice of not working on the Sabbath and Holy Days. See Appellant's Brief ("AtBr.") 24- 39. In fact, it is uncontested that Firestone's minimal attempt at accommodating Wise failed to resolve the conflict between his religious beliefs and his work schedule, resulting in his termination. This fact is particularly important, as this Court and others have strongly suggested, if not outright held, that the employer's burden under Title VII is to offer a reasonable accommodation which completely eliminates the conflict between the employee's religious beliefs and work requirements. See AtBr.26-30 (citing cases). A. Firestone misunderstands the standards governing a religious accommodation claim. We note at the outset that Firestone opens its argument with the patently erroneous contention that the proper analysis in religious accommodation cases is "the three-prong burden-shifting proof scheme first articulated in McDonnell Douglas." Appellee's Brief ("AeBr.") 15 (citing Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1019 (4th Cir. 1996)). Chalmers does not stand for this proposition, however, and instead clearly sets out the distinct two-part analysis employed in religious accommodation cases. The plaintiff must first establish a prima facie case by showing that he has a bona fide religious belief that conflicts with an employment requirement; he informed the employer of this belief; and he was disciplined for failing to comply with the conflicting employment requirement. Chalmers, 101 F.3d at 1019. If the plaintiff establishes a prima facie case, the burden shifts to the employer to show that it "could not accommodate the plaintiff's religious needs without undue hardship." Id. Firestone's belief that McDonnell Douglas governs this case undermines its entire analysis on appeal. Here, Firestone concedes that the efforts it made did not resolve the conflict between Wise's religious beliefs and his work schedule, but argues that it satisfied its statutory duty to accommodate because employers are not required to completely resolve such conflicts. See AeBr.26-41. Firestone cites no authority in support of its view of the law, and there is none. As the Commission pointed out in its opening brief, the accommodation standard Firestone urges upon this Court finds no support in Supreme Court precedent and is plainly contrary to the law of this and other Courts. See AtBr.26-30. Firestone contends that Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), supports its position that the statute does not require that an accommodation eliminate the conflict. AeBr.27. Hardison, however, provides no such support. The issue in Hardison was whether requiring an employer to violate a CBA's seniority provision to the detriment of other employees constitutes an undue hardship. Hardison, 432 U.S. at 78-79. The Supreme Court ruled that the employer was excused from providing a reasonable accommodation because all of the proposed or available accommodation options would have caused the employer to suffer an undue hardship. Id. at 69 ("an accommodation was not reached"), 83-85 (all accommodation options constituted undue hardship). Indeed, Hardison logically implies that a reasonable accommodation is one which eliminates the conflict. If, as Firestone argues, an employer satisfies its duty to accommodate by offering measures which fall short of eliminating the religious conflict, there would, in most if not all cases, be no need to conduct an undue hardship analysis. Firestone further contends that Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986), does not support the complete elimination rule because the phrase "must eliminate the conflict" does not appear in Philbrook. AeBr.27. Admittedly, Philbrook does not expressly hold that complete accommodation is required, see AtBr.29, but Firestone is wrong when it argues the concept is not referenced or implied there. In addressing whether an employee is entitled to his preferred accommodation, Philbrook states that permitting an employee to take unpaid leave is generally a reasonable accommodation as it "eliminates the conflict between employment requirements and religious practices." 479 U.S. at 70. Clearly, it was the Court's view that a reasonable accommodation is one which resolves the employee's religion/work conflict. The Seventh Circuit has interpreted this portion of Philbrook as requiring complete elimination of the conflict.<1> See EEOC v. Ilona of Hung., Inc., 108 F.3d 1569, 1576 (7th Cir. 1996). The Commission also pointed out in its opening brief that every Court of Appeals to have addressed the issue-the Second, Fifth, Sixth, Seventh, and Ninth-has concluded that an employer's accommodation effort must completely eliminate the conflict (absent a showing of undue hardship) in order to satisfy the statutory obligation to accommodate. See AtBr.28-29. Firestone complains that these decisions do not comport with Firestone's interpretation of Philbrook. AeBr.36n.8. However, as we pointed out above, Firestone's interpretation of Philbrook is flawed. Firestone also states that these cases are not controlling in this Circuit, an obvious point. As Firestone must, or should, know, however, circuit courts often look to the analyses of the same issues by other courts, and Firestone has offered no sound basis for challenging these decisions. Similarly lacking in merit is Firestone's reliance on Hardison and U.S. Airways, Inc., v. Barnett, 535 U.S. 391 (2002), to argue that it has done all it is required to do under Title VII because an employer is not required to violate the seniority provisions of a CBA in order to provide a reasonable accommodation.<2> See AeBr.35-36. This rule is not implicated in this case, because none of the accommodations at issue-exempting Wise from the attendance policy's sixty hour limit on unpaid leave and granting his leave of absence request-require violating the collectively bargained-for seniority rights of any of Firestone's employees, and the Commission has not argued that Firestone must violate its CBA. See infra at 17-26. Firestone also attempts to challenge the Commission's reliance on this Court's en banc decision in EEOC v. Ithaca Industries, Inc., 849 F.2d 116 (4th Cir. 1988), as support for the complete elimination rule. See AeBr.31- 33. Although Firestone acknowledges that this Court in Ithaca categorically rejected the notion that refusal to work on one's Sabbath is beyond accommodation, it argues that this Court "did not hold that refusal to work on the Sabbath is always something to be completely accommodated." AeBr.31 (emphasis added). Nor does the Commission argue such. Accommodation of religious practices which conflict with work rules is excused upon a showing of undue hardship. In the absence of such a showing, the statute requires accommodation which will eliminate the conflict. Firestone also attempts to distinguish Ithaca on its facts. AeBr.33-34. Whatever factual distinctions may lie between this case and Ithaca are irrelevant. The significance of Ithaca to this case is primarily in the legal framework it sets out for analyzing claims of religious accommodation. Nonetheless, as described in the Commission's opening brief, the material facts in this case closely parallel those in Ithaca. See AtBr.33-34. Firestone suggests that Wise's accommodation requirements were unreasonable because of the frequency of his accommodation needs-he would need to "miss work on multiple Holy Days each year, and miss part of [his] regular work schedule EVERY WEEK!" AeBr.32. Again, Firestone misunderstands that this is precisely what it means to be a Sabbatarian-and, most importantly, this is exactly the type of religious practice at issue in Ithaca, which this Court expressly held was not beyond accommodation. What Firestone fails to grasp is that the only limitation on providing a reasonable accommodation for such a practice is undue hardship, which the company must prove. See Chalmers, 101 F.3d at 1019. Firestone also challenges the Commission's reliance on Benton v. Carded Graphics, Inc., No. 93-1675, 1994 WL 249221 (4th Cir. June 9, 1994) (unpub.)), again claiming that case did not involve a CBA and the employee only needed to be accommodated "a few Saturdays." AeBr.33-34. In Benton, this Court stated that the law requires an employer to respond to a request for reasonable accommodation by making "a thorough exploration of all the alternatives that would meet the employee's religious needs, and [a] fact-based determination of whether any of those programs could be implemented without a predictably certain undue hardship." 1994 WL 249221 at *2. The Commission cited Benton both for its clear statement of the employer's burden, and also as further indication that this Court requires an accommodation to completely eliminate the conflict by mandating that the employer consider measures which "meet the employee's religious needs." AtBr.26-27. Firestone does not dispute this characterization of Benton. Rather, Firestone attempts to distinguish Benton factually by asserting a false premise-that unlike in Benton, the Commission is "essentially requesting the Court require that Firestone grant Wise special exceptions to Firestone's CBA." See AeBr.33-34. Of course, the Commission is making no such request, as the accommodation measures of which Firestone was well aware at the time of Wise's requests-exemption from the sixty hour limit on unpaid leave under the attendance policy and permitting him to take a leave of absence in September 2002-in no way required a "special exception to Firestone's CBA." Firestone argues at length that the CBA's provision of a seniority system, vacation time, and floating holidays, and the company's attendance policy, are "institutionalized accommodations" sufficient to meet its obligation to provide reasonable accommodation. See AeBr.21-25. Again, Firestone's argument lacks merit, as it is based on the faulty premise that a reasonable accommodation need not completely eliminate the conflict, and that an employer's institutional policies constitute a reasonable accommodation as a matter of law. Firestone asserts that the Court in Hardison concluded that the employee had been provided a reasonable accommodation via the employer's collectively-bargained-for seniority system-that "such a system, in and of itself, constituted an accommodation." AeBr.22. This is simply incorrect. The Court in Hardison merely indicated that the employer had made some "significant" accommodation efforts. 432 U.S. at 78. The Court did not hold that the employer actually provided a reasonable accommodation to Hardison. Id. Indeed, as discussed supra at 5, it was precisely because to do so would cause undue hardship that the employer was not required to provide an accommodation which completely eliminated the conflict with work rules that Hardison's Sabbath practices created. For the same reasons, Firestone is incorrect when it asserts that Hardison held that the CBA was itself a reasonable accommodation or that the employer's "institutionalized accommodations," even though "significant," were reasonable accommodations.<3> See Hardison, 432 U.S. at 78. B. Firestone misrepresents the record in contending that it satisfied its accommodation burden. Firestone is disingenuous in its assertion that "other than the request for leave of absence, Wise did not request any of the proposed accommodations being propounded by the EEOC and Wise on appeal." AeBr.38n.10. This contention is contrary to the evidence of record, and Firestone cites none in support. Wise made two accommodation requests- the February 2002 request to be excused from working Friday sundown to Saturday sundown, JA.95, 144-45 (Wise Dep. at 119; Joz. I Dep. at 55-56), which Jozwiakowski admitted he interpreted as asking that his Sabbath absences be exempted from the attendance policy's sixty hour limit on unpaid leave, JA.196 (Joz. 30(b)(6) Dep. at 23), and the leave of absence request, JA.47-48, 107, 475 (Wise Dep. at 41-42, 135; Def. Apx. Tab 30). These are the only accommodations sought by the Commission, and the evidence shows Firestone was aware of them at the relevant time. See AtBr.38-46. Firestone also mischaracterizes the record in asserting-without citation to supporting evidence-that it has a "past practice of denying leave of absence requests under the CBA for recurring events," and that in response to Wise's request Firestone "reviewed past requests for similar leaves of absence, determining that other employees were allowed to take vacation time, and not granted unpaid leaves, for such absences." AeBr.21,34. There is no evidence that Firestone had such a policy, and the record does not reflect that prior requests had been rejected for the reason Firestone asserts. In any event, Firestone's assertion misses the point, because the mere existence of a prior practice or policy would not excuse Firestone's failure to grant Wise's request in the absence of undue hardship. See Benton, 1994 WL 249221 at *2. In fact, the only evidence in the record as to why Firestone denied Wise's request is the Employee Relations Manager's statement that Firestone "do[es]n't grant leaves for religious purposes," JA.311-12, 491-92 (Kirksey Dep. at 77-78; EEOC Memo Att. 1). A reasonable jury could find that, far from excusing Firestone, such evidence demonstrates that Firestone has a policy of not granting leaves of absence "for religious reasons," and is therefore engaged in "discrimination against religious practices that is the antithesis of reasonableness." Philbrook, 479 U.S. at 71. Firestone next argues that the Commission cannot secure relief for Wise because he "failed to try to help himself" in that he did not use Firestone's limited shift-swapping policy, and he failed to conserve his vacation time for use during his required religious absences. AeBr.42-45. This argument is without merit.<4> As discussed in the Commission's opening brief, Firestone's shift swapping policy could not have resolved Wise's accommodation needs. See AtBr.34-38. Obviously, employees have an obligation to cooperate with employers in identifying a reasonable accommodation. This does not mean, however, that an employee can be barred from recovery for failing to use a measure which would not accommodate his religious practice. The law does not require employees to engage in acts of futility to protect their statutory rights, and Firestone cites no authority for such a proposition. Firestone does not dispute the Commission's argument in its opening brief that the shift swap policy would not have satisfied Wise's accommodation needs, alone or in conjunction with the other measures Firestone offered Wise. See AtBr.34-38; AeBr.43-44. Nor does Firestone contest the Commission's contention that the company never examined whether the shift swap policy would have resolved Wise's religious conflict. See AtBr.37; AeBr.43-44. As for Firestone's assertion that Wise failed to properly conserve his leave, the Commission demonstrated in its opening brief that even if Wise had saved the three days of vacation at issue, he would still have been well short of the amount of leave-paid or unpaid-necessary to avoid termination in September 2002. Firestone does not contest this fact, admitting that the amount of leave at issue would only have covered "a portion" of the leave Wise needed in September. AeBr.45. Firestone makes no claim that Wise could somehow have obtained the additional leave he needed to avoid termination. Id. In light of these concessions, Firestone's "blame the victim" approach is particularly unpersuasive. II. Firestone has Failed to Prove that a Reasonable Jury would be Compelled to Find that Providing Wise a Reasonable Accommodation would Cause an Undue Hardship on the Conduct of its Business. In its opening brief, the Commission argued that summary judgment was improper because Firestone failed to prove it could not provide reasonable accommodation without suffering undue hardship. See AtBr.40- 47. In other words, based on the summary judgment record, a jury would not be compelled to find that accommodating Wise would result in undue hardship on the conduct of its business. Firestone mounts no serious response to this argument. A. Firestone presented no evidence that the accommodation Wise requested would cause undue hardship. As for Wise's request to not work during the Sabbath, which Firestone understood to be a request to be excused from the attendance policy's sixty hour limit on unpaid leave, Firestone utterly ignored that obvious possible accommodation. Instead, the company only examined whether Wise could permanently switch to a position on a different shift pursuant to the CBA's seniority rules, or if his position could go unattended in his absence. AtBr.5- 7. Firestone similarly failed to consider whether Wise's requested leave of absence would result in undue hardship, making no inquiry as to the impact, if any, granting Wise's request would have on the conduct of its operations. See AtBr.12-13. Thus, the record is totally devoid of any evidence that Firestone would have suffered an undue hardship had it excused Wise from the sixty hour cap on unpaid leave and/or granted his leave of absence request. See AtBr.40- 46. It is telling that on the fact intensive question of whether Firestone met its burden to show undue hardship, Firestone only makes three citations to the record-two to irrelevant provisions of the CBA, see AeBr.49,52n.13, and one to the district court's decision, see AeBr.46. As no reasonable factfinder could find, much less be compelled to find, that Firestone met its burden to prove that it would have suffered undue hardship had it provided reasonable accommodation to Wise, the district court erred in granting summary judgment to Firestone. B. Firestone misleadingly frames the accommodation requested as one which conflicts with the CBA. Firestone asserts that the Commission is "essentially requesting the Court require that Firestone grant Wise special exceptions to Firestone's CBA," AeBr.34,37-41, and, presumably, to do so would cause undue hardship. The evidence does not support this assertion, and even if it did, the law would not compel a finding in Firestone's favor. Firestone states that "[t]he Attendance Policy is incorporated into the CBA by reference" and asserts that "[a]lthough not all of the terms of the attendance policy itself are set forth in the CBA, the CBA specifically incorporates the attendance policy and references the relevant portions at issue here (i.e. the sixty (60) hour leave provision)." AeBr.4,41n.11. This contention is plainly incorrect. The attendance policy is a stand-alone policy, and examination of the vague, imprecise record citation provided by Firestone shows that, contrary to its assertion, there is absolutely no specific incorporation of the attendance policy into the CBA. See JA.406 (pages 24- 25 of the CBA); JA.462 (attendance policy). The company does not even attempt an explanation as to how the CBA "incorporates by reference" any of the attendance policy's terms, let alone the policy's sixty hour limit on unpaid leave. See AeBr.41n.11. The CBA provision at issue states that employees may take a limited amount of vacation time in half-day increments so long as the employee "ha[s] thirty-six (36) hours or less accumulated under the Company Attendance Policy at the time of the request," but makes no other mention of the attendance policy or its terms. JA.406 (Article VII, Sec.5, par.F of the CBA). This language simply does not amount to an incorporation of the attendance policy-in whole or part-into the CBA. To the contrary, the evidence plainly shows that the attendance policy is not part of the CBA. See JA.462 (attendance policy). At the very least, a reasonable factfinder could certainly conclude there is no incorporation by reference or otherwise. In any event, there is no merit to Firestone's contention that violating a provision of a CBA automatically amounts to an undue hardship and excuses the employer from doing so. See AeBr. 17-21,37-41. The Supreme Court settled any confusion there may have been regarding this question in Philbrook, when it observed that the accommodation of permitting an employee to exceed the amount of unpaid leave "allowed by the collective bargaining agreement, would generally be a reasonable one." 479 U.S. at 70. Nor does Hardison support Firestone's position. In Hardison, the Court concluded that Title VII does not require an employer to violate the terms of a CBA in a manner which deprives other employees of their rights under the CBA in order to accommodate an employee's religious beliefs. 432 U.S. at 81 ("It would be anomalous to conclude that by 'reasonable accommodation' Congress meant that an employer must deny the shift and job preference of some employees, as well as deprive them of their contractual rights, in order to accommodate or prefer the religious needs of others."). Hardison in no way stands for the proposition that merely violating the terms of a CBA, without any consequent harm to the rights of other employees, amounts to an undue hardship, as Firestone mistakenly contends. Hardison sought a transfer from a position in which the employer had been able to reasonably accommodate his religious practices, to one in which he would lose his seniority. Hardison, 432 U.S. at 67-68. In his new position, Hardison was required to work on his Sabbath when another employee was out on vacation because-unlike in his previous position-he now lacked sufficient seniority to avoid doing so, and while the employer agreed to allow the union to find him a different job, the union was not willing to violate the seniority provisions of the CBA to do so. Id. at 68. Hardison then asked to work only four days a week. Id. The employer rejected that proposal because "Hardison's job was essential and on weekends he was the only available person on his shift to perform it;" leaving the position empty would have "impaired . . . functions[] which were critical to airline operations;" filling his position with a supervisor or employee from another area (the only replacement options in that case) "would simply have undermanned another operation;" and "to employ someone not regularly assigned to work Saturdays would have required TWA to pay premium wages." Id. at 68-69. The Court later noted that "[t]here were no volunteers to relieve Hardison on Saturdays, and to give Hardison Saturdays off, TWA would have had to deprive another employee of his shift preference." Id. at 81. The circumstances in Hardison are materially different from this case. The accommodation options Firestone understood Wise requested would not have violated any term of the CBA, and Firestone has not demonstrated that accommodating Wise would have impinged on either the operation of the company or the rights of other employees. See AtBr.41-46. The evidence does not suggest, let alone indisputably establish, that Wise was the only person available to perform his job; Firestone's functions would have been impaired by his absence; Firestone would have had to fill his position with a supervisor or employee from another area and leave that other position unoccupied; the company would have had to pay another employee more in wages than it would pay Wise; or there were no volunteers and Firestone would therefore have to deny someone else's "shift preference" to cover Wise's absence. Indeed, as noted in the Commission's opening brief, the lack of evidence that any such calamitous consequences occurred following the roughly seven months that Wise was permitted to observe the Sabbath strongly supports the contrary conclusion. See AtBr.41-45. C. Firestone has no evidentiary support for its assertions of undue hardship. Firestone's factual recitation on the hardship issue is absolutely lacking in evidentiary support. Firestone does not provide a single record citation for its factual assertions on pages 20-21 of its brief, and several of these assertions are, in fact, completely devoid of support. For example, Firestone asserts that its facilities operate at least six, and sometimes seven days a week, but it points to no evidence in support of this assertion, and the citations it provides for this "fact" in its statement of facts do not even remotely provide support. See AeBr.1. In contrast, the Commission presented evidence that Wise was only required to work Monday through Friday, as well as those occasional Saturdays when the "Treating Unit" was in operation. See AtBr.4. Firestone also suggests that when Wise had to be absent due to his religious practices, a replacement was placed in his position "even if the work in other areas suffered." AeBr.20. Again, Firestone cites to no evidence supporting this assertion. Firestone makes numerous other unsupported factual assertions regarding the hardship it claims it would suffer if Wise were accommodated. For example, Firestone asserts that permitting Wise to exceed the attendance policy's limit on unpaid leave "would breach the CBA by depriving the other individual [sic] of their seniority right to shift selection under the CBA." AeBr.39. This claim is unexplained and utterly lacking in evidentiary support. Firestone points to no evidence that any employees would be denied a shift preference, or would otherwise suffer even a de minimis harm to their rights under the CBA, had Firestone provided Wise this accommodation. Firestone has accordingly failed to meet its burden of proof on this assertion.<5> See Chalmers, 101 F.3d at 1019 (employer's burden to show undue hardship). Firestone argues that accommodating Wise would "constitute unequal treatment of employees on the basis of religion." AeBr.40,47-49. As discussed in the Commission's opening brief, this argument is completely without merit and has been at least implicitly rejected by Ithaca. See AtBr.43-44. Firestone's similar argument that "Wise's leave of absence request in September would force other employees to work overtime to cover Wise's time away from work," AeBr.12, is equally baseless. As discussed in the Commission's opening brief at page 43, not only is there no evidence which supports this assertion, there is ample evidence to permit a reasonable factfinder to conclude to the contrary. Firestone further errs when it asserts that "employers are simply not required to pay premium wages to accommodate an employee's religious conflict." AeBr.50. Firestone's argument relies on the premise that any overtime payment is automatically beyond a de minimis cost to the employer. See AeBr.50-52. This is incorrect. In Hardison, the Court rejected the Court of Appeals' "suggest[ion] that TWA could have replaced Hardison on his Saturday shift with other available employees through the payment of premium wages." 432 U.S. at 84. However, the Court did not announce a per se rule regarding payment of overtime or other "premium wages"-rather, it stated that it was the fact that the employer would incur "additional costs" if it paid "premium wages" to a replacement which made such an option exceed the de minimis threshold. Id. (emphasis added). As argued in the Commission's opening brief, the evidence suggests that to the extent Firestone would have been required to pay overtime to cover Wise's shift, it would have incurred no additional costs in doing so because it would have had to pay Wise the same amount, including overtime, had he worked the Sabbath. In fact, Firestone has admitted as much. Wise was almost invariably on overtime status when the Sabbath arrived each week. JA.122 (Wise Dep. at 173). Jozwiakowski conceded that paying overtime to a replacement would not have resulted in Firestone incurring any additional costs-"the cost would be the same-it wouldn't matter."<6> JA.152 (Joz. I Dep. at 63). Firestone further asserts that permitting Wise to be absent during the work week at all would itself violate the CBA, and that granting Wise's leave of absence request would violate the CBA by somehow "exempting" him from the company's vacation and attendance policies-and all these would automatically cause undue hardship. AeBr.49-50. Despite its claims to the contrary, Firestone has presented no evidence that these options would result in an undue hardship. Firestone also claims that having employees work overtime would violate the CBA by not distributing overtime equally among all employees, but again ignores the evidence that its overtime program is voluntary and therefore would have no such detrimental effect.<7> AeBr.52n.13;AtBr.11. What Firestone fails to appreciate in constantly repeating its mantra that it would "violate the CBA" if it excused Wise from the attendance policy's limit on unpaid leave is that even if this were true (which it certainly is not), there is absolutely no evidence that such a violation would cause an undue hardship. Philbrook explicitly recognizes that an accommodation option which violates a CBA but does not harm other employees can be a reasonable accommodation under the statute. 479 U.S. at 70. Firestone has presented no evidence that any other employee was harmed in any way when Wise took unpaid leave over a seven-month period in 2002, or evidence suggesting that any other employee would have been harmed had he continued to do so in excess of the sixty hour limit. III. A Reasonable Jury Could Conclude that Bridgestone Americas Holding, Inc., is a Proper Defendant in this Suit. As argued in its opening brief, the Commission presented ample evidence to support a reasonable factfinder's conclusion that Bridgestone Americas Holding, Inc. ("BAH"), is a proper defendant in this suit. See AtBr.20-24. This Court and others recognize an exception to Title VII's requirement that defendants be named in the administrative charge. See AtBr.20-22. This exception arose out of the understanding that "Title VII does not require procedural exactness from lay complainants," and, accordingly, charges filed with the Commission "'must be construed with utmost liberality since they are made by those unschooled in the technicalities of formal pleading.'" Alvarado v. Bd. of Tr. of Montgomery Cmty. Coll., 848 F.2d 457, 460 (4th Cir. 1988); see also Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, 657 F.2d 890, 906 (7th Cir. 1981) ("Congress could not have intended that a person filing EEOC charges should accurately ascertain, at the risk of later facing dismissal, at the time the charges were made, every separate entity which may have violated Title VII."). The purposes behind the naming requirement are to put the charged party on notice of the claimed violation, and to permit the Commission and the charged party to attempt to resolve the charge through conciliation. Causey v. Blalog, 162 F.3d 795, 800 (4th Cir. 1998); Alvarado, 848 F.2d at 460. Where these twin goals have been met, suits can proceed against defendants not named in the administrative charge. Causey, 162 F.3d at 800-01; Alvarado, 848 F.2d at 460. Firestone argues on appeal that BAH does not fall under the exception because BAH did not have notice "of any charges against itself, nor an opportunity to conciliate on its own behalf." AeBr.58 (emphasis added). A reasonable factfinder, however, could find to the contrary. See AtBr.22-23. BAH prepared and submitted to the Commission, under its own letterhead, the respondent's response to Wise's charge of discrimination. See id. 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 charge. See id. The Commission's Letter of Determination was provided to BAH, named BAH as one of the collective respondents to the charge, and invited all respondents-including BAH-to participate in conciliation of the charge. See id. When the Commission determined that conciliation efforts had been unsuccessful, the Commission again contacted the respondents-including BAH-and informed them of this determination. See id. In arguing to the contrary Firestone simply asserts its own version of what it believes the evidence demonstrates, rather than examining whether a reasonable factfinder could find in the Commission's favor. Firestone asserts that BAH claims to have only been communicating with the Commission "on behalf of" its subsidiary. The proper question, however, is not what role BAH actually assumed in the administrative process but whether a jury could find that BAH had adequate notice of a charge against it and an opportunity to conciliate that charge on its own behalf. Thus, whether BAH actually, for example, engaged in conciliation efforts on its own behalf is not the issue.<8> Firestone claims Olsen v. Marshall & Ilsley Corp., 267 F.3d 597 (7th Cir. 2001), supports its position because in that case the court concluded there was a lack of adequate notice of the charge against the parent company, as opposed to the subsidiary, AeBr.55-56, but Olsen provides no such support. In Olsen, the court concluded that the plaintiff's own "self- serving allegations" were the only evidence offered on the question of notice and opportunity to conciliate-and the court found that proffer insufficient. 267 F.3d at 604. In contrast, in the instant case there is no question that the Commission explicitly identified BAH as a respondent to Wise's charge; that BAH was invited to participate in conciliation of that charge; that BAH did in fact participate in conciliation; and that BAH was subsequently notified that conciliation had not been successful. See AtBr.22-23. Unlike Olsen, there is ample evidence in this case upon which a jury could conclude that BAH had the requisite notice and opportunity to conciliate. Similarly, the other cases Firestone identifies as favorable to its position are distinguishable from this case. See AeBr.53-57 (citing Schnellbacher v. Baskin Clothing Co., 887 F.2d 124, 127 (7th Cir. 1989) (Commission did not identify parent corporation as a respondent to the charge; dismissal of the parent corporation for failure to satisfy the notice/opportunity rule was affirmed); Romain v. Kurek, 836 F.2d 241, 243- 46 (6th Cir. 1987) (individual was not named as a respondent, and no evidence that the individual had received the requisite notice or opportunity to conciliate). Conclusion For the aforementioned reasons, the Commission respectfully requests that this Court reverse the grant of summary judgment, and remand the case for further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant 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 Reply 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 6,991 words, from the Argument 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 were sent this 9th Day of May, 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 were sent this 9th Day of May, 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. 201 South College Street, Suite 2300 Charlotte, NC 28244 _____________________________ 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 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Washington, D.C. 20507 Office of General Counsel May 9, 2007 Patricia S. Connor, Clerk U.S. Court of Appeals for the Fourth Circuit 1100 East Main St., Suite 501 Richmond, VA 23219-3517 Re: EEOC, et al. v. Firestone Fibers, et al., No. 06-2203 Ms. Connor, Please find enclosed for filing in the above-referenced appeal one original and seven copies (eight documents in total) of the Reply Brief of Plaintiff-Appellant the U.S. Equal Employment Opportunity Commission. Enclosed in the aforementioned reply brief please find my certificate of service of copies of the reply brief on this Court, as well as on counsel of record for Plaintiff-Intervenor-Appellant David Wise and Defendants-Appellees Firestone Fibers, et al. Thank you for your assistance, and please feel free to contact me if you have any questions or concerns regarding this filing. Sincerely, 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 Enclosures cc w/encl: Vicki B. Rowan, Esq.; H. Bernard Tisdale, III, Esq. *********************************************************************** <> <1> Firestone is grasping for straws when it takes out of context language from separate opinions in Philbrook to argue that the majority did not indicate that reasonable accommodation must eliminate the conflict. See AeBr.30-31. Justice Marshall's opinion merely noted his view that "contrary to the Court's conclusion, ante at 373, the school board's accommodation of Philbrook's religious needs by merely allowing unpaid leave does not eliminate the conflict." Philbrook, 479 U.S. at 74 (Marshall, J., concurring in part and dissenting in part). Justice Stevens stated in his opinion that "[a]s the Court correctly holds, the employer has no statutory duty to resolve the conflict in the way the employee requests as long as the solution that is adopted is reasonable. I find it equally clear that the employer has no statutory duty to do anything more than strictly necessary to resolve the conflict." Id. at 76-77 (Stevens, J., concurring in part and dissenting in part). Justice Stevens' disagreement with the majority centered on his view that there was no conflict to be resolved-not, as Firestone suggests, the majority's failure to adopt a complete elimination rule. See id. at 81 (Stevens, J., concurring in part and dissenting in part) ("Since no statutory conflict between Philbrook's religion and his work duties occurred, the duty to accommodate his religious practices never arose."). In fact, these separate opinions make even more clear that the full Court understood a reasonable accommodation to be one which completely eliminates the conflict. <2> The Supreme Court's analysis in Barnett, which involved a slightly different reasonable accommodation standard under the Americans with Disabilities Act, nevertheless supports the complete elimination rule under Title VII. See AtBr.29n.3. In Barnett, the Court recognized that Congress's use of "the word 'accommodation . . . conveys the need for effectiveness' in the proposed accommodation," and this passage strongly suggests that an accommodation effort which leaves some level of religion/work conflict in place cannot possibly be considered "effective." See id. Firestone attempts to rebut the Commission's argument by noting that Barnett states that the word "reasonable" does not mean "effective." AeBr.35. Firestone misreads Barnett. The passage quoted by the Commission, in proper context, states "[i]t is the word 'accommodation,' not the word 'reasonable,' that conveys the need for effectiveness." Barnett, 535 U.S. at 400. This passage supports the Commission's position. Where an employer offers measures which are ineffective in eliminating the conflict, it fails to meet its statutory duty. Whether that failure is because the efforts are deemed not reasonable or not an accommodation is immaterial. Similarly, Firestone contends that the Commission is defining "reasonable" as "complete or total," see AeBr.36, but it again misses the point. However "reasonable" is defined, the accommodation must eliminate the conflict to pass statutory muster. <3> This, of course, is not to say that an employer's institutional policies play no role in assisting an employer in meeting its obligation to provide reasonable accommodation. The problem with Firestone's argument is that a reasonable finder of fact could find on the evidentiary record in this case that these "institutional accommodations" fall short of satisfying the statute's requirement because they did not eliminate the conflict between Wise's religious practices and his work requirements. See AtBr.26-31. <4> Firestone also complains that Wise should be barred from recovery because he did not pursue a grievance or use the "Compliance Hotline," but it makes no argument respecting these points. See AeBr.44. First, as neither assertion has been presented with any citation to supporting authority, each has been abandoned on appeal. See Hillman v. IRS, 263 F.3d 338, 343 (4th Cir. 2001) (Appellee's arguments which do not comport with Rule 28(b)'s requirement that all arguments contain citations to authority, are abandoned on appeal). Even if deemed to have been properly presented on appeal, these assertions are utterly meritless, as there is no requirement under the statute or controlling caselaw that an employee must avail himself of an employer's internal grievance program or complaint process in order to invoke his accommodation right under Title VII. The employee need only inform the employer of the need for an accommodation, and engage in a mutually cooperative effort to arrive at a solution for that need. See Philbrook, 479 U.S. at 69. <5> Firestone's claim that to accommodate Wise, it would be compelled to "grant[] Wise a preference in seniority structure and mov[e] him to first shift job," or "grant[] Wise . . . more floating holidays and vacation time than permitted under the CBA and hir[e] a replacement for Wise" is bogus. AeBr.37-38,45-46. The Commission never sought these accommodations. It is uncontested that Wise was not entitled to be placed in another position in violation of the CBA's seniority provisions, and that the Commission did not argue, and Wise did not request, that Firestone should have given Wise additional vacation days or floating holidays. In addition, there is absolutely no evidence that Firestone was asked to, or would be required to, "hire" a replacement to fill in for Wise during his absences. <6> Firestone also claims that the Commission "erroneously" argues that Firestone did not attempt to calculate the overtime costs it might have incurred in accommodating Wise's accommodation requests. AeBr.52n.14. It is Firestone that is in error. Firestone points to no evidence that supports its claim, and fails to explain the testimony of its own officials-Cash and Kirksey-that no one at Firestone ever estimated the overtime cost of accommodating Wise. See AtBr.9-10. <7> Firestone states that "[i]nterestingly, Wise told Cash that no other employees would want to be inconvenienced with Friday night and Saturday work." AeBr.43-44. However, Firestone's citation to the record provides no indication that such a statement was ever made, and Firestone's assertion is contradicted by the ample evidence that other employees were willing and able to volunteer to work on the Sabbath for Wise. See AtBr.11. <8> Firestone states that Firestone Fibers and BAH are separate corporate entities, but cites no authority for the proposition it suggests follows from this fact-that separate corporate entities cannot be named as respondents in a single charge, or defendants in a single complaint. See AeBr.52. Nor can it, as the rule is quite obviously to the contrary. See, e.g., Olsen v. Marshall & Ilsley Corp., 267 F.3d 597, 604 (7th Cir. 2001) (identifying when corporate subsidiary may be sued as well as the parent company). Firestone also claims, without supporting authority or argument, that the Commission's issuance of a cause finding naming BAH as a respondent "is insufficient to transform BAH into a proper party." AeBr.55. This argument is not only incorrect but misses the point, as a reasonable finder of fact could conclude on this record that BAH had the requisite notice and opportunity to conciliate to easily fall within the bounds of the naming exception.