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) __________________________________________________________________ REPLY BRIEF of APPELLANT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION __________________________________________________________________ RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS EQUAL EMPLOYMENT Assistant General Counsel OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7010 SUSAN R. OXFORD Washington, DC 20507 Attorney (202) 663-4791; Fax: (202) 663-7090 TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. The EEOC established a prima facie case of Thompson's failure to accommodate Yisrael's religious beliefs. . . . . . . . . . . . . . . 3 B. The record belies any notion that Thompson offered Yisrael any reasonable accommodation or that Yisrael failed to take advantage of any "available" accommodations.. . . . . . . . . . 10 C. Thompson fails to demonstrate that, on this record, a reasonable jury would be compelled to conclude that exempting Yisrael from Saturday work would have imposed an undue hardship on the conduct of Thompson's business. . . . . . . . . . . . . . . 14 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 29 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases page Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986)...........................13 Aron v. Quest Diagnostics, Civ. No. 03-cv-2581, 2005 WL 1541060 (D.N.J. June 30, 2005), aff'd, No.05-3500, 174 Fed.Appx. 82 (3d Cir. Apr. 3, 2006) (unpub.)................................27 Brener v. Diagnostic Ctr. Hosp., 671 F.2d 141 (5th Cir. 1982)...................14 Cook v. Chrysler Corp., 981 F.2d 336 (8th Cir. 1979) ...........................15 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).........4, 5, 11, 25 EEOC v. Ithaca Indus., Inc., 849 F.2d 116 (4th Cir. 1988) (en banc) ............24 Heller v. EBB Auto Co., 8 F.3d 1433 (9th Cir. 1993).............................14 Howard v. Life Care Cen. of Am., No. 06-cv-276, 2007 WL 5123585 (M.D. Fla. Oct. 26, 2007) (unpub.)..............................12 Marra v. Phila. Housing Auth., 597 F.3d 286 (3d Cir. 2007)..................... 23 Noesen v. Medical Staffing Network, No. 06-2831, 232 Fed.Appx. 581, 584-85 (7th Cir. Apr. 25, 2007) (unpub.) ................27 Redmond v. GAF Corp., 574 F.2d 897 (7th Cir. 1978) ...14 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000)..................23 Rodriguez v. City of Chicago, 156 F.3d 771 (7th Cir. 1998)......................24 TWA v. Hardison, 432 U.S. 63 (1977) ............................................15 Wallace & Gale Co., In re, 385 F.3d 820 (4th Cir. 2004) ....................10, 19 Weber v. Roadway Express, 199 F.3d 270 (5th Cir. 2000)..........................27 Williams v. So. Union Gas Co., 529 F.2d 483 (10th Cir. 1976) ...................16 Wisner v. Truck Cent., 784 F.2d 1571 (11th Cir. 1986)...........................17 Wright v. Runyon, 2 F.3d 214 (7th Cir. 1993) ...................................25 Statutes 42 U.S.C. § 2000e-2(m)........................................................4, 9 Regulations 29 C.F.R. § 1605.2(d)(1)(iii) ..................................................25 Rules Fed. R. Evid. 608(b) ...........................................................23 INTRODUCTION In our opening brief, the Equal Employment Opportunity Commission (EEOC or Commission) explained that the district court erred in granting summary judgment to defendant Thompson Contracting. We argued that the EEOC's evidence establishes a prima facie case of failure to accommodate under Title VII of the Civil Rights Act of 1964 and, thus, Thompson Contracting bears the burden of proving that reasonably accommodating Banayah Yisrael's religious practice of not working on Saturday would have caused undue hardship on the conduct of Thompson's business. Given this burden of proof, Thompson can prevail on summary judgment only by demonstrating that, assuming the EEOC's facts are true, a reasonable jury would be compelled to find that accommodating Yisrael would have caused Thompson "undue hardship." Thompson has not met this burden. Regardless of whether Thompson has presented facts from which a jury could find that Thompson established "undue hardship" by a preponderance of the evidence, the summary judgment record contains sufficient facts from which a reasonable jury could conclude the opposite-that Thompson could have accommodated Yisrael's Sabbath observance without undue hardship. Therefore, the district court erred in granting summary judgment. Thompson offers several arguments in response. Thompson argues, first, that the EEOC has not established a prima facie case because the evidence shows Thompson discharged Yisrael for reasons unrelated to his religious beliefs. See Thompson Brf. 21-22. Alternatively, Thompson argues that it offered Yisrael a reasonable accommodation that Yisrael failed to utilize. See id. at 23-26. Thompson additionally argues that the only accommodation that would have resolved Yisrael's workplace conflict-excusing Yisrael from working on the occasional Saturday when Thompson asked its dump truck drivers to work-would have imposed an undue hardship on Thompson. See id. at 28-41. Finally, Thompson argues that Yisrael would have rejected an offer of transfer to a different position, id. at 39-40, and that accommodating Yisrael's religious beliefs by seeking a voluntary substitute from within Thompson's workforce would have unlawfully "impose[d] Yisrael's beliefs on his co-workers." Id. at 41-45. These arguments are either unsupported by the factual record, at odds with the relevant legal precedent, or both. Since, on this record, a reasonable jury would not have to find that Thompson proved, by a preponderance of the evidence, that accommodating Yisrael would have imposed an undue hardship on the conduct of its business, this Court should reject Thompson's arguments and reverse the district court's decision. ARGUMENT A. The EEOC established a prima facie case of Thompson's failure to accommodate Yisrael's religious beliefs. There is no merit to Thompson's argument that the EEOC failed to establish a prima facie case of failure to accommodate in violation of Title VII. Thompson and the EEOC agree on the elements of such a prima facie case: (1) the employee holds a sincere religious belief that conflicts with a workplace requirement; (2) the employee informed the employer of the religious belief; and (3) the employer disciplined the employee for failing to comply with the conflicting workplace requirement. Compare Thompson Brf. 21 with EEOC's Opening Brf. 18 (both citing EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307, 312 (4th Cir. 2008)). Thompson concedes that the EEOC established a prima facie case with respect to the three-day suspension Thompson imposed on Yisrael after he told his supervisor he was unable to work on Saturday, December 18, 2004, because of his religious beliefs. See Thompson Brf. 20 n.16. Thompson contends that, with respect to its subsequent decision to discharge Yisrael, "the EEOC fails at the third prong of the [prima facie] analysis" because "[t]here is no evidentiary support linking Yisrael's religious beliefs and Thompson's decision to end the employment relationship." Id. at 21, 22. To the contrary, as we explained in our opening brief, see EEOC Brf. 19-20, there is compelling evidence that Thompson discharged Yisrael because of Yisrael's unwillingness to compromise his religious beliefs when Thompson asked him to work one Saturday in December and one Saturday in February, and there is no contemporaneous evidence that any other consideration entered into this decision. Thus, irrespective of whether a jury might ultimately believe Thompson's belated contention that additional considerations also played a role, there is ample evidence from which a reasonable jury could conclude that Yisrael's inability to work on Saturdays because of his religious beliefs was a "motivating factor," if not the primary motivation, for Thompson's decision to end Yisrael's employment when it did. See 42 U.S.C. 2000e-2(m). The 1991 amendments to Title VII specify that "an unlawful employment practice is established when the complaining party demonstrates that . . . religion . . . was a motivating factor for any employment practice, even though other factors also motivated the practice." See 42 U.S.C. § 2000e-2(m). Consequently, the EEOC need not demonstrate that no other factors entered into Stafford's decision, but only that Yisrael's inability to work on Saturdays was one of the motivating reasons. On this record, a jury could easily find that Thompson discharged Yisrael, at least in part, because he would not work on Saturdays. Since Thompson was aware that Yisrael's inability to work on Saturdays was based on his sincere religious beliefs, Thompson's discharge of Yisrael based on his Saturday absences was, necessarily, because of Yisrael's religious conflict. Cf. EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1575 (7th Cir. 1997) (whether decision to require employee to work on religious holiday was supported by legitimate business concerns goes to issue of undue hardship, not whether prima facie case is shown). Specifically, when Lowe asked Yisrael on Friday, December 17, to work the next day, Yisrael explained he had a religious conflict with Saturday work, just as he had explained to Stafford and Lowe, two weeks earlier, when he declined to work on Saturday, December 4. The resulting December 20 disciplinary notice, imposing a three-day suspension, claimed Yisrael "did not show up or call in" for work on December 18 and warned the "next infraction will result in termination." JA324 (Employee Warning Notice dated 12/20/04). This warning was no empty threat. When Thompson next asked Yisrael and the other dump truck drivers to work on a Saturday (February 12-approximately eight weeks later), Yisrael again said he could not work on Saturday because of his religious beliefs, and Stafford discharged him the next business day. See JA325 (Termination Notice dated 2/15/05). The termination notice states Yisrael was discharged "because of unsatisfactory job performance," explained as a lack of "regular, dependable attendance" during the 90-day "probationary/introductory" period. Id. Yisrael had been absent four times, three of which were due to Sabbath observance. He was suspended and then ultimately terminated due to these absences under Thompson's policy of progressive discipline. This, alone, is sufficient to demonstrate the third element of the prima facie case, as a reasonable jury could conclude that Yisrael's inability to work on Saturdays because of his religion necessarily formed the basis for Thompson's assertion that Yisrael lacked "regular, dependable attendance," which was the reason the termination notice gave for Yisrael's "unsatisfactory job performance."<1> Furthermore, as we noted in our opening brief, see EEOC Brf. 11-12 & n.8, the record contains additional evidence to that effect. First, the witnesses all agree that Yisrael's attendance was the stated reason at the time he was discharged. In his deposition, Yisrael said Stafford told him he was being terminated "because my religious schedule conflicted with the company's work schedule." JA278 (Yisrael Dep. 179). Stafford, in his deposition, concurred that he discharged Yisrael because he would not work on Saturdays, 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).<2> Thompson's Equal Employment Opportunity (EEO) Officer, Joe Chukwu, attested that Stafford discharged Yisrael because he was "undependable" due to poor attendance. JA44- 45 (Chukwu Dep. 54, 58). A jury could reasonably conclude that this "undependable attendance" was Yisrael's inability to work on Saturdays. Yisrael's immediate supervisor, Michael Lowe, who supervised Yisrael and was responsible for obtaining dump truck drivers for Saturday work days, confirmed this, as well. Following a colloquy concerning Yisrael's inability to work on Saturdays because of his religion, JA95-97 (Lowe Dep. 66:1-68:6), Lowe attested that he had not heard any other reason given for Yisrael's discharge. JA97 (Lowe Dep. 68:10-12). This reason is also reflected in Thompson's focus on Yisrael's attendance in its response to the discrimination charge Yisrael filed with the EEOC. See JA330. Thompson told the EEOC that Yisrael was terminated "because of unsatisfactory job performance." Id. (stating Yisrael's "job performance was below the expected standard"). The only specific deficiency Thompson offered, however, was that during the probationary period, Yisrael "has not had regular, dependable attendance." Id. Moreover, the EEOC asked Thompson, during discovery, to "[d]escribe in detail each and every reason why [Yisrael] was terminated from his employment with [Thompson] on or around February 15, 2005." See JA300 (R.30-10 at p.7, Interrogatory No. 14). Thompson responded that it "terminated [Yisrael's] employment because [Yisrael] refused to work on a requested Saturday and to allow him not to work Saturdays would have imposed an undue hardship on Thompson." See id. Although Thompson's answer also referred generally to "documents produced with Thompson's Initial Mandatory Disclosures" which, Thompson asserted, "speak for themselves as to the reasons for [Yisrael's] termination of employment," see id., the only document in Thompson's initial disclosures that addressed Yisrael's discharge was the February 15 Termination Notice which, as noted above, focused on Yisrael's attendance. Thus, a reasonable jury could find, from Thompson's failure to specify any factor other than Saturday attendance, that Thompson discharged Yisrael because of his religious conflict with Saturday work. Thompson suggests that Stafford was also motivated to discharge Yisrael because of his alleged "lack of commitment to his work," his "unprofessional attitude," and his "unwillingness to work as a team player." See Thompson Brf. 22 (citing JA85-86, 89-90).<3> In discovery, Thompson belatedly asserted that it also discharged Yisrael because he allegedly failed to give Thompson advance notice of his absences and accidentally damaged one of its dump trucks in mid-January. See JA310 (Thompson's Supplemental Answer to EEOC's Interrogatory #14). Even if a jury believed these assertions (and, as explained below, it need not), it could still find Thompson violated Title VII. At no time has Thompson argued that Yisrael's absences played no role in his discharge. Rather, Thompson simply argues that these are additional reasons. See Thompson Brf. 22; JA310. As noted above, Title VII expressly provides that "an unlawful employment practice is established" when an employee demonstrates that "religion . . . was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m). Thus, Thompson's assertion of additional reasons does not dispel the undisputed fact that Thompson admits it discharged Yisrael, at least in part, because of his absences (most of which were due to Yisrael's religious conflict). This is all the EEOC needs to demonstrate in order to establish a prima facie case and defeat summary judgment on this ground.<4> B. The record belies any notion that Thompson offered Yisrael any reasonable accommodation or that Yisrael failed to take advantage of any "available" accommodations. Thompson did not argue below, as it does now, that the company actually provided Yisrael with reasonable accommodations that Yisrael failed to utilize. Compare Thompson Brf. 23-27 with R.26; see EEOC Brf. 21. By not asserting this below, Thompson has waived this argument, and it is not properly before this Court. See In re Wallace & Gale Co., 385 F.3d 820, 835 (4th Cir. 2004). We address it, nevertheless, to show that this argument is patently without merit. Thompson claims, first, that it offers its employees "paid personal leave that could be used for religious observances." Id. at 24. Thompson candidly admits, however, that "Yisrael, as a probationary employee, was not yet in a position to take advantage of these leave policies." Id. (citing JA407-excerpt from Thompson's Employee Handbook). Clearly, an accommodation that is not even available to Yisrael cannot satisfy Thompson's obligation, under Title VII, to accommodate Yisrael's religious conflict absent undue hardship. Cf. Ilona of Hungary, 108 F.3d at 1576 (offered accommodation must address the actual conflict between employment requirement and religious practice). Thompson also claims that it "permits employees to swap shifts as it has done for [Ivan] Larios over the past six years." Thompson Brf. 24 (citing JA56-62 (Larios Dep.); JA175-76 (Stafford Dep.)). This assertion is simply without merit.<5> Larios is a Seventh Day Adventist who, like Yisrael, believes his religion requires him to observe a Saturday Sabbath by refraining from work. Thompson has accommodated Larios's Saturday Sabbath observance since the company hired him as a machine operator in April 2001, but not through "shift swaps." See EEOC Brf. 12-13. As Larios explained, when asked to work on a Saturday, he would simply tell the foreman "I do not work on Saturdays because of my religion," with no repercussions and without needing to "swap shifts" with any other employee. JA59 (Larios Dep. 16:18-23). Thompson accommodated Larios's Sabbath observance by simply excusing him from working on Saturdays, an accommodation Thompson did not offer Yisrael. Thompson disingenuously asserts that it accommodated Yisrael by "not schedul[ing] Yisrael to work every Saturday." See Thompson Brf. 25. This was not an accommodation; it simply reflects the fact that most weeks, Thompson did not schedule Saturday work for any of its dump truck drivers.<6> Thompson criticizes Yisrael for not making an effort to find a substitute driver the three times Thompson asked Yisrael to work on a Saturday. See Thompson Brf. 26. This criticism is unavailing. Yisrael could not have known whether a replacement driver was actually needed on any of those occasions-only Thompson would know that. Indeed, Thompson apparently did not need a replacement for Yisrael on Saturday, December 4, as it hired no independent trucks that day. See EEOC Brf. 7. When Thompson asked Yisrael to work on December 18 and February 12, Yisrael could not have known whether the situation was any different than on December 4. Furthermore, Thompson offers no indication of how Yisrael might have secured a substitute. Yisrael had no means of communicating with Thompson's 200 general equipment operators and no knowledge of who had the requisite commercial driver's license (CDL) and whether Thompson would find them acceptable drivers. Thompson, on the other hand, had the means to inquire whether there was anyone with a CDL who would be a suitable substitute driver. Thompson's managers could have posted a notice seeking a driver or sent word out to the workforce through the various foremen that a substitute driver was sought. Although both an employee and an employer have a duty to engage in "bilateral cooperation" when an employer is attempting to accommodate a religious conflict, it is the employer's burden to provide an accommodation, and an employer cannot abdicate that duty by shifting it to the employee, as Thompson seems to suggest. See Thompson Brf. 26 (citing Firestone, 515 F.3d at 316).<7> C. Thompson fails to demonstrate that, on this record, a reasonable jury would be compelled to conclude that exempting Yisrael from Saturday work would have imposed an undue hardship on the conduct of Thompson's business. Given the evidence establishing a prima facie case and Thompson's failure to offer any accommodation, the real issue on appeal is whether Thompson has met its burden of proving the defense of undue hardship. As we noted above and in our opening brief, Thompson is entitled to summary judgment on this issue only if, considering the record as a whole and crediting the EEOC's evidence, a reasonable jury could only find that excusing Yisrael from working on Saturdays would have imposed an undue hardship on the conduct of Thompson's business. See EEOC Brf. 16-17. Here, a reasonable jury could conclude otherwise. See id. 21-35. In its response brief, Thompson asserts that an employer's statutory burden to demonstrate "undue hardship" under Title VII is a "light burden" that it has met. Thompson Brf. 28 (arguing that EEOC seeks to "heighten Thompson's burden of proof"), 33-45. It is true, as Thompson argues, that "undue hardship" is established if a religious accommodation would require an employer to bear "more than a de minimis cost," see TWA v. Hardison, 432 U.S. 63, 84 (1977), and that an employer can meet its burden of proving undue hardship without first offering the accommodation and experiencing the undue hardship. Moreover, we agree with Thompson that an employer is not required to show the specific monetary cost of providing an accommodation in order to demonstrate undue hardship. See Thompson Brf. 28. As we explained in our opening brief, however, to satisfy the Hardison standard, an employer must offer at least some actual evidence that the accommodation would impose additional costs, and that evidence cannot be based on conjecture or speculation.<8> See EEOC Brf. 21-22. Because Thompson claims to have already experienced the hardship caused by Yisrael's unavailability, Thompson easily should have been able to present evidence, even if not quantified precisely, of the additional expense or difficulty caused by Yisrael's absence on those three occasions. Thompson made no such showing here. Thompson presented no evidence of additional expense or difficulty specifically related to Yisrael's absence. Thompson argues that it implemented the Saturday work requirement for the sole purpose of addressing its "business needs" which require it to have its CDL drivers available for Saturday work "to meet project deadlines," and that it suffers "a lost opportunity cost" when a company-owned truck "sits idle for the day." Thompson Brf. 29-33, 38. The record, however, does not compel a finding of "undue hardship" based on either of these contentions. Cf. Williams v. So. Union Gas Co., 529 F.2d 483, 487-89 (10th Cir. 1976) (where "reasonable minds might conceivably differ," court defers to trier-of-fact's factual finding of whether undue hardship exists). Thompson's conclusory references to its "business needs" and "project deadlines" do not describe any tangible cost arising from Yisrael's Saturday absences. And Thompson's statement that it suffers an unquantified "lost opportunity cost" when one of its trucks sits idle for the day, although more to the point, is belied entirely by Thompson's own actions. Thompson did not replace Yisrael for two months after his termination. Indeed, by Thompson's own accounting, its truck sat "idle" during this time, not just for the occasional Saturday that Yisrael would have been absent, but for every working day. A jury could find Thompson's assertion of undue hardship implausible under these circumstances because, if Thompson were truly concerned about the cost of not using its truck, it would have moved more expeditiously to replace Yisrael. Thompson argues that the decision not to replace Yisrael for two months was simply a "business judgment" the EEOC should not "second guess." Thompson Brf. 32. Thompson misses the point. The EEOC is not second- guessing whether Thompson should have replaced Yisrael sooner. Rather, the EEOC, as it is perfectly entitled to do, is merely pointing out the inferences a reasonable jury could draw from Thompson's actions. A jury is entitled to assess the credibility of Thompson's claim of undue hardship from "lost opportunity costs" against inconsistencies between that claim and Thompson's other actions, including Thompson's failure to replace Yisrael for two months. See Wisner v. Truck Cent., 784 F.2d 1571, 1574 (11th Cir. 1986) (failure to replace employee may be circumstantial evidence that employer could have accommodated religious conflict). A jury might believe Thompson, but given Thompson's actions, a reasonable jury would not be compelled to find that Thompson established "undue hardship" on the basis of "lost opportunity costs." Thompson also argues, and we do not contest, that it costs Thompson more to hire an outside dump truck for a day than to pay one of its own drivers to drive a truck Thompson already owns. Thompson Brf. 7. Thompson has not proven by a preponderance of the evidence, however, that any cost it incurred when it hired outside trucks on December 18 or February 12 was due to Yisrael's absences. Indeed, Stafford explained that the contract trucks "can haul more," which is why "on the big dirt hauls and the stone hauls" Thompson hires contract trucks, sometimes as many as 25 to 45 a day, even when all of its own drivers are working. See JA150, 188 (Stafford Dep. 115, 210); EEOC Brf. 4-5. Thus, the mere fact that Thompson hired outside trucks on December 18 and February 12 does not, ipso facto, establish that Yisrael's Saturday absences were what caused Thompson to hire even one of the trucks Thompson utilized on those days. Thompson has offered no evidence whatsoever specifically connecting Thompson's decision to hire these contract trucks to Yisrael's absences, and a factfinder could infer that these events are simply coincidental. The closest Thompson comes to actually addressing "undue hardship" on this basis is in a footnote in its brief to this Court, where Thompson asserts that independent contractor drivers are paid by the hour and then claims, for the very first time in this litigation, that "if Yisrael had reported to work as required on a Saturday where the company hired multiple independent contractor trucks, Thompson would have saved money by not employing the services of an independent contractor truck for the entire day." See Thompson Brf. 31 n.17. This factual argument is waived on appeal, both because it was never asserted below, see In re Wallace & Gale Co., 385 F.3d at 835 and because there is nothing in the record to support this assertion. Thompson's only citation to the summary judgment record is an invoice from Woodell Transport, see id. (citing JA333), which lists the trucks Thompson hired on various days and what each one cost. The invoices indicate Woodell billed Thompson by "quantity," but do not indicate whether "quantity" measures time, weight, or something else. See JA332-47. Significantly, nothing in these invoices indicates that Thompson might not have needed a particular Woodell truck for the entire day if Yisrael had worked, and Thompson offers no other record cite to support this novel claim. The absence of factual support on this point is crucial, because Thompson's claim that Yisrael's Saturday absences forced it to hire an independent contractor truck for more hours than it would otherwise have needed is not self-evident. Rather, the Woodell invoices reveal that Thompson hired a wide variety of Woodell trucks on many occasions, completely unrelated to Yisrael's two Saturday absences.<9> During the week preceding Saturday, February 12, for instance, Thompson hired six Woodell trucks on Wednesday, February 9, nine Woodell trucks on Thursday, February 10, and five Woodell trucks on Friday, February 11, see JA338-41, 345, all days when Yisrael was working. The day after Thompson discharged Yisrael, Thompson hired 14 Woodell trucks, at a total cost of $8,329.50 for that one day. See JA341-42, 345. Without more information, and Thompson provides none, the mere fact that Thompson hired nine Woodell trucks on February 12-the same number it hired two days earlier, when Yisrael was working-does not compel a jury to conclude that Thompson's decision to hire these trucks was attributable, in any way, to Yisrael's absence that day.<10> Not only is the evidence insufficient to compel a jury to find undue hardship, in fact, the record actually contains affirmative evidence that the company could have accommodated Yisrael. Lowe, the Thompson official responsible for obtaining dump truck drivers for Saturday work, attested that had he known about the letter from Yisrael's pastor verifying his Sabbath observance, he would have ceased asking Yisrael to work on Saturdays and was confident he could have worked around Yisrael's religious conflict. See EEOC Brf. 27 (citing JA88, 97-98 (Lowe Dep. 47, 68, 70)). A reasonable jury would be entitled to believe Lowe. In its opening brief, the EEOC also argued that, even if excusing Yisrael from working as a dump truck driver on Saturdays was not feasible, Thompson improperly failed to employ potential alternative accommodations, including use of voluntary substitute drivers from within Thompson's workforce or transferring Yisrael to a general operator position, the position in which Thompson was already accommodating Larios. See EEOC Brf. 26-29. In response, Thompson argues: it would be impossible to find substitutes who had the requisite experience and commercial driver's license (CDL) and were accepted by Thompson's insurance carrier; even if such substitutes were found among the general operators, there would be a "domino effect of pulling one worker from his regular duties to cover for another;" some of the individuals the EEOC identified as possible substitutes were already driving other vehicles on February 12; and the record does not indicate definitively whether any other individuals were available and willing to work on the Saturdays Yisrael was absent. Thompson Brf. 33-38. Thompson further claims that even if substitutes were available, allowing Yisrael to be off on Saturday while others worked in his place would constitute discrimination against coworkers. Id. at 41-44. Thompson also argues that Yisrael would not have accepted a transfer if Thompson had offered him one, id. at 39-40, and that the EEOC failed to advise it, during discovery, that transfer to another position would have been a reasonable accommodation. Id. at 39 & n.23. These arguments are untenable. We note, at the outset, that Thompson's failure even to explore any of these alternatives is fatal to its claim that they would not have worked. Thompson speculates that substitutes were unavailable, but it failed to "prove" this is so and, therefore, has not met its burden of proving that accommodating Yisrael was not possible short of undue hardship. For instance, Thompson asserts that "[t]here is no evidence that Messrs. Quesenberry and Recore," two CDL drivers who were not already working on February 12, "were ready, willing and able to work" that day. See Thompson Brf. 36 n.20. Contrary to Thompson's contention, it is not the EEOC's burden to demonstrate their availability. Rather, it is Thompson's burden to prove, by a preponderance of the evidence, that it could not provide a substitute. The timecards for Shawn Recore and David Quesenberry suggest they were available to work on Saturday, February 12.<11> See JA323, 389. It is not enough for Thompson to question whether this evidence establishes that they were available; Thompson is required to establish that they, in fact, were not available. This it failed to do. Thompson claims that Stafford inquired about substitutes, see Thompson Brf. 34 (citing JA179), but a reasonable jury would be entitled to disbelieve Stafford's vague assertions on this point, given Stafford's inability to recall a single, specific individual he had considered, see JA179-84, and evidence discussed in the EEOC's opening brief that Stafford knowingly misrepresented a critical fact concerning Yisrael.<12> See Fed. R. Evid. 608(b) (witness impeachment by conduct demonstrating untruthfulness); cf. Marra v. Phila. Housing Auth., 597 F.3d 286, 306 (3d Cir. 2007) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 154 (2000)) (jury entitled to treat party's dishonesty about a material fact as evidence of culpability). In addition, although Thompson asserts that even if an equipment operator had a CDL, "Thompson does not carry the required CDL insurance for any employee except the ones who are hired to drive a CDL vehicle," Thompson Brf. 38, Stafford admitted he never checked to see if additional CDL- holders could be added to Thompson's vehicle insurance policy and, if so, whether that would entail any additional cost. JA181-83 (Stafford Dep. 196:7-198:20). Finally, there is no merit to Thompson's contention that using a qualified general operator as a substitute would have a "domino effect," Thompson Brf. 34, as Thompson admits that the large number of general operators made it possible to accommodate Larios's Saturday work restriction. See id. at 38 n.22. Thus, on this record, a reasonable jury could find that Thompson never seriously explored the possibility of using a substitute driver for the occasional Saturday when Thompson wanted its dump truck drivers to work and, therefore, Thompson simply failed to prove that accommodation through the use of substitutes was not possible.<13> Similarly, Thompson never offered Yisrael the option of transferring to a general equipment operator position, claiming Yisrael would have certainly rejected such an offer. Thompson Brf. 39-40. As we explained in our opening brief, given Yisrael's sworn statement that he would have accepted a transfer, JA349, a reasonable jury would not be compelled to accept Thompson's speculation to the contrary. See EEOC Brf. 27-29. In any case, the mere possibility that an employee might decline a particular accommodation does not justify an employer's failure to extend the offer. Title VII does not obligate Thompson to ensure that Yisrael accepts an available accommodation, but only requires Thompson to offer Yisrael a reasonable accommodation. See Rodriquez v. City of Chicago, 156 F.3d 771, 775-76 (7th Cir. 1998) (city reasonably accommodated police officer's religious belief by offering transfer to an assignment that did not present the same conflict, even though officer declined to transfer); Wright v. Runyon, 2 F.3d 214, 216-17 (7th Cir. 1993) (where existing workplace policies permitted employee to bid on several positions that did not require him to work on the Sabbath, employer satisfied duty to reasonably accommodate employee's Sabbath observance even though employee chose not to bid on any of the available positions). Thompson chastises the EEOC for failing to advise it that it could have accommodated Yisrael by giving him a transfer. Id. at 39. This argument is patently frivolous. Thompson's suggestion that the EEOC is somehow responsible for the company's failure to provide an accommodation is absurd. Title VII charges employers with responsibility to accommodate its employees' religious conflicts where possible. See Ilona of Hungary, 108 F.3d at 1576 (burden of making reasonable accommodation, or showing that any accommodation would impose undue hardship, lies with employer). Employers do not share this duty with the Commission. In any case, it is curious that Thompson would need the Commission to tell it that transfer could be a possible accommodation. Use of lateral transfers is no secret; it is a well-recognized alternative accommodation. See EEOC Brf. 26-28 (citing Ithaca, 849 F.2d at 119 & n.5; 29 C.F.R. § 605.2(d)(1)(iii)). Any diligent employer seeking to comply with the dictates of Title VII should be aware of this possible accommodation. Finally, Thompson's argument that seeking a voluntary substitute would discriminate against other employees is unavailing. Thompson Brf. 41-45. This case is wholly unlike the situation in Firestone, where "the frequency with which [the plaintiff] wanted time off" and the small number of lab employees who needed to share the "around-the-clock" lab duties led this Court to conclude that permitting the plaintiff to have part of every Friday and Saturday off, in addition to other religious holidays, would have imposed unfairly on the plaintiff's coworkers. Firestone, 515 F.3d at 317-19; see EEOC Brf. 35-38. Given that Yisrael's religious conflict arises much less frequently and Thompson has not made any efforts to ascertain if substitutes exist for these few occasions, a jury could find that Thompson has not established that accommodating Yisrael's Sabbath observance would unfairly impose on Yisrael's coworkers. Thompson goes on to speculate that "if volunteers could not be found," the company would have to deprive another employee of his or her expectation to have Saturday off. See Thompson Brf. 43. This appeal does not present any question about forcing employees to work in Yisrael's place, however. Thompson never inquired about substitutes within its workforce, so it is merely hypothesizing here that none might be found. Thompson cannot establish "undue hardship" based on this type of unfounded speculation. Firestone, 515 F.3d at 317 (considerations of undue hardship "may not be based on mere speculation or conjecture") (citation omitted). And as long as Thompson used volunteer substitutes, the situation would be unlike the cases Thompson relies on where the requested accommodations would have forced other employees to take on a greater workload. See Thompson Brf. 42-43 (citing, e.g., Weber v. Roadway Express, 199 F.3d 270, 274 (5th Cir. 2000) (rejecting proposed accommodation for distributing trucking assignments because it would unduly burden coworkers regarding compensation and time-off); Noesen v. Med. Staffing Network, No. 06-2831, 232 Fed.Appx. 581, 584-85 (7th Cir. Apr. 25, 2007) (rejecting plaintiff's proposal to be relieved of telephone and counter duties because would shift his share of initial customer contact onto other staff); Aron v. Quest Diagnostics, Civ. No. 03-cv-2581, 2005 WL 1541060 (D.N.J. June 30, 2005), *6 (relieving plaintiff from working two Saturdays per month would shift extra weekend work onto other phlebotomists), aff'd, No.05-3500, 174 Fed.Appx. 82 (3d Cir. Apr. 3, 2006).<14> In sum, the EEOC argued in its opening brief that, on the very limited and contested evidence Thompson offered below, a reasonable jury would not be compelled to find that Thompson met its burden of showing that accommodating Yisrael's religious belief and practice would have caused undue hardship to the conduct of Thompson's business. Nothing Thompson argues in response warrants a different conclusion. Thompson's arguments, at most, might suggest that a jury could find in its favor on these disputed facts, not that it must find in its favor on these facts. Accordingly, the district court erred in granting Thompson's motion for summary judgment. CONCLUSION For the foregoing reasons, we respectfully urge this Court to reverse the district court's grant of summary judgment and remand for further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel /s/ Susan R. Oxford _____________________________ 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 6,969 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. /s/ Susan R. Oxford 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: November 21, 2008 CERTIFICATE OF SERVICE I, Susan R. Oxford, hereby certify that I filed an original and eight copies of the Appellant EEOC's Reply Brief with this Court on November 21, 2008, by Federal Express, postage pre-paid, and served two copies of said Reply 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 /s/ Susan R. Oxford 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> Indeed, Thompson concedes that a prima facie case of discrimination exists as to the three-day suspension imposed on Yisrael for not working on Saturday December 18. Thompson Brf. 20 n.16. Yisrael's discharge on February 15 was the next step in Thompson's progressive discipline, and it immediately followed the same type of alleged infraction (failure to work on a Saturday). <2> According to Thompson, Stafford "denies" ever telling Yisrael he was discharging him "because [his] religious schedule conflicted with the company's work schedule," claiming, instead, that "Yisrael's discharge 'had nothing to do with [his] religious beliefs.'" See Thompson Brf. 16-17 (citing JA170). A jury could reject this assertion, however, as it is contradicted by Stafford's own admissions that he discharged Yisrael because he would not work on Saturdays, and that he knew the reason Yisrael declined to work on Saturdays was because of his religion. See JA144-45, 170 (Stafford Dep. 90:1-91:9, 151). <3> These joint appendix pages are from Lowe's deposition, where he describes his perception of Yisrael's attitude on the job, not why Yisrael was discharged. <4> In any event, the record would permit a reasonable jury to reject Thompson's claim that it discharged Yisrael because he failed to give advance notice of his absences, accidentally damaged a company dump truck, and/or demonstrated a poor attitude or lack of commitment. Lowe explained that after Yisrael gave advance notice that he could not work on a particular day, he was not required to call in again on the day of his absence. See JA84 (Lowe Dep. 37). Although Stafford alluded, in his deposition, to the incident with the dump truck when explaining his decision to discharge Yisrael, see JA143 (Stafford Dep. 83:6-23), a reasonable jury could disbelieve Stafford based on Lowe's unequivocal testimony that damage to dump trucks is quite common, especially during a driver's probationary period, and the type of damage that Yisrael caused would not lead to termination of employment. JA93-94 (Lowe Dep. 62:4-63:17); see EEOC Opening Brf. 10. Finally, Thompson cites no record evidence, and we know of none, that any Thompson decisionmaker was motivated by Yisrael's alleged attitude on the job or his supposed "performance problems . . . with other employers" in deciding to discharge Yisrael. See Thompson Brf. 17. <5> The portion of the summary judgment record Thompson cites, JA56-62, 175-76, does not mention shift swapping. In fact, it is unclear what Thompson could even mean by this statement. Thompson's Employee Handbook states a "typical workday is from 7:00 a.m. to 5:30 p.m." JA407. Thompson has no "shifts" its employees could swap. <6> For example, Thompson scheduled all its drivers, including Yisrael, to work on Saturday, December 18, and Saturday, February 12, but did not schedule any of its dump truck drivers to work any of the intervening seven Saturdays. The fact that Thompson asked Yisrael to work whenever Saturday work was scheduled and then disciplined him when he did not work distinguishes this case from Howard v. Life Care Centers of America, No. 06-cv-276, 2007 WL 5123585 (M.D. Fla. Oct. 26, 2007), which Thompson mistakenly claims "is similar in all material respects." See Thompson Brf. 25. Life Care Centers provided registered nurse (RN) coverage for its residents seven days per week, and Jacquelyn Howard was one of only four RNs who shared this responsibility. For five months, Life Care Centers accommodated Howard's Sabbath work restriction by not scheduling her for any Saturday shifts. See 2007 WL 5123585, at *2-3. When Life Care Centers was unable to relieve Howard of working on a Saturday during the Christmas/New Year holidays, it provided her with significant advance notice and permission to swap shifts with one of the other three RNs. Id. at *5. These substantial accommodation efforts contrast starkly with Thompson's failure to do anything to accommodate Yisrael's Sabbath work restriction. <7> This Court used the term "bilateral cooperation" in Firestone to refer to a joint, collaborative effort "between an employer and employee in their search for a reasonable accommodation." 515 F.3d at 316 (citing Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 69 (1986)). Nothing in the record suggests Yisrael would not have engaged in a collaborative dialogue with Thompson, if Thompson had made any effort to accommodate Yisrael's religious conflict. Thompson's managers, however, never attempted such a discussion with Yisrael; Stafford simply disciplined Yisrael when he did not show up for work after Yisrael told Thompson of his religious ban against Saturday work. Thompson erroneously argues it is the employee's responsibility to identify a specific mechanism for accommodating a religious practice. See Thompson Brf. 26-27. To the contrary, once Yisrael notified Thompson that he could not work on Saturdays because of his religion, it was up to Thompson, with Yisrael's cooperation, to devise a means of accommodating Yisrael's religious practice, unless doing so would have caused Thompson undue hardship. See Heller v. EBB Auto Co., 8 F.3d 1433, 1440-41 (9th Cir. 1993); Brener v. Diagnostic Ctr. Hosp., 671 F.2d 141, 145 (5th Cir. 1982); Redmond v. GAF Corp., 574 F.2d 897, 901 (7th Cir. 1978). <8> That an employer need not quantify precisely the costs of providing an accommodation, see Thompson Brf. 28-29 (citing Cook v. Chrysler Corp., 981 F.2d 336 (8th Cir. 1979)), does not excuse the employer altogether from offering evidence of costs. The court in Cook upheld the district court's factual findings because "Chrysler presented evidence of tangible, present costs of accommodation." Cook, 981 F.2d at 339. This included, among other things, evidence that plaintiff's absence for one day every week would have necessitated hiring a second floater or, if the one existing floater was used every week to replace the plaintiff, would have caused that "floater" to be unavailable anywhere else in the plant. Chrysler also presented evidence that using a floater to replace plaintiff one day every week would result in lower efficiency on the production line because the floater would not be as familiar with the particular tasks, as well as higher repair costs from the resulting decline in product quality. Finally, Chrysler presented evidence that it would incur added costs because the plaintiff would receive the benefit package of a full-time employee even though he would be working a part-time schedule. Id. Since all of these costs were "tangible" and "present," not speculative and future, they did not have to be quantified precisely. Id. Thompson, in contrast, offered no such "tangible" or "present" costs here. <9> The invoices show Thompson hired "tri-axles," "quad-axles," "quint-axles," and "tractor trailers." See JA332-47. Thompson's witnesses said these trucks are bigger than Thompson's own dump trucks. EEOC Brf. 5, 24 & n.11. <10> The EEOC's opening brief mistakenly represented that Thompson hired twelve Woodell trucks on February 12, 2005. See EEOC Brf. 10-11. Closer examination of the invoices indicates several of the trucks Thompson used on February 12 were listed on two different invoices, making the total for February 12 nine trucks, instead of twelve. See JA338-40, 345. <11> It is possible there were additional qualified drivers among Thompson's workforce, but Stafford never asked its general equipment operators if they had CDLs, either before or after learning that Yisrael could not work Saturdays. JA181, 183-84 (Stafford Dep. 196:7-11, 198:22-199:3). <12> In his deposition, Stafford admitted that his statement to Thompson's EEO official denying Yisrael had informed him of his religious conflict was not true. See EEOC Brf. 34-35 & n.16. <13> Thompson tries to diminish the significance of this Court's admonition in EEOC v. Ithaca Indus., 849 F.2d 116 (4th Cir. 1988) (en banc), that an employer must make some effort to accommodate an employee's religious conflict, by arguing that Ithaca differs from this case because there was evidence in Ithaca of several employees who could work in the plaintiff's place. See Thompson Brf. 33- 34 n.18 (citing Ithaca, 849 F.2d at 118). Here, too, the record identifies at least two CDL holders who were apparently available on February 12. Even if Ithaca could be distinguished on this factual ground, however, that would not alter the broader legal principle that an employer bears the burden to prove it made some effort to accommodate, but that accommodation was not possible without undue hardship-a burden that, on this record, a jury could find Thompson failed to meet. <14> The other cases Thompson cited on this point are inapposite because the employer actually accommodated the religious conflict, and the language quoted by Thompson simply explained why the employer was not required to offer the plaintiff's preferred accommodation. See Thompson Brf. 43.