No. 08-1626 _____________________________________ UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ______________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. THOMPSON CONTRACTING, GRADING, PAVING, and UTILITIES, INC., Defendant-Appellee. __________________________________________________________________ United States District Court for the Eastern District of North Carolina, Western Division Civil Action No. 5:05-CV-675-BO(3) __________________________________________________________________ OPENING BRIEF of APPELLANT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION __________________________________________________________________ RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel SUSAN R. OXFORD Attorney, EEOC 1801 L Street, N.W., Room 7010 Washington, DC 20507 Tel: (202) 663-4791; Fax: (202) 663-7090 TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Nature of the Case and Course of Proceedings. . . . . . . . . . . 2 B. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . 3 C. District Court Opinion. . . . . . . . . . . . . . . . . . . . . 14 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 15 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . 16 B. Summary judgment should be reversed because Thompson did not prove, as a matter of law, that accommodating Yisrael's Sabbath work restriction would have caused Thompson undue hardship. . . . . . . . . 17 1. The prima facie case. . . . . . . . . . . . . . . . . . . . . 19 2. Undue hardship. . . . . . . . . . . . . . . . . . . . . . . . 21 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 REQUEST FOR ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 40 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . 42 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases page Anderson v. Gen. Dynamics Convair Aerospace Div., 589 F.2d 397 (9th Cir. 1978). . . . . . . . . . . . . . . . . . . . 22 Andrews v. Va. Union Univ., Civ. No. 07-cv-447, 2008 WL 2096964 (E.D. Va. 5/6/08) (unpub.). . . . . . . . . . . . 39 Brown v. Polk County, IA, 61 F.3d 650 (8th Cir. 1995) (en banc). . . 22, 32 Celotex Corp. v. Catrett, 477 U.S. 317 (1986). . . . . . . . . . . . . . 16 Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012 (4th Cir. 1996) . . . passim EEOC v. Arlington Transit Mix, Inc., 957 F.2d 219 (6th Cir. 1991). . . . 23 EEOC v. Robert Bosch Corp., 169 Fed. Appx. 942 (6th Cir. 2006) (unpub.). . . . . . . . . . . . 17 EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307 (4th Cir. 2008) . passim EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569 (7th Cir. 1997). . . . . . 25 EEOC v. Ithaca Indus., Inc., 849 F.2d 116 (4th Cir. 1988) (en banc). . . . . . . . . . . . . . . . . . . . . 19, 23, 27, 35 EEOC v. Sears Roebuck & Co., 243 F.3d 846 (4th Cir. 2001). . . . . . 39 EEOC v. Texas Hydraulics, Inc., Civ. No. 06-cv-161, 2008 WL 2050815 (E.D. Tenn. Apr. 16, 2008) (unpub.). . . . . . . . . 17 EEOC v. Universal Mfg. Corp., 914 F.2d 71 (5th Cir. 1990). . . . . . . . 21 Howard v. Winter, 446 F.3d 559 (4th Cir. 2006). . . . . . . . . . . . 16 Redmond v. GAF Corp., 574 F.2d 897 (7th Cir. 1978). . . . . . . . . . . . 30 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). . . . . . 17 Rodriguez v. City of Chicago, 156 F.3d 771 (7th Cir. 1998). . . . . . 28 Shelton v. Univ. of Med. & Dentistry of NJ, 223 F.3d 220 (3d Cir. 2000). . . . . . . . . . . . . . . . . . . . . 28 Smith v. Pyro Mining Co., 827 F.2d 1081 (6th Cir. 1987). . . . . . . . . 22 Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481 (10th Cir. 1989). . . . . . 22 TWA v. Hardison, 432 U.S. 63 (1977). . . . . . . . . . . . . . . 15, 23, 32 Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394 (7th Cir. 1997). . . . . . 17 Statutes 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Title VII of the Civil Rights Act of 1964 42 U.S.C. §§ 2000e et seq. . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 2000e(j). . . . . . . . . . . . . . . . . . . . . . . . 18, 21 42 U.S.C. § 2000e-2(a)(1). . . . . . . . . . . . . . . . . . . . . 2, 18, 21 42 U.S.C. § 2000e-5(f)(3). . . . . . . . . . . . . . . . . . . . . . . . 1 Regulations 29 C.F.R. § 1605.2(c)(1). . . . . . . . . . . . . . . . . . . . . . . . 33 29 C.F.R. § 1605.2(d)(1)(i). . . . . . . . . . . . . . . . . . . . . . . .27 29 C.F.R. § 1605.2(d)(1)(iii). . . . . . . . . . . . . . . . . . . . . 28 Rules Fed. R. Civ. P. 56(c). . . . . . . . . . . . . . . . . . . . . . . . . . 16 Fed. R. App. P. 4(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF JURISDICTION This Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, which provides the United States courts of appeals with jurisdiction over appeals from the final decisions of United States district courts. The United States District Court for the Eastern District of North Carolina had jurisdiction over this case pursuant to 42 U.S.C. § 2000e-5(f)(3), which confers on the federal district courts jurisdiction over actions brought under Title VII of the Civil Rights Act of 1964. The district court entered final judgment on all issues in this case on March 31, 2008. JA486 (R.42).<1> Pursuant to Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure, the Equal Employment Opportunity Commission timely filed its Notice of Appeal in the district court on May 29, 2006. JA487 (R.43). STATEMENT OF THE ISSUE Whether the district court erred in granting summary judgment to defendant Thompson Contracting because on this record a reasonable jury would not be compelled to find that Thompson met its burden under Title VII of the Civil Rights Act of 1964 to prove that reasonably accommodating the religious practice of Banayah Yisrael (formerly known as Garry Parker) of not working on Saturday (his Sabbath) would cause undue hardship on the conduct of Thompson's business. STATEMENT OF THE CASE A. Nature of the Case and Course of Proceedings On September 28, 2005, the Equal Employment Opportunity Commission (EEOC or Commission) filed this action against Thompson Contracting, Grading, Paving, and Utilities, Inc. (Thompson) in the United States District Court for the Eastern District of North Carolina. JA7 (R.1-Complaint). The Complaint alleges that Thompson discriminated against Garry Parker in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), by refusing to reasonably accommodate Parker's sincerely held religious belief that he cannot work on Saturday, which is his Sabbath. JA8-9. The complaint further alleges that despite being informed of Parker's religious conflict, Thompson suspended Parker and ultimately discharged him when he refused to work on Saturdays, thereby depriving Parker of equal employment opportunities and adversely affecting his status as an employee because of his religion, Hebrew Israelite. Id. On May 21, 2007, Thompson filed a motion for summary judgment which the EEOC opposed. R.25, 26, 30, 31 (see JA4-5) (district court docket). The district court granted summary judgment in Thompson's favor by order dated March 31, 2008, and entered final judgment in Thompson's favor on the same date. JA484-86 (R.41-Order; R.42-Final Judgment). B. Statement of Facts Banayah Yisrael (formerly known as Garry Parker) has been a member of the Hebrew Israelite faith since 2003. JA194 (Yisrael Dep. 17). Yisrael has a bona fide religious belief that his faith requires him to observe the Sabbath by refraining from working between sunrise and sunset on Saturday, his Sabbath. JA199 (Yisrael Dep. 31). Yisrael has not worked on a Saturday since converting to the Hebrew Israelite faith. JA198 (Yisrael Dep. 25:11-12); see also JA348 (Yisrael Aff. ¶¶ 2&3). Thompson is a turn-key contractor that provides grading, paving, and utility services for commercial, residential, and government projects. JA111-12 (Stafford Dep. 17:9-18:1). On two separate occasions in 2004, Thompson hired Yisrael as a dump truck driver. Thompson first hired Yisrael on June 15, 2004. JA32 (Stafford Aff. ¶ 3). Thompson terminated Yisrael on September 9, 2004-within Thompson's 90-day probationary period-because Yisrael tested positive for marijuana on a random drug test. JA32 (Id. ¶ 3-4); see also JA237-39 (Yisrael Dep. 101:24-102:2, 105:3-14). Thompson rehired Yisrael as a dump truck driver on November 29, 2004, but terminated Yisrael for a second time on February 15, 2005, after Yisrael refused to work on three Saturdays because of his religious beliefs. JA325 (Termination Notice). Thompson's normal work week is Monday through Friday. JA407 (Employee Handbook). If it rains during the week, Thompson uses Saturday as a "make up" day, although the company does not always need all its employees to work on any particular Saturday. JA33, 81 (Stafford Aff. ¶¶ 8-9; Lowe Dep. 31).<2> During Yisrael's second period of employment for Thompson, Thompson employed about 250 people, most of whom were general equipment operators. JA32 (Stafford Aff. ¶ 5). According to Jim Stafford, Thompson's Director of Operations at the time, the company owned five dump trucks, one water truck, and two lowboys, all of which required a commercial driver's license ("CDL") to operate. JA33 (Id. ¶ 6). Thompson employed one water truck driver (David Quesenberry), two lowboy drivers (Jerome Ragland and Robert Lockley), and four dump truck drivers for its five dump trucks (Yisrael, Eric Smith, Ruby Gonzales, and Shelton Williams). Thompson also employed at least two other individuals with CDLs: Shawn Recore (January to April 2005) and Willie Jones (December 22, 2004, to January 28, 2005). JA32-33 (Id. ¶¶ 5-6). Because many of Thompson's contracting jobs required more hauling capacity than Thompson's own dump trucks can provide, Thompson regularly hired additional dump trucks and drivers ("independent contractors") to assist in its hauling operations. JA76-79 (Lowe Dep. 23:14-26:8). Thompson's Director of Production, Michael Lowe,<3> explained that around the time that Yisrael worked for Thompson, the company hired independent contractors at least two days per week and sometimes as often as every workday.<4> Id. The number of independent contractors hired by Thompson varied, but could be as many as forty-five contract trucks on a given day. JA78-79, 150 (Lowe Dep. 25:25-26:8; Stafford Dep. 115:18-24). Stafford explained that the independent contractor trucks can "haul more material" and, for that reason, are "usually [used] on the big dirt hauls and the stone hauls." JA188 (Stafford Dep. 210). Stafford estimated that, because of their larger size, it costs Thompson roughly twice as much to hire an independent contractor truck as it does to operate one of Thompson's own, smaller dump trucks. JA149-50 (Stafford Dep. 114:15-115:7). All, or the vast majority, of the independent trucks are hired from Woodell Transport, owned by Diane Thompson (wife of Bobby Thompson, who owns defendant Thompson). JA78 (Lowe Dep. 25); JA152 (Stafford Dep. 117:1-17) (Woodell Transport provided the independent trucks "90 percent of the time"). Thompson knew that Yisrael's religious beliefs prevented him from working on Saturdays. E.g. JA320-21 (Def.'s Responses to Requests for Admissions ##1&2). During Yisrael's first period of employment, a Thompson manager asked Yisrael to work on a Saturday. JA231 (Yisrael Dep. 94). Yisrael explained that he could not work on Saturday because it was his religious holy day, and the manager said "okay." JA231-32 (Id. 94-95). The following Monday, Stafford asked Yisrael why he did not work on Saturday, and Yisrael told Stafford he "couldn't work on Saturdays because of [his] religious beliefs." JA234-35 (Id. 97-98).<5> When Yisrael applied to work at Thompson the second time, he stated on his job application that he could not work on Saturdays because of his religious beliefs and handed the completed application to Stafford, to avoid any confusion concerning his continued unavailability for work on Saturday. JA248-49 (Yisrael Dep. 120:4-121:19).<6> Although Stafford admitted he was already aware of Yisrael's Sabbath observance when he hired Yisrael the second time, JA144-45 (Stafford Dep. 90:15-91:9), he nonetheless continued to press Yisrael to work on Saturdays. On the Friday of Yisrael's first week back at Thompson, December 3, 2004, Stafford asked Yisrael to work Saturday, December 4, and Yisrael explained he could not work because it was his Sabbath. JA254-58 (Yisrael Dep. 132:18- 136:13).<7> Thompson's other three dump truck drivers worked that day. See JA363-64 (Time Cards for Ruby Gonzalez, Shelton Williams, & Eric Smith for 11/29-12/5). Thompson did not hire any independent contractor trucks. Yisrael was absent on Thursday, December 9, for a vocational rehabilitation appointment with the Veterans Administration. JA261-62 (Yisrael Dep. 139-40). Although Yisrael informed his immediate supervisor, Lowe, the day before that he would be absent the next day, JA262 (id. at 140:16-18), and Thompson's employee handbook requires only that employees give at least 24 hour advance notice of any anticipated absences, see JA84, 407 (Lowe Dep. 37:1-7; Employee Handbook), Stafford gave Yisrael a verbal warning and told him he needed to provide more than one day's notice of an anticipated absence. JA262-63, 265 (Yisrael Dep. 140:25-141:13, 144:21-25). The following week, Lowe asked Yisrael on Friday, December 17, to work the next day, a Saturday. Yisrael told Lowe he could not work "because of my religious beliefs," and Lowe nodded and said, "I understand." JA88, 267-68 (Lowe Dep. 47:2-14; Yisrael Dep. 150:12-151:11). Lowe later explained that when Yisrael said his religion did not allow him to work on Saturday, he "[did not] have a problem with it," he "just went to another truck driver." JA88 (Lowe Dep. 47:15-17). Thompson's other three dump truck drivers worked that day, and Thompson hired thirteen independent contractor trucks. See JA369 (Time Cards for Gonzalez, Williams, & Smith for 12/13-12/19); JA333-34, 336-37 (Woodell Invoices). On Monday, December 20, Stafford suspended Yisrael for three days. JA324 (Employee Warning Notice dated 12/20/04). The suspension notice stated that Yisrael "did not show up or call in" on December 18 and that it was "the second week in a row this has happened." Id. Although the notice stated that Yisrael was being disciplined, in part, for not "calling in," Lowe explained that when an employee has advised his supervisor ahead of time that he cannot work on a particular day, as Yisrael did here, Thompson does not require the employee to contact Thompson again on the morning he cannot work because the supervisor is already aware of the employee's unavailability. JA84 (Lowe Dep. 37). Under "Action Taken," the notice said: "A verbal warning on 12-10-04, written warning on 12-20-04 w/ 3day suspension, next infraction will result in termination." JA324. Around this time, Lowe asked Yisrael to provide a letter from his spiritual leader verifying that he could not work on Saturday. JA95-96, 275-76 (Lowe Dep. 66:20-67:5; Yisrael Dep. 170:22-171:2). Yisrael obtained the letter within a week or two of Lowe's request and gave it to the company receptionist. JA197, 277 (Yisrael Dep. 20, 172:15-24). The letter states that Yisrael is a member in good standing of the congregation. The letter further explains that the congregation has a religious duty "to keep all the laws of the Creator," which include not working on the Sabbath, and that "[t]he Sabbath day begins at sunrise Saturday and concludes at sundown Saturday." JA328 (Letter from House of Yisrael of Atlanta). Stafford acknowledged that the letter "came across [his] desk" during Yisrael's employment, and he put it in Yisrael's employee file. JA147-48 (Stafford Dep. 111:13-112:7). Stafford did not, however, show the letter to Lowe, even though Lowe was responsible for scheduling dump truck drivers for Saturday work. See JA96 (Lowe Dep. 67:6-7); n.3, supra. Lowe said if he had seen the letter, he would have accommodated Yisrael's religious need to have Saturdays off, and Lowe saw no reason why such accommodation would not have been possible. JA97-98 (Lowe Dep. 68:2-6, 70:13-23). Stafford also never showed the letter to Thompson's Equal Employment Opportunity (EEO) Officer, Joe Chukwu, nor did Stafford consult with Chukwu about how to handle Yisrael's religious conflict. JA46-49 (Chukwu Dep. 68:8-69:23, 73:12-74:24). Chukwu said if he had known about the letter before Yisrael's discharge, it would have changed his reaction to Stafford's desire to terminate Yisrael's employment. JA50 (Chukwu Dep. 76:19-23). In January, 2005, Yisrael accidentally damaged a dump truck's tailgate while dumping a load of concrete, and Lowe gave Yisrael a written warning for "unsafe dumping of concrete" based on "carelessness." See JA331 (Employee Warning Notice dated 1/17/05). Lowe later explained that this type of incident is common, especially during a driver's probationary period, and is not something that would lead Thompson to terminate a driver's employment. JA93-94 (Lowe Dep. 62-63). Unlike the December 20 suspension notice, which specifically warned that the "next infraction will result in termination," the January written warning did not mention any prior infraction or suggest any possible connection to progressive discipline or future consequences. JA331. On Friday, February 11, 2005, Lowe asked Yisrael to work on Saturday. As before, Yisrael told Lowe he could not work because Saturday was his Sabbath; Lowe again said he understood. JA275-76 (Yisrael Dep. 170:12-171:21). Thompson hired twelve independent contractor trucks on this Saturday. JA338-41 (Woodell Invoices). On Monday, February 14, Yisrael filed a charge with the EEOC claiming that Thompson failed to accommodate his religious beliefs and indicating he expected to be terminated for refusing to work on Saturdays. See JA326 (EEOC Charge). The next morning, February 15, Thompson terminated Yisrael's employment. JA325 (Employee Termination Notice dated 2/15/05). According to Yisrael, Stafford "told me that I was being terminated because my religious schedule conflicted with the company's work schedule." JA278 (Yisrael Dep. 179:2-25). The termination notice signed by Stafford stated: "Employee was terminated because of unsatisfactory job performance," explaining that during the 90-day probationary period, Yisrael "has not had regular, dependable attendance as required by our company policy." JA325. In his deposition, Stafford reiterated that Yisrael was discharged because he was unable to work on Saturday, stating: "[Yisrael] signed a company policy stating that he would abide by my rules and that was part of it, working on Saturday. If he didn't want to do what he signed he was going to do,...[h]e shouldn't work there." JA170 (Stafford Dep. 151:5-13).<8> The EEOC filed suit, alleging Thompson unlawfully failed to accommodate Yisrael's religious beliefs. JA1 (R.1-Complaint). During discovery, the EEOC learned that after Thompson terminated Yisrael in February 2005, the company did not hire a new dump truck driver for more than two months. See JA312-13 (Def.'s Amended Resp. to Interrog. #24 (1/16/07)). The EEOC also learned that no one at Thompson ever inquired whether there were any other Thompson employees with CDLs who were not already driving on the Saturdays in question and were willing to work in Yisrael's place. Shawn Recore and David Quesenberry, for example, both had a CDL that qualified them to drive a dump truck. JA32 (Stafford Aff. ¶ 5). Their time cards show that neither worked on February 12, the Saturday that precipitated Thompson's discharge of Yisrael. JA323, 389. With respect to any future Saturdays where a conflict might arise, Jerome Ragland and Robert Lockley, who worked at Thompson as lowboy drivers, see JA32 (Stafford Aff. ¶ 5), each said they would have volunteered to work on Saturdays in Yisrael's place, even at Yisrael's lower rate of pay. See JA68-70, 104-05 (Ragland Dep. 38-39; Lockley Dep. 28-30). The Commission also learned during discovery that Thompson was already accommodating another Sabbatarian, Ivan Larios. Thompson had excused Larios from Saturday work during his entire six years working there as a general equipment operator. JA56-62 (Larios Dep. 12:4-23, 14:22-19:23). Most of Thompson's employees were general equipment operators. See JA32 (Stafford Aff. ¶ 5). Stafford explained that there were sufficient general equipment operators who were willing and able to work on Saturdays to enable Thompson to accommodate Larios's religious conflict with working on excuse these employees with Saturday. JA175-76 (Stafford Dep. 167:25-168:9). Following discovery, Thompson moved for summary judgment. JA30 (R.25-Motion for Summary Judgment). Thompson argued that the Commission could not establish a prima facie case under Title VII because "it cannot demonstrate that Thompson could have reasonably accommodated Mr. Parker's religious belief by exempting him from all Saturday work." R.26 (Thompson's Summary Judgment Memorandum ("SJ Mem.")) at 13-14. Thompson asserted that having one of its dump trucks unused during a Saturday work day would cause it to suffer "a lost opportunity cost while its dump truck sits idle for the day." Id. at 18 (citing Stafford Dep. 114-15 (JA149-50); Lowe Dep. 26-27 (JA79-80)). Thompson further asserted that finding in-house substitutes was not feasible, hiring independent contractors would be more expensive, and giving Yisrael Saturdays off would constitute discrimination in his favor. Id. at 16-20. The EEOC opposed summary judgment, arguing that Thompson failed to demonstrate that accommodating Yisrael would have caused it undue hardship. R.30 (EEOC's Memorandum in Opposition ("SJ Opp.")) at 14-25. C. District Court Decision The district court granted summary judgment for Thompson. See R.41 (Order in EEOC v. Thompson Contracting, Grading, Paving, and Utilities, Inc., Civ. No. 05-cv-675 (E.D.N.C. Mar. 31, 2008)) (Order). The court failed to provide any analysis of the Commission's accommodation claim and stated, instead, that it found "no evidence that the employer, the defendant, discriminated against the employee because of his religion or religious practice." JA485 (Order at 2). The court did not address whether Thompson had offered Yisrael a reasonable accommodation or whether Thompson had demonstrated that doing so would constitute undue hardship. Rather, the district court simply concluded that the termination decision was nondiscriminatory: "It appears the discharge was related solely to performance, and that having given this employee a second chance after his earlier discharge, the employer was justified in later discharging the employee based on his performance, the accident with a company truck, and random and unauthorized absence from work." Id. SUMMARY OF ARGUMENT The district court erred in granting summary judgment because Thompson did not meet its statutory burden of proof to demonstrate undue hardship. Under Title VII, when a plaintiff demonstrates the elements of a prima facie case of failure to accommodate a religious conflict, as the EEOC did here, the burden of proof shifts to the employer to prove, by a preponderance of the evidence, that it could not reasonably accommodate the religious conflict without undue hardship. Since Thompson bears the burden of proof on this point, Thompson could properly prevail on summary judgment only if it put forth undisputed evidence that would compel a reasonable jury to conclude that excusing Yisrael from working on Saturdays would have imposed an undue hardship on the conduct of Thompson's business. Thompson's summary judgment evidence did not come close to meeting this standard. Indeed, Thompson failed to demonstrate that accommodating Yisrael would have imposed any cost on the company, let alone more than a "de minimis cost," the threshold set by the Supreme Court in TWA v. Hardison, 432 U.S. 63 (1977). The EEOC, on the other hand, pointed out several ways that Thompson could have reasonably accommodated Yisrael's religious conflict. On this record, a reasonable jury would not be compelled to find that excusing Yisrael outright from the occasionally-required Saturday work, with or without implementing one of the EEOC's suggested alternatives, would have caused Thompson undue hardship. ARGUMENT A. Standard of Review This Court reviews a district court's grant of summary judgment de novo, applying the same standard as the district court and 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). Generally, "[s]ummary judgment is proper when the 'pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits...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)). Given that the evidence was sufficient to establish a prima facie case of failure to provide a reasonable accommodation for Yisrael's religious conflict, the burden of proof was on Thompson to prove, by a preponderance of the evidence, that accommodating Yisrael's religious beliefs would have caused the company undue hardship. Under these circumstances, to prevail as the movant on summary judgment, Thompson was required to present undisputed evidence that would compel a reasonable jury to find that Thompson proved its defense of "undue hardship." In assessing whether Thompson met this burden of proof, the district court was required to draw all reasonable inferences in favor of the EEOC and to consider the record as a whole, without making any credibility determinations or weighing the evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). Where a defendant fails to present sufficient evidence in the summary judgment process to satisfy its burden of proving undue hardship, or where the summary judgment evidence creates a disputed issue of material fact with respect to a defendant's proof of undue hardship, summary judgment is properly denied. See EEOC v. Robert Bosch Corp., 169 Fed. Appx. 942, 944, 946 (6th Cir. 2006) (unpub.); EEOC v. Texas Hydraulics, Inc., Civ. No. 06-cv-161, 2008 WL 2050815 (E.D. Tenn. Apr. 16, 2008) (unpub.); cf. Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997) ("[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.") (Posner, J.). B. Summary judgment should be reversed because Thompson did not prove, as a matter of law, that accommodating Yisrael's Sabbath work restriction would have caused Thompson undue hardship. The district court, by ignoring entirely the EEOC's religious accommodation claim and holding, instead, that defendant "was justified in ...discharging [Yisrael] based on his performance," JA485 (Order at 2), failed to consider the relevant evidence and failed to apply the proper legal standards under Title VII. Under the proper standards, summary judgment should be reversed because the record evidence cannot fairly be read to compel a finding that Thompson could not have accommodated Yisrael's Sabbath observance without undue hardship. Under Title VII, it is unlawful for an employer to discharge or otherwise to discriminate against any individual because of his or her religion. 42 U.S.C. § 2000e-2(a)(1). Title VII defines the term "religion" to include "all aspects of religious observance and practice, as well as belief." 42 U.S.C. § 2000e(j). An employer must accommodate an employee's religious observances or practices "unless an employer demonstrates that he is unable to reasonably accommodate an employee's...religious observance or practice without undue hardship on the conduct of the employer's business." Id. A plaintiff establishes a prima facie case for a religious accommodation claim by showing: "'(1) [the employee] has a bona fide religious belief that conflicts with an employment requirement; (2) [the employee] informed the employer of this belief; [and] (3) [the employee] was disciplined for failure to comply with the conflicting employment requirement.'" EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307, 312 (4th Cir. 2008) (quoting Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1019 (4th Cir. 1996); other citations omitted). If the plaintiff establishes a prima facie case, the burden then shifts to the employer to "demonstrate either (1) that it provided the plaintiff with a reasonable accommodation for his or her religious observances or (2) that such accommodation was not provided because it would have caused an undue hardship-that is, it would have 'result[ed] in "more than a de minimis cost to the employer."'" Firestone, 515 F.3d at 312 (internal citations omitted). Failure to make any effort to accommodate an employee's religious beliefs is evidence the employer discriminated against the employee in violation of Title VII. See EEOC v. Ithaca Indus., Inc., 849 F.2d 116, 119 (4th Cir. 1988) (en banc); see also Chalmers, 101 F.3d at 1020-21 (employer's "refusal even to attempt to accommodate an employee's religious requests" may indicate improper motive on employer's part). 1. The prima facie case. As a threshold matter, there is no doubt that the Commission produced evidence sufficient to establish a prima facie case of failure to accommodate. Yisrael has a bona fide religious belief that conflicts with an employment requirement: Yisrael's Hebrew Israelite faith dictates that he observe the Sabbath by not working from sunrise to sunset on Saturday, a religious practice that conflicts with Thompson's occasional requirement that its dump truck drivers work on Saturdays. JA194, 199 (Yisrael Dep. 17, 31). Yisrael informed Thompson of this religious conflict: he told both Stafford and Lowe, and Thompson admits it knew of this conflict. JA231-35, 248-49, 254-57, 275-76 (Yisrael Dep. 94, 97-98, 120-21, 132-35, 170-71); JA320-21 (Defendant's Admissions ##1&2). Ultimately, Yisrael was disciplined for failing to comply with the conflicting employment requirement: Thompson imposed a three-day suspension on Yisrael for not working on Saturday, December 18, warning that the "next infraction will result in termination." JA324 (Employee Warning Notice dated 12/20/04). Thompson followed through on this warning and terminated Yisrael for not working on Saturday, February 12. Stafford specifically told Yisrael, at the time, that he was discharging him because Yisrael's "religious schedule conflicted with the company's work schedule." JA278 (Yisrael Dep. 179). The termination notice stated that Yisrael "has not had regular, dependable attendance as required by our company policy." JA325 (Employee Termination Notice dated 2/15/05). Given that three of the four work days that Yisrael missed-including both absences that resulted in formal discipline-were a result of Yisrael's Sabbath observance, a jury could reasonably conclude that Yisrael was disciplined and then discharged for observing to his religious restriction against working on Saturdays and, thus, that the EEOC established a prima facie case under Title VII.<9> 2. Undue hardship. Thompson does not contend that it accommodated Yisrael's religious conflict. Therefore, Thompson bears the burden of proving that it could not reasonably accommodate Yisrael's religious belief without undue hardship on the conduct of its business. 42 U.S.C. §§ 2000e-2(a)(1), 2000e(j); Firestone, 515 F.3d at 312. In other words, to prevail on summary judgment, Thompson had to present undisputed evidence from which a reasonable jury could only find that Thompson met its burden to prove "undue hardship." Because the district court failed to place this burden on Thompson, and because Thompson failed, in any event, to make this showing, summary judgment was improper. Whether an accommodation poses an undue hardship is a question of fact that depends on all the circumstances. See EEOC v. Universal Mfg. Corp., 914 F.2d 71, 74 (5th Cir. 1990). Nothing in the district court's opinion indicates that it gave any consideration to this legal issue, let alone that it found undisputed evidence establishing undue hardship as a matter of law. Had the district court properly analyzed this issue in light of the entire summary judgment record, the court would have had to find that Thompson did not satisfy its burden of proof. To meet its burden of proof on summary judgment, an employer cannot simply assert "undue hardship," but must present undisputed evidence demonstrating that accommodating the religious conflict would cause it undue hardship. See, e.g., Smith v. Pyro Mining Co., 827 F.2d 1081, 1086 (6th Cir. 1987) ("An employer must...present evidence of undue hardship; it cannot rely merely on speculation."). An employer need not actually offer an accommodation and experience the undue hardship if the employer reasonably believes that accommodation will, for example, violate a collective bargaining agreement or impose more than a de minimis impact on coworkers. Nevertheless, as this Court recently recognized, an employer's consideration of the potential impact of an accommodation "may not be based on mere speculation or conjecture." See Firestone, 515 F.3d at 317 (citing Brown v. Polk County, IA, 61 F.3d 650, 655 (8th Cir. 1995) (en banc)). Other circuits have concurred in this critical principle. See, e.g., Brown, 61 F.3d at 655 (asserted hardship "must be 'real' rather than 'speculative,' 'merely conceivable,' or 'hypothetical'") (internal citations omitted); Toledo v. Nobel- Sysco, Inc., 892 F.2d 1481, 1492 (10th Cir. 1989) ("Any proffered hardship...must be actual") (emphasis added); Smith v. Pyro Mining, 827 F.2d at 1086; Anderson v. Gen. Dynamics Convair Aerospace Div., 589 F.2d 397, 402 (9th Cir. 1978) ("Undue hardship cannot be proved by assumptions nor by opinions based on hypothetical facts."). Furthermore, an employer's "refusal even to attempt to accommodate an employee's religious requests" before the employee has violated a workplace rule and incurred a sanction may indicate "improper motive on the employer's part." Chalmers, 101 F.3d at 1020-21. See Ithaca, 849 F.2d at 119 (Title VII violated where employer "made no effort to accommodate" an employee); see also EEOC v. Arlington Transit Mix, Inc., 957 F.2d 219, 222 (6th Cir. 1991) (reasoning, in reversing district court's grant of summary judgment, that employer was "in no position to argue" it could not reasonably accommodate plaintiff's religious needs without undue hardship" where employer "had not made a sincere effort at accommodation"). Defendant simply failed to make this showing. At the outset, it is notable that only occasionally did Thompson require its dump truck drivers to work on a Saturday. During Yisrael's first twelve-week period of employment, Yisrael was asked to work on a Saturday only once, and Thompson scheduled only three makeup Saturdays during the eleven weeks of Yisrael's second period of employment. See discussion at pages 6-11, supra. Thus, the Saturday work requirement at issue here occurred only on a sporadic and infrequent basis rather than every week, in stark contrast to those situations where a company runs its operations "around-the-clock," see, e.g., TWA v. Hardison, 432 U.S. at 80, or requires overtime on a regular and frequent basis. See, e.g., Firestone, 515 F.3d at 310, 318 (Firestone's production ran 24 hours a day, Monday through Friday, and "nearly every Saturday" during 2002). Thompson claimed that Yisrael's absence on these occasional Saturdays imposed an undue hardship due to "lost opportunity cost." See R.26-SJ Mem. at 18.<10> Yet the evidence did not establish, much less compel, a jury to find that Yisrael's Saturday absences cost the company any additional expense or had any negative affect on the conduct or operation of Thompson's business. See, e.g., JA154-55 (Stafford Dep. 119:4-16, 121:2-12). Thompson did not hire any extra drivers on December 4, and the company did not offer any evidence that Yisrael's absence that day caused any additional expense, delayed the completion of a project, or had any other adverse effect on the conduct of Thompson's business. On each of the next two Saturdays that Thompson asked Yisrael to work (December 18 and February 12), Thompson hired a dozen or more independent contractor trucks. See discussion at pages 8-11, supra. According to Thompson, each independent contractor truck holds a greater capacity than Thompson's own dump trucks.<11> Although it is possible that Yisrael's absence necessitated the hiring of one of these trucks on each of these two dates, it is also possible that Thompson would have had to hire the same number of independent contractor trucks, even if Yisrael had worked.<12> Thompson offered no specific evidence that it hired more trucks because of Yisrael's absence. A jury could reasonably infer from this record that Yisrael's absence made no difference on these three dates. Moreover, the company did not hire another dump truck driver to replace Yisrael for more than two months after it fired him. JA312-13 (Def's Amended Response to Interrogatory #24 (1/16/07)). During this time, Thompson relied on only three drivers for its five dump trucks. See JA186 (Stafford Dep. 203:4-24). A reasonable jury could find that since, for more than two months, Thompson's regular week and occasional Saturday work was all accomplished with only three dump truck drivers, Thompson's claim that Yisrael's absence on two Saturdays in December and one Saturday in February caused it undue hardship is simply not credible. See, e.g., EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1577 (7th Cir. 1997) (delay in replacing employee who requested religious accommodation is evidence that employer could have accommodated employee without undue hardship). Granted, a jury might credit Thompson's claim that having one of its dump trucks sit in the lot during Yisrael's three Saturday absences caused it to experience some unquantified "lost opportunity cost." See discussion at page 13, supra. On summary judgment, however, Thompson had to present evidence that would not just permit a jury to find, but would compel the jury to find that any such cost actually existed and was more than de minimis. Thompson's generalized, non- specific claims do not compel such a finding. Cf. JA154 (Stafford Dep. 119:4-16) (For example, Stafford could not say whether Yisrael's failure to work on a Saturday caused Thompson to be late completing any contract or to incur any penalties.). In any event, to the extent Thompson actually did need all of its dump truck drivers to work on the occasional Saturday when the situation arose, a reasonable jury could find that Thompson failed to employ at least two available alternatives-asking other employees if they were willing to work in Yisrael's place and transferring Yisrael to a different position where his Sabbath observance could be more easily accommodated. As this Court recognized in its en banc decision in Ithaca, "the use of voluntary substitutes with similar qualifications" is one available means for employers to accommodate workers whose religious beliefs conflict with their work schedules. See Ithaca, 849 F.2d at 119 & n.5 (citing the EEOC's Guidelines on Discrimination Because of Religion, 29 C.F.R. § 1605.2(d)(1)(i)). The EEOC offered evidence that there were qualified drivers working for Thompson who would have volunteered to work on a Saturday in Yisrael's place, at least two of whom were not already driving another vehicle on February 12. See JA68-70, 104-05, 323, 389 (Ragland Dep. 38-39; Lockley Dep. 28-30; Recore and Quesenberry time cards). Indeed, Lowe, who was responsible for securing drivers when Saturday work was required, believed he could have worked around Yisrael's Saturday work restriction.<13> Thompson never attempted to implement the available option of using voluntary substitutes, however. Although Thompson baldly asserted that "Stafford considered whether there might be other employees who could work in [Yisrael's] place," see R.33 (Thompson's Reply at 8 n.10), the summary judgment evidence would permit a reasonable jury to disbelieve Stafford on this point, as he was unable to recall even a single, specific instance when he undertook such a step. JA181-84 (Stafford Dep. 196-99). Alternatively, a reasonable jury could find, on this record, that Thompson could have offered to transfer Yisrael to another position. At the same time that Thompson was disciplining Yisrael for not working on Saturday because of his religious beliefs, the company was accommodating another Sabbatarian, general equipment operator Ivan Larios. In fact, Thompson had excused Larios from working on Saturdays for his entire six-year tenure with the company. JA56-62 (Larios Dep. 12, 14-19). General equipment operators comprised the bulk of Thompson's workforce (approximately 200 out of 250 employees). JA32 (Stafford Aff. ¶ 5). Stafford, acknowledging that Thompson had an obligation to reasonably accommodate an employee's religious beliefs, including a religious belief not to work on Saturday, explained that Thompson could accommodate a Saturday work restriction for general equipment operators because there was a larger pool of comparable workers to draw on when seeking a Saturday substitute. JA170, 175-76, 184 (Stafford Dep. 151:14-21, 167:21-168:9, 199:4-22). "Lateral transfer" is another form of option available to employers to accommodate employee religious conflicts. See, e.g., Shelton v. Univ. of Med. & Dentistry of NJ, 223 F.3d 220, 226- 28 (3d Cir. 2000); Rodriguez v. City of Chicago, 156 F.3d 771, 775 (7th Cir. 1998); 29 C.F.R. § 1605.2(d)(1)(iii). The EEOC presented evidence that Yisrael would have accepted a transfer to general equipment operator had Thompson offered him this option, but the company never did. See JA349 (Yisrael Aff. ¶ 8); JA184 (Stafford Dep. 199:23-25). A reasonable jury could have found that this was another possible accommodation that Thompson could have offered Yisrael, and Thompson presented no evidence that offering Yisrael a transfer would have caused the company undue hardship. Thompson attempted below to counter these suggested accommodations, asserting that finding alternate drivers would have been difficult or costly to implement and that Yisrael would not have accepted a transfer, had it been offered. The EEOC presented evidence contesting each of Thompson's assertions. Thus, at most Thompson's evidence creates a factual dispute concerning the feasibility of the accommodations the Commission identified. Considering the record as a whole, however, Thompson's evidence does not establish "undue hardship" as a matter of law. For instance, Thompson asserted below that substituting other drivers for Yisrael was not feasible because the Saturday make-up schedule was unpredictable and often last-minute and, therefore, substitute drivers were difficult to identify. Thompson further asserted that substitutes who had the proper CDL were either already working on those days, lacked the requisite training and experience, or did not fall under the company's insurance policy. Thompson also argued that even if substitutes had been available, the company would have had to pay them a higher rate, thereby imposing a financial burden on the company.<14> Thompson further asserted that if substitute drivers were unavailable, the company would have to rent independent contractor trucks from an outside company at a higher operational cost than for its own dump trucks. Finally, Thompson asserted that allowing Yisrael to have every Saturday off when the other CDL holders were required to work would constitute religious discrimination in favor of Yisrael and at the expense of others. Based on the disputed evidence presented below, a reasonable jury would not have been compelled to accept Thompson's assertions. For example, the EEOC identified several Thompson employees with class A or B CDLs who were already on Thompson's insurance policy, two of whom indicated a willingness to fill in for Yisrael on make-up Saturdays even at Yisrael's lower rate of pay, and two of whom were not already working on February 12.<15> See discussion at page 27, supra. Stafford admitted that even after Yisrael told him he could not work on Saturdays because of his religion, Stafford did not inquire whether there were any other CDL holders in Thompson's workforce who could drive a dump truck when needed on a Saturday. JA183-84 (Stafford Dep. 198:25-199:3). Stafford further conceded that he did not know whether there would have been any additional cost to add any such drivers to the company's insurance policy, JA181- 83 (Stafford Dep. 196:18-198:20), and Thompson presented no evidence that this was actually the case. Thus, Thompson did not prove as a matter of law that using substitute drivers would have imposed more than a de minimis cost, if any. A reasonable jury could find, on this record, that Thompson failed to meet its burden of proving that seeking voluntary substitutes to drive in Yisrael's place would have caused undue hardship. Significantly, although Stafford baldly alleged that if substitutes were unavailable, accommodating Yisrael would have inevitably caused the company to hire more costly independent contractor trucks, Thompson did not establish this as a matter of law. A reasonable jury could find that Yisrael's absence did not cost Thompson anything on Saturday, December 4, because Thompson did not hire any additional drivers on that date, see JA332-47 (Woodell Invoices), and Thompson offered no evidence of any cost over-runs or delays in project completion associated with Yisrael's absence. Although Thompson hired multiple independent drivers on December 18 and February 12, Thompson presented no evidence that this was necessitated by Yisrael's absence. Since a question of fact remains as to whether Thompson would have hired any fewer outside drivers had Yisrael worked, a reasonable jury, presented with nothing more than this, would not have been compelled to conclude that Yisrael's absence on December 18 and February 12 caused Thompson to hire outside drivers. Indeed, a jury could find that Thompson failed to establish that Yisrael's absences caused the company any additional cost, let alone more than a de minimis cost, as Title VII requires. See TWA v. Hardison, 432 U.S. at 84; Firestone, 515 F.3d at 312. Finally, Thompson presented no evidence that permitting Yisrael to observe his Sabbath would have negatively affected employee morale. To the contrary, Thompson's accommodation of Larios's Saturday Sabbath observance during his six years of employment at Thompson suggests this was not a bona fide concern with respect to Yisrael. See JA174-76 (Stafford Dep. 166:15-168:19). Thompson's mere speculation that accommodating Yisrael might have a negative effect on employee morale is insufficient to compel such a finding as a matter of law and, therefore, is inadequate to support summary judgment. See Brown, 61 F.3d at 656-57 (reversing summary judgment and concluding employer's evidence that a supervisor "had 'heard' that 'some people...were concerned'" and "discerned" a negative impact on employee morale was too hypothetical to show any actual undue hardship). Title VII requires employers to consider all available options before disciplining or discharging an employee for violating a workplace rule where it conflicts with the employee's religious beliefs. See 29 C.F.R. § 1605.2(c)(1) ("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.") (emphasis added). Thompson's wholesale failure here to consider any possible accommodations suggests it had an "improper motive" when it ignored Yisrael's notice to the company that he could not work on Saturdays because of his religion. Chalmers, 101 F.3d at 1020-21. As noted above, a reasonable jury could find, from this record, that Stafford, although acknowledging Thompson's obligation to reasonably accommodate employees' religious beliefs, see JA170 (Stafford Dep. 151:14-21), never explored whether in-house substitutes were available, never inquired how much it would cost to add a substitute driver to its insurance policy, and never asked Yisrael if he was interested in transferring to a general operator position to facilitate accommodation. JA181-84 (id. at 196-99); JA349 (Yisrael Aff. ¶ 8). Indeed, Stafford never even consulted Thompson's EEO official concerning Yisrael's refusal to work on Saturdays based on his religion, a step that might have altered the course of events. See JA48-50 (Chukwu Dep. 73:12-74:24, 76:11-23). When Stafford notified Chukwu in February 2005 that he intended to discharge Yisrael because of poor attendance, Stafford told Chukwu only that he could not have a truck sitting out at the shop and then hire an independent truck driver to do the job. JA44-46 (Chukwu Dep. 54:12-25, 58:12-21, 68:1-3). Stafford did not tell Chukwu that Yisrael's refusal to work on Saturdays arose out of a religious belief; Chukwu learned this only after Thompson received Yisrael's EEOC charge. JA46- 47 (Chukwu Dep. 68:8-69:23). When Chukwu then asked Stafford whether Yisrael had told him he could not work on Saturdays because of his religion, Stafford claimed that Yisrael had never informed him of this religious conflict. JA48 (Chukwu Dep. 73:5-25). As noted above, however, Stafford had had several conversations with Yisrael about his religious conflict, and Yisrael states that Stafford explicitly stated that he was terminating Yisrael "because my religious schedule conflicted with the company's work schedule." JA278 (Yisrael Dep. 179). Based on this record, a jury could conclude that Stafford purposefully did not tell Chukwu about Yisrael's religious belief at the time of Yisrael's termination because, had Chukwu known about the religious conflict, he would not have consented to the discharge. The jury could further conclude that Stafford later lied to Chukwu when he said that Yisrael had never informed him of his religious conflict with working on Saturdays.<16> This Court's en banc decision in EEOC v. Ithaca, 849 F.2d 116, is closely analogous to this case. There, this Court rejected the district court's conclusion that an employee's absolute refusal to work on his Sabbath was unreasonable on its face, and held that Ithaca Industries violated Title VII when it took no steps to provide the employee with a religious accommodation for the occasional Sunday when he was assigned to work. See Ithaca, 849 F.2d at 118-19 & n.3. Reversing the district court here would also be consistent with this Court's recent decision in Firestone, 515 F.3d 307, in which this Court ruled that Firestone's numerous efforts to accommodate an employee's extensive need for time off satisfied Title VII's religious accommodation requirement. In particular, Firestone undertook a number of different steps to accommodate the religious need of the plaintiff, David Wise, for time off. The supervisor reviewed shift schedules on a weekly basis to determine if Wise's schedule could be adjusted and, whenever possible, reassigned Wise to a shift that did not conflict with his Sabbath. Id. at 311, 316. Firestone also had generous leave and shift-swap policies, available to all employees, that Wise could use to cover many of his religious scheduling conflicts. Finally, the company adjusted its leave policies to permit Wise, for example, to use vacation days in half-day increments. Id. at 315-16. Furthermore, the frequency of the employee's religious conflict was far more extensive in Firestone, placing a far greater burden on the employer to accommodate Wise's religious beliefs. Firestone ran its production operation 24 hours a day, Monday through Friday, with frequent weekend overtime which, during 2002, was "nearly every Saturday." 515 F.3d at 310, 318. Wise worked in a quality control position that had to be filled whenever the plant was in operation, and in 2002 he was assigned the 3:00 p.m. to 11:00 p.m. shift. Wise's Sabbath work restriction ran from sundown on Friday to sundown on Saturday, conflicting with at least half of each Friday of Wise's regular weekly schedule every single week and, in addition, with his frequently-scheduled Saturday overtimes. Id. at 309-10. Wise's religious beliefs also barred work on more than a dozen other religious holy days per year that fell during the regular work week. Thus, Wise's religious work restrictions, which the Fourth Circuit characterized as "an extraordinary number of hours," see id. at 319, imposed a far greater impact on Firestone's production operations than Yisrael's unavailability to drive a dump truck on Thompson's occasional make-up Saturdays, particularly given the number of independent trucks that Thompson frequently hired even when all its drivers were present. This Court held that, under the circumstances, the steps taken by Firestone, including the supervisor's "weekly review of the work schedule, and particularly [his] willingness to alter Wise's shift when possible, demonstrates that Firestone 'actively attempt[ed] to accommodate [Wise's] religious' observances." Id. at 316 (quoting Chalmers, 101 F.3d at 1018). The Court reasoned that "[b]ecause of the magnitude of the accommodation sought, and the sheer number of hours a small group of coworkers would have been forced to cover, it was sensible for Firestone to believe that Wise's proposed accommodation [to have unlimited unpaid leave to cover his absences beyond those he could cover with paid leave and shift swaps] was not a reasonable one." Id. at 318-19. Thompson, in contrast, took no steps to accommodate the far less extensive and burdensome requirements of Yisrael's Sabbath observance, which conflicted with only one Saturday in the twelve weeks of Yisrael's first period of employment with Thompson, and only three Saturdays in the eleven weeks of his second period of employment. And, in contrast to the specific evidence Firestone presented of its need to have its testing laboratory, where Wise worked, staffed whenever the plant was in operation, Thompson presented no evidence that Yisrael's absence actually made any difference in its costs, the timeliness of project completion, or any other relevant factor. Thus, the record evidence would more than permit a reasonable jury to conclude that honoring Yisrael's request not to work on the occasional make-up Saturday was a reasonable accommodation of Yisrael's religious beliefs and that Thompson failed to demonstrate that accommodating Yisrael in this manner would have imposed an undue hardship on the conduct of its business. In contrast to this Court's analysis in Ithaca and Firestone of whether the employer made any effort to accommodate the employee's religious practice, the district court in this case improperly focused, instead, on whether Thompson offered a nondiscriminatory reason for terminating Yisrael. See JA485 (Order at 2) (concluding discharge "was related solely to performance" and was "justified" based on Yisrael's "performance, the accident with a company truck, and random and unauthorized absence from work").<17> It is no answer to a failure to accommodate claim that the employee was terminated because he could not perform a job duty due to a religious conflict. Title VII requires employers to accommodate religious observances and beliefs by, among other things, refraining from disciplining an employee when a religious belief conflicts with a workplace requirement like working on Saturdays, unless the employer demonstrates that accommodating the employee would cause undue hardship to the conduct of the employer's business. The district court improperly failed to undertake this analysis here. If it had, the court would have denied summary judgment because a reasonable jury would not be compelled, on this record, to find that Thompson demonstrated as a matter of law that accommodating Yisrael's religious belief would have caused it undue hardship. CONCLUSION For all of the foregoing reasons, we respectfully urge this Court to reverse the district court's order granting Thompson's motion for 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 an important question of what constitutes a sufficient basis for an employer, on summary judgment, to satisfy its statutory burden of demonstrating undue hardship on the conduct of its business where an employee requests a religious accommodation of not working on the employee's Sabbath. The resolution of this issue here depends on several fact-intensive issues, and the Commission believes that oral argument would assist the Court in its resolution of the questions presented and serve to highlight the existence of genuine issues of material fact precluding summary judgment in Thompson's favor. Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel _____________________________ SUSAN R. OXFORD Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Washington, D.C. 20507 Tel (202) 663-4791; Fax (202) 663-7090 susan.oxford@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 9,504 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. Susan R. Oxford Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4791 susan.oxford@eeoc.gov Dated: August 29, 2008 CERTIFICATE OF SERVICE I, Susan R. Oxford, hereby certify that I filed an original and eight copies of the Appellant EEOC's Opening Brief with this Court on August 29, 2008, by Federal Express, postage pre-paid, and served two copies of said brief on the same date by the same means on counsel for Thompson Contracting at: Michael C. Lord, Esq. Kimberly D. Bartman, Esq. WILLIAMS MULLEN 3200 Beechleaf Court, Suite 500 Raleigh, North Carolina 27604 Susan R. Oxford Attorney EEOC, Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4791 susan.oxford@eeoc.gov *********************************************************************** <> <1> "R." refers to the district court docket number for the document in question. "JA" refers to the parties' Joint Appendix filed with the EEOC's opening brief. <2> According to Thompson's employee handbook: "A typical workday is 7:00 a.m. to 5:30 p.m. Employees may be required to work Saturdays or overtime as necessary at the Company's discretion." JA407 (Employee Handbook). <3> See JA306 (Defendant's Supplemental and Amended Response to Plaintiff's Interrogatory #2). During Yisrael's second period of employment at Thompson, Lowe was responsible for securing dump truck drivers when needed for Saturday work. JA81-83 (Lowe Dep. 31:20-25, 33:3-34:19). <4> For example, during the ten-week period from December 16, 2004, through February 23, 2005, Thompson hired a total of 137 dump trucks on 17 different days at a total cost of more than $53,500. See JA332-47 (Woodell Transport Invoices). <5> Thompson did not discipline Yisrael as a result of this absence, and Yisrael said that his conversation with Stafford left him hopeful that "maybe it wasn't going to be a problem." JA235-36 (Yisrael Dep. 98:10-99:3). <6> Stafford said he did not recall asking Yisrael to complete a second job application. JA129 (Stafford Dep. 56:13-15) see also JA32 (Stafford Aff. ¶ 4) (new application not always required if personal information unchanged). In addition to Yisrael's testimony that he did complete a new job application, which he says he handed to Stafford, JA250 (Yisrael Dep. 123:24-25), another Thompson employee, Jerome Ragland, also testified that he submitted a new job application each time Thompson rehired him, even though none of his personal information had changed. JA102-03 (Ragland Dep. 29:15-30:17). <7> Yisrael attested that he told Stafford, "I can't work because Saturdays are my Sabbath days in my religious belief," and Stafford responded, "We've been through this before." JA255-57 (Yisrael Dep. 133:19-135:8). <8> Chukwu, Thompson's EEO Officer, confirmed that the "unsatisfactory job performance" referenced in Yisrael's termination notice related to his attendance. JA44-46 (Chukwu Dep. 54, 58, 68). In its first answers to the EEOC's interrogatories, Thompson stated that it discharged Yisrael because he "refused to work on a requested Saturday." See JA300 (Def.'s First Ans. to Interrog. 14). Lowe had not heard any other reason for Yisrael's discharge, other than his refusal to work on Saturdays. See JA97 (Lowe Dep. 68:10-12). <9> Thompson misapprehended the elements of a prima facie case when it argued below that the Commission could not establish a prima facie case because the EEOC "cannot demonstrate that Thompson could have reasonably accommodated Mr. Yisrael's religious belief by exempting him from all Saturday work." See R.26 (Def.'s SJ Mem.) at 13-14. Rather, Thompson stated its own burden, once a prima facie case is established: to prove either that it accommodated the conflict or that doing so would cause undue hardship. See Firestone, 515 F.3d at 312; Chalmers, 101 F.3d at 1019. <10> Stafford estimated that a company dump truck cost roughly half what it costs to hire a private truck. He stated that when a company truck "is sitting on my yard," not only did he have to pay more for a "contract truck," he also "los[t] revenue from my truck that's paid for." JA149 (Stafford Dep. 114:12-20). <11> Stafford explained that the independent dump trucks, ranging in size from two to five axles, cost more in part because they were larger than Thompson's own dump trucks. JA151, 188 (Stafford Dep. 116:3-9, 210:1-10). Thompson offered no evidence, however, concerning the precise magnitude of difference. <12> Suppose, for example, each independent contractor truck had twice the carrying capacity of a Thompson dump truck and that a particular Saturday job required the carrying capacity of all four of Thompson's working trucks plus four-and-a-half additional, independent contractor trucks. In that situation, Yisrael's absence would have actually saved the company money because if Yisrael had worked, Thompson would have been obligated to pay fully for the fifth independent truck and its driver-even though it would have been used only to half-capacity- whereas Yisrael's absence would have saved Thompson the cost of his daily pay while still achieving the carrying capacity needed that day. <13> Lowe said that when Yisrael first indicated his religion did not allow him to work on Saturday, Lowe "did not have a problem with it" and "just went to another truck driver." JA88 (Lowe Dep. 47). Lowe further explained that if he had seen the letter from Yisrael's pastor verifying the religious restriction, Lowe would not have continued asking Yisrael to work on Saturday, and he believed he would have been able to work around Yisrael's religious conflict. JA97-98 (id. at 68, 70). <14> For instance, one of the proffered substitutes was paid $1 per hour more than Parker. See JA105 (Ragland Dep. 39:3-15). If the Saturday work constituted overtime, his pay would have been $1.50 per hour more than Parker's overtime pay rate. <15> Even if Thompson paid these employees their regular rate of pay, the additional cost could have been as little as $8 to $12 dollars per day. A reasonable jury could find such a cost de minimis, particularly considering that Thompson spent over $2,000 hiring a dozen or more extra trucks on each of the two Saturdays for which Yisrael was disciplined. A reasonable jury could conclude that this total difference in pay for an occasional Saturday substitute simply does not constitute "undue hardship" on the conduct of Thompson's business. Cf. Redmond v. GAF Corp., 574 F.2d 897, 904 (7th Cir. 1978) ("To pay replacement employees premium wages would not impose a cost on the defendant, for the regular warehouse employees were already receiving premium wages for their Saturday work."). <16> Stafford's misrepresentation to Chukwu that he did not know Yisrael had a religious conflict led Chukwu to draft a response to the state Employment Security Commission (ESC) concerning Yisrael's unemployment benefits, which Stafford initialed, stating: "Employer was not informed of the claimant religious practices prior and/or during employment period." JA51-53 (Chukwu Dep. 78:8-80:3); JA329 (Thompson's Letter to ESC). Stafford admitted that this statement is inaccurate and said that initialing the document was a "mistake" on his part. JA168-69 (Stafford Dep. 149:4-150:8). A jury could conclude, however, that Stafford was not simply mistaken, but intentionally misled Chukwu concerning his knowledge of Yisrael's religious conflict. <17> Thompson's belated reliance on Yisrael's accidental damage to the truck fender cannot serve as a basis to affirm summary judgment. The summary judgment record presents a disputed issue of fact as to whether damage to the dump truck played any role at all in Stafford's decision to discharge Yisrael. Specifically, Stafford's contemporaneous statement to Yisrael, the statement on the termination notice, the deposition testimony of Chukwu and Lowe, and Thompson's original answers to interrogatories all give Yisrael's absences from work as the reason for Yisrael's termination. Thompson did not claim "damage to the dump truck" as a reason until its supplemental and amended answers to interrogatories, which Thompson served on the last day of discovery. Compare JA300 (Def.'s initial response to Pl.'s Interrogatory #14) with JA310 (Def.'s 1/16/07 Supplemental Response to Interrogatory #14); JA17 (R.8-Order requiring completion of discovery by January 15, 2007); see also discussion at page 11 & n.8, supra. Thompson's reference to the truck damage is suspect not only because Thompson first asserted it late in discovery and did not mention it at the time of discharge, but also because the evidence indicates that damage of this nature was common and not considered a basis for termination. See JA93-94 (Lowe Dep. 62-63); see also JA71, 106-07 (Ragland Dep. 46-47; Lockley Dep. 35). On this record, a jury could find that "damage to the truck" was merely a post hoc rationalization that did not motivate Stafford at the time. See EEOC v. Sears Roebuck & Co., 243 F.3d 846, 853 (4th Cir. 2001) (factfinder could infer from late appearance of defendant's current justification "that it is a post-hoc rationale...invented for the purposes of litigation"); cf. Andrews v. Va. Union Univ., Civ. No. 07-cv-447, 2008 WL 2096964, *8-9 (E.D. Va. 5/6/08) (denying summary judgment on religious reasonable accommodation claim where defendant only belatedly asserted that it had tried to accommodate plaintiff, and offered no evidence that actually providing an accommodation would have resulted in undue hardship) (unpub.).