No. 11-1897 _____________________________________ 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 __________________________________________________________________ P. DAVID LOPEZ General Counsel SUSAN R. OXFORD CAROLYN L. WHEELER Attorney Acting Associate General Counsel 131 M Street, N.E. Washington, DC 20507 LORRAINE C. DAVIS Tel: (202) 663-4791 Assistant General Counsel susan.oxford@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . 2 A. Nature of the case and course of proceedings. . . . . . . . . 2 B. Statement of facts. . . . . . . . . . . . . . . . . . . . . 4 C. First district court opinion and first appeal. . . . . . . . .15 D. Proceedings on remand. . . . . . . . . . . . . . . . . . . . .16 E. District court decisions on remand. . . . . . . . . . . . . . 20 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . 23 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . .25 I. The district court abused its discretion by failing to strike the Hudson declaration and relying on it in granting summary judgment, after depriving the EEOC of any opportunity for supplemental discovery . . . . . . . . . . . . . . . . . . . . . . . .26 II. Summary judgment was improper because Thompson did not prove, as a matter of law, either that it accommodated Yisrael or that any reasonable accommodation would have caused undue hardship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 III. The district court erred in dismissing the EEOC’s claim for injunctive relief . . . . . . . . . . . . . . . . . . . . . . . . . . .54 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . 60 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . 62 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases page Anderson v. Gen. Dynamics Convair Aerospace Div., 589 F.2d 397 (9th Cir. 1978) . . . . . . . . . . . . . . . . . . 37 Baker v. The Home Depot, 445 F.3d 541 (2d Cir. 2006) . . . . . . . . . 53 Brinkley v. Harbour Recreation Club, 180 F.3d 598 (4th Cir. 1999), overruled in part on other grounds, Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). . . . . . . . . . . . . . . . . . . . . 26, 58 Brown v. Polk County, IA, 61 F.3d 650 (8th Cir. 1995) (en banc). . . 37 Carr v. V.S. Deeds, 453 F.3d 593 (4th Cir. 2006). . . . . . . . . 29, 35 Caskey v. Man Roland, Inc., 83 F.3d 418 (5th Cir. 1996) (unpub.). . . 35 Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012 (4th Cir. 1996). .46, 50 Doe v. Johnson, 52 F.3d 1448 (7th Cir. 1995). . . . . . . . . . . . 35 Doe v. Kidd, 501 F.3d 348 (4th Cir. 2007). . . . . . . . . . . . . . . 26 EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307 (4th Cir. 2008). . . . . . . . . 22, 36, 38, 39, passim EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569 (7th Cir. 1997). . . . . 46 EEOC v. Ithaca Indus., Inc., 849 F.2d 116 (4th Cir. 1988) (en banc). . . . . . . . 46, 47, 52, 53 EEOC v. Universal Mfg. Corp., 914 F.2d 71 (5th Cir. 1990). . . . . . 53 Howard v. Winter, 446 F.3d 559 (4th Cir. 2006). . . . . . . . . . . . 26 Hoyle v. Freightliner, LLC, 650 F.3d 321 (4th Cir. 2011). . . . . .25, 30 McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352 (1995). . . . . . . . . . . . . . . . . . . . . . . .20 Musser v. Gentiva Health Servs., 356 F.3d 751 (7th Cir. 2004) . . . . .29 Nicholas v. Wyndham Int’l, Inc., 373 F.3d 537 (4th Cir. 2004) . . . . .25 Noel v. Artson, 297 Fed.Appx. 216 (4th Cir. 2008) (unpub.) . . . . . . 59 Roberts v. Galen of Va., Inc., 325 F.3d 776 (6th Cir. 2003) . . . . . .29 Rodriguez v. City of Chicago, 156 F.3d 771 (7th Cir. 1998) . . . . . . 49 Sales v. Grant, 224 F.3d 293 (4th Cir. 2000). . . . . . . . . . . . 60 Shelton v. Univ. of Med. & Dentistry of NJ, 223 F.3d 220 (3d Cir. 2000). . . . . . . . . . . . . . . . . . 49 Smith v. Pyro Mining Co., 827 F.2d 1081 (6th Cir. 1987). . . . . . . . 37 Southern States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592 (4th Cir. 2003) . . . . . . . . . . . . . . . . .29, 30 Sturgill v. United Parcel Serv., Inc., 512 F.3d 1024 (8th Cir. 2008) . 53 Suarez Corp. Indus. v. McGraw, 125 F.3d 222 (4th Cir. 1997) . . . . . .59 Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481 (10th Cir. 1989) . . . . . .37 Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) . . . 41, 56 Wilson v. Bradlees of New England, Inc., 250 F.3d 10 (1st Cir. 2001). .29 Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . .29 Statutes 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Title VII of the Civil Rights Act of 1964 42 U.S.C. §§ 2000e et seq.. . . . . . . . . . . . . . . . . . 1, 2 42 U.S.C. § 2000e(j). . . . . . . . . . . . . . . . . . . . . . . . . .36 42 U.S.C. § 2000e-2(a)(1). . . . . . . . . . . . . . . . . . . . . . . 36 42 U.S.C. § 2000e-5(f)(3). . . . . . . . . . . . . . . . . . . . . . . .1 42 U.S.C. § 2000e-5(g)(1). . . . . . . . . . . . . . . . . . . . . . . 56 Regulations 29 C.F.R. § 1605.2(c)(1). . . . . . . . . . . . . . . . . . . . . . . .50 29 C.F.R. § 1605.2(d)(1)(i). . . . . . . . . . . . . . . . . . . . . 47 29 C.F.R. § 1605.2(d)(1)(iii). . . . . . . . . . . . . . . . . . . . . 49 49 C.F.R. § 40.289(b). . . . . . . . . . . . . . . . . . . . . . . . 56 Rules Fed. R. Civ. P. 8(c). . . . . . . . . . . . . . . . . . . . . . . . . .57 Fed. R. Civ. P. 26(a)(1). . . . . . . . . . . . . . . . . . 25, 27, 29 Fed. R. Civ. P. 26(c). . . . . . . . . . . . . . . . . . . . . . . . . 25 Fed. R. Civ. P. 26(e)(1)(A). . . . . . . . . . . . . . . . . . 24, 25, 29 Fed. R. Civ. P. 37(c). . . . . . . . . . . . . . . . . . . . . . . 24, 29 Fed. R. App. P. 4(a)(1). . . . . . . . . . . . . . . . . . . . . . . . 1 Miscellaneous 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1278 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . 58 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, 42 U.S.C. § 2000e et seq. The district court entered final judgment on all issues in this case on June 21, 2011. JA-1434 (R.72).<1> Pursuant to Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure, the Equal Employment Opportunity Commission (EEOC or Commission) timely filed its Notice of Appeal in the district court on August 18, 2011. JA-1435 (R.81). STATEMENT OF THE ISSUES 1. Whether the district court abused its discretion when it denied the EEOC’s motion to strike Hudson’s declaration, granted Thompson Contracting a protective order barring any EEOC discovery on the new information contained therein, and then relied on the Hudson declaration in granting Thompson summary judgment. 2. Whether the district court erred in granting summary judgment to defendant Thompson Contracting because a reasonable jury could find Thompson failed to meet its burden under Title VII either to reasonably accommodate Banayah Yisrael’s Sabbath observance or to prove that any such reasonable accommodation would have caused Thompson undue hardship. 3. Whether the district court erred in dismissing the EEOC’s claim for injunctive relief. 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., in the United States District Court for the Eastern District of North Carolina. JA-10. The complaint alleges that Thompson discriminated against Garry Parker (now known as Banayah Yisrael) 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. JA-10-12. The complaint further alleges that despite being informed of this religious conflict, Thompson suspended Parker and ultimately discharged him when he refused to work two Saturdays. Id. Discovery ended April 20, 2007. JA-25. On May 21, 2007, Thompson moved for summary judgment, JA-38, which the district court granted on March 31, 2008, concluding the EEOC’s evidence did not establish a prima facie case of religious discrimination. JA-676-678. The EEOC appealed. JA-679. On June 25, 2009, this Court reversed, ruling there was sufficient evidence for a jury to find a prima facie case of religious discrimination and remanding for a determination of whether any reasonable accommodation would have caused Thompson undue hardship. JA-681-691. On August 17, 2009, this Court issued its Mandate, JA- 692, and the district court entered it on its docket on August 24, 2009. JA-5 (district court docket entry R.49). Eight months later, the district court requested supplemental briefs and directed the EEOC to file its brief first. JA-693 (R.53, Order 5/3/2010). The EEOC reiterated its position that, based on the record evidence, Thompson had not met its burden of demonstrating undue hardship as a matter of law. R.54. Twenty days later, Thompson filed a supplemental brief in which it argued a new affirmative defense it had never before asserted—that the EEOC’s claim for injunctive relief was moot based on after-acquired evidence—and relied on additional evidence it had never before disclosed, contained in the declaration of a witness it had not identified as someone with information relevant to any claim or defense in this litigation. JA-874-905 (R.55). The EEOC moved to strike Thompson’s newly-asserted affirmative defense and newly-proffered evidence. JA-1212. The district court heard oral argument, JA-1317-1365, denied the EEOC’s motion to strike the new defense and, instead, dismissed the EEOC’s claim for injunctive relief. JA-1366-1368 (R.61, Order 10/18/2010). The court also denied the EEOC’s motion to strike the new evidence but granted the EEOC 60 days to conduct supplemental discovery and deferred ruling on Thompson’s summary judgment motion until this discovery was completed. JA-1368-1370. The EEOC served supplemental discovery on Thompson. Thompson then moved for a protective order, relying on the company president’s declaration that Thompson was experiencing financial difficulties and discovery would be burdensome. JA-1371, 1406-1408. The district court granted Thompson’s motion for a protective order and barred the EEOC from conducting any supplemental discovery. JA-1409-1413 (R.67, Order 4/4/2011). The court thereafter granted Thompson summary judgment, relying extensively on Thompson’s new evidence. JA-1420-1434 (R.71, 72, Order and Judgment 6/21/2011). Thompson’s motion seeking attorneys’ fees and bill of costs, R.73-75, R.79-80, are now pending before the district court. This appeal followed. JA-1435. B. Statement of Facts Thompson is a turn-key contractor that provides grading, paving, and utility services for commercial, residential, and Department of Transportation projects in North Carolina. JA-928-929 (Stafford Dep. 17:9-18:1). When Thompson employed Yisrael, most of the company’s 250 employees were general equipment operators not required to have a commercial driver’s license (CDL). Thompson owned five dump trucks and employed four dump truck drivers, all of whom were required to have a CDL. JA-793-794 (Stafford Aff. ¶¶ 5-7). Many of Thompson’s contracting jobs required more hauling capacity than Thompson’s own dump trucks could provide, so Thompson regularly hired additional dump trucks and drivers (“independent contractors”) to assist in its hauling operations. JA-1035-1038 (Lowe Dep. 23:14-26:8). Jim Stafford, Thompson’s Director of Operations at the time, 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.” JA-791 (Stafford Dep. 210). Stafford estimated that, because the independent contractor trucks are larger, it cost Thompson roughly twice as much to hire one as it did to operate one of Thompson’s own, smaller dump trucks. JA772, 792. Thompson’s Director of Production, Michael Lowe,<2> explained that around the time Yisrael worked for Thompson, the company hired independent contractor trucks at least two days per week and sometimes as often as every workday. JA- 1037-1038 (Lowe Dep. 25:25-26:8). The number varied, but could be as many as forty-five trucks in one day. JA-772 (Stafford Dep. 115:8-24). During the ten- week period from December 16, 2004, through February 23, 2005, Thompson used 137 independent contractor dump trucks on 17 different days at a total cost of more than $53,500. See JA-838-853 (Woodell Transport Invoices). To ensure Thompson had these trucks when needed, Stafford typically scheduled them 48 hours in advance. JA-771. All, or the vast majority, of these independent trucks came from Woodell Transport, owned by Diane Thompson (wife of Bobby Thompson, who owns Thompson Contracting). JA-812; JA-426 (Stafford Dep. 117:1-17) (independent contractor trucks supplied by Woodell Transport “90 percent of the time”). Thompson’s normal work week was Monday through Friday, with one shift per day (typically 7:00 a.m. to 5:30 p.m.). JA-864 (Employee Handbook). Thompson occasionally required its employees to work Saturdays, such as when it rained during the week or a project fell behind schedule for some other reason, id.; JA-794 (Stafford Aff. ¶¶ 8-9), but Thompson generally did not need all its employees to work these occasional Saturdays. JA-814, 965. Yisrael is a member of the Hebrew Israelite faith. As such, he has a bona fide religious belief that his faith requires him to refrain from working between sunrise and sunset on Saturday, his Sabbath, a requirement he has observed consistently since converting to the Hebrew Israelite faith in 2003. JA-695-697; JA-743 (Yisrael Aff. ¶¶ 2&3). Thompson first hired Yisrael as a dump truck driver in June 2004. JA-793 (Stafford Aff. ¶ 3). During this first period of employment, a Thompson manager asked Yisrael to work one Saturday. JA-705. Yisrael explained he could not work because it was his religious holy day, and the manager said “okay.” JA-705-706. The following Monday, Stafford asked Yisrael why he did not work on Saturday, and Yisrael told him he “couldn’t work on Saturdays because of [his] religious beliefs.” JA-708-709. Thompson did not discipline Yisrael for this absence, and Yisrael said his conversation with Stafford had left him hopeful that “maybe it wasn’t going to be a problem.” JA-709-710. Even though Thompson only asked Yisrael to work one Saturday during the twelve weeks of his first period of employment, Thompson actually scheduled work on four Saturdays. On each of the other three Saturdays, Thompson required only two dump truck drivers to work even though Thompson employed four or five dump truck drivers throughout this time. JA-589-590. Thompson terminated Yisrael’s first period of employment on September 9, 2004, after he tested positive for marijuana in a random drug test. JA-793 (Stafford Aff. ¶¶ 3-4). In late November, Yisrael reapplied. Stafford, having recently discharged Yisrael for testing positive for marijuana, asked Yisrael if he had his situation under control. JA-717. Yisrael responded “yes,” and Stafford rehired him as a dump truck driver on November 29, 2004. JA-717-718. Yisrael filled out a new job application when he reapplied in November 2004. JA-718. To avoid any confusion concerning his unavailability for work on Saturdays, Yisrael stated on his job application that he could not work on Saturdays because of his religious beliefs and handed the completed application to Stafford. JA-718-719. Although Stafford disputed receiving Yisrael’s second job application, he admitted, in his deposition, that he knew about Yisrael’s Sabbath observance from Yisrael’s first period of employment. JA-766-767. Stafford nevertheless 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, reminding Stafford he had stated this on his job application. JA-722-726.<3> Thompson’s other three dump truck drivers worked that day. See JA-911-912 (time cards for Ruby Gonzalez, Shelton Williams, & Eric Smith for 11/29-12/5). Thompson did not use any independent contractor trucks, and Yisrael received no discipline for not working that Saturday. JA-727. The following week, Yisrael told Lowe he would be absent the next day, Thursday, December 9, for an appointment with the Office of Veterans Affairs. JA-728-731. Thompson’s employee handbook requires employees to give notice of absences at least 24 hours in advance. JA-384. Stafford gave Yisrael a verbal warning for failing to give sufficient advance notice of an absence. JA-731. The next week, Lowe asked Yisrael on Friday, December 17, to work on Saturday, December 18. JA-734. Lowe was responsible for securing dump truck drivers when needed for Saturday work. JA-814-815. Yisrael told Lowe he could not work “because of my religious beliefs,” and Lowe nodded and said, “I understand.” JA-734-735, 818. Lowe later explained that when Yisrael said his religion did not allow him to work on Saturday, Lowe “[did not] have a problem with it,” he “just went to another truck driver.” JA-818. Thompson’s other three dump truck drivers worked that day, and Thompson used thirteen independent contractor trucks. See JA-914-915 (time cards for Gonzalez, Williams, & Smith for 12/13-12/19); JA-839-843 (Woodell Invoices). Stafford suspended Yisrael for three days for not working that Saturday. JA-907 (Employee Warning Notice 12/20/04). The suspension notice stated Yisrael “did not show up or call in” on December 18, stating it was “the second week in a row this has happened.” Id. Although Yisrael was disciplined, in part, for not “calling in,” Lowe explained in his deposition that when an employee told his supervisor ahead of time that he could not work on a particular day, as Yisrael did here, Thompson did not require the employee to contact his supervisor again on the morning he could not work because the supervisor was already aware of the employee’s unavailability. JA-816. 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.” JA-907. Around this time, Lowe asked Yisrael to provide a letter from his spiritual leader documenting his inability to work on Saturday. JA-738-739, 823-824. Yisrael obtained the letter within a week or two of Lowe’s request and gave it to Thompson’s receptionist. JA-740. The letter stated that Yisrael was a member in good standing of the congregation and that his “religious duties” required him “to keep all the laws of the Creator,” including not working on the Sabbath. JA-257 (Letter from House of Yisrael of Atlanta). The letter further explained that “[t]he Sabbath day begins at sunrise Saturday and concludes at sundown Saturday.” Id. Stafford acknowledged that the letter “came across [his] desk” during Yisrael’s employment, and he put it in Yisrael’s employee file. JA-768-769. Stafford did not show the letter or mention it to Lowe, even though Lowe was responsible for scheduling dump truck drivers for Saturday work. See JA-814-815, 824. 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. JA-825-826. Stafford also never showed the letter to Thompson’s Equal Employment Opportunity (EEO) Officer, Joe Chukwu, nor did Stafford consult Chukwu about how to handle Yisrael’s religious conflict. JA-832, 834-835. On Friday, February 11, 2005, Lowe again asked Yisrael to work on Saturday. Yisrael again told Lowe he could not work because Saturday was his Sabbath; Lowe again said he understood. JA-738-739. Thompson used twelve independent contractor trucks on this Saturday. JA-844-847, 851 (Woodell Invoices).<4> On Monday, February 14, no Thompson dump drivers worked because of unfavorable weather conditions. That day, Yisrael filed a charge with the EEOC claiming Thompson had failed to accommodate his religious beliefs and indicating he expected to be terminated for refusing to work on Saturdays. See JA-908 (EEOC Charge). The next morning, Stafford terminated Yisrael’s employment. JA-979 (Employee Termination Notice 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.” JA-741-742. 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.” JA-979. 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.” JA-786. Before discharging Yisrael, Stafford said nothing to Chukwu, Thompson’s EEO officer, about Yisrael’s religious conflict with Saturday work or the letter from Yisrael’s spiritual leader. Chukwu said that if he had known, prior to Yisrael’s discharge, about the religious conflict and the letter documenting it, it would have changed his reaction to Stafford’s desire to terminate Yisrael’s employment. JA-835. Chukwu learned about the religious conflict only when he received a copy of Yisrael’s EEOC charge. JA-831-832. Not only did Stafford fail to mention Yisrael’s religious conflict to Chukwu, at least twice he expressly disavowed any knowledge of Yisrael’s religious conflict when Chukwu asked Stafford about it. When Chukwu received the EEOC charge, he asked Stafford if he had known Yisrael had a religious conflict, and Stafford said he had not known. JA-833. Stafford repeated this misrepresentation when Thompson appealed Yisrael’s award of state unemployment benefits. Stafford initialed an appeal letter prepared by Chukwu stating that Thompson had no knowledge of Yisrael’s religious conflict during his employment, a statement Stafford later admitted was incorrect. JA-784-785, 836-837. The EEOC filed suit, alleging Thompson unlawfully failed to accommodate Yisrael’s religious beliefs. JA-10. During discovery, the EEOC learned that, in addition to Thompson’s five dump trucks, the company owned other trucks that require the driver to possess a CDL, including one water truck and two lowboys. JA-794 (Stafford Aff. ¶ 6). To drive these vehicles, Thompson employed four dump truck drivers (Yisrael, Eric Smith, Ruby Gonzales, and Shelton Williams), one water truck driver (David Quesenberry), and two lowboy drivers (Jerome Ragland and Robert Lockley). JA-793 (Id. ¶ 5). Thompson also employed at least two other individuals with CDLs: Shawn Recore (employed January to April 2005) and Willie Jones (employed December 22, 2004, to January 28, 2005). Id. The EEOC also learned that Stafford never inquired whether there were any other Thompson employees with CDLs who were not already driving on the Saturdays in question and would be willing to work in Yisrael’s place, JA-787- 789, and no one told Yisrael he could make such an inquiry. Recore and Quesenberry, for example, both had CDLs that qualified them to drive a dump truck. JA-793. Their time cards show neither worked on February 12, the Saturday that precipitated Thompson’s discharge of Yisrael. JA-869, 873. With respect to any future Saturdays where a conflict might arise, Ragland and Lockley both said they would have volunteered to work on Saturdays in Yisrael’s place, even at Yisrael’s lower rate of pay. See JA-798-799, 803-805. The EEOC further learned that after Thompson discharged Yisrael, it did not replace him for more than two months. See JA-861-862 (Def.’s Amended Resp. to Interrog. #24 (1/16/07)). The Commission also learned that Thompson was already accommodating another employee, Ivan Larios, whose religion prohibited working on Saturday. Thompson excused Larios from Saturday work during his entire six years working there as a general equipment operator. JA-808-810, 1025- 1029. Stafford explained there were sufficient general equipment operators willing and able to work on Saturdays to enable Thompson to accommodate Larios’s religious conflict. JA-964-965. Following discovery, Thompson moved for summary judgment. JA-38. Thompson did not claim to have accommodated Yisrael’s Saturday work conflict, but argued, instead, that the EEOC could not establish a prima facie case under Title VII because the EEOC “cannot demonstrate that Thompson could have reasonably accommodated Mr. [Yisrael’s] religious belief by exempting him from all Saturday work.” JA-51-58. Thompson asserted, without elaboration, that it would suffer “a lost opportunity cost while its dump truck sits idle for the day,” JA-56, citing only Stafford’s and Lowe’s depositions at pages 114-115 (JA-423- 424) and 26-27 (JA-491-492), respectively. Thompson further asserted that it was not practical to seek a substitute driver from among its general equipment operators, but offered no detail as to any expense or administrative burden that adding an additional CDL driver to its insurance policy might impose. JA-54-55. Thompson also asserted that it would cost more to hire an independent contractor to take Yisrael’s place, but cited no evidence that the company actually needed to hire a truck to replace Yisrael on either of the Saturdays for which Yisrael was disciplined and then fired. See JA-56. C. First district court decision and first appeal The district court granted summary judgment for Thompson, finding “no evidence that [Thompson] discriminated against [Yisrael] because of his religion or religious practice.” See JA-677 (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) at 2). The court noted that Yisrael “missed four days of scheduled work without authorization” and that “[t]hree of the four unauthorized absence work days were Saturdays,” JA-676-677, but concluded that “the 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.” JA-677. The district court did not address the EEOC’s claim that Thompson failed to meet its burden of showing that it had either accommodated Yisrael or could not do so without undue hardship. This Court reversed. JA-681-690. In an unpublished opinion in June 2009, this Court held that the evidence established a prima facie case of religious discrimination because the evidence was sufficient for a trier of fact to find that Thompson terminated Yisrael for failing to work on Saturdays. JA-689. This Court remanded the case to permit the district court to address the accommodation aspect of the EEOC’s religious discrimination claim. JA-690. This Court stated that “[o]n remand, the district court may review the evidence and determine whether summary judgment in favor of Thompson is proper under an accommodation theory.” Id. D. Proceedings on remand Eight months after this Court issued its mandate in August 2009, the district court directed each party to file a supplemental brief “on the issue of reasonable accommodation,” ordering the EEOC to file its brief first and Thompson to follow. JA-693 (R.53, Order 5/3/10). The Commission’s supplemental brief reiterated that Thompson had failed to offer any evidence demonstrating that the company incurred any actual cost from Yisrael’s Saturday absences, that Yisrael’s absence caused the company to incur any penalties or fall behind in its construction schedule, or that any other available accommodation would have imposed an undue hardship on Thompson’s business. See generally R.54 (incorporating by reference R.30) & attachments R.54-2 through R.54-14 (JA-694-873). Thompson responded, in its supplemental brief, with a new affirmative defense never before asserted in its Answer or in any prior briefing. JA-885-886. Thompson also submitted, and relied on in its supplemental brief, entirely new evidence of “undue hardship” that Thompson had failed to disclose at any time during discovery or in any document filed with the court prior to remand. JA-1205-1211. Specifically, Thompson argued, for the first time in this litigation, that the EEOC’s claim was moot, for two reasons. First, Thompson argued that Yisrael was ineligible for rehire when Stafford re-hired him in November 2004 because Yisrael had not completed a substance abuse evaluation as required by Department of Transportation (DOT) regulations, 49 C.F.R. §§ 40.285, 40.289(b). JA-880, 885. Notably, Thompson gave no indication that Stafford or any other Thompson manager had asked Yisrael, or had taken any other steps to determine, before rehiring Yisrael, whether he had completed this alleged DOT requirement. Second, Thompson argued that Yisrael was disqualified from working for Thompson during and after his second stint because a jury could infer he had violated Thompson’s employee code of conduct during this time. JA-880, 885- 886. Thompson’s counsel had asked Yisrael, during his deposition in December 2006, whether he had ever used marijuana or any other illegal drugs since his religious conversion in 2003. See Yisrael Dep. 44:7-45:24, 116:11-117:8, 123:5- 20 (JA-1072-1073, 1104-1105, 1111). Thompson argued that a jury could infer, from Yisrael’s refusal to answer these deposition questions, that Yisrael had used marijuana during his second stint of Thompson employment. JA-885-886. Thompson also responded with new evidence contained in a recently signed declaration of Brandon Hudson, who had served as Thompson’s Vice President since 2002. See JA-1205. Thompson had not included Hudson in its interrogatory answers identifying the persons with knowledge of the claims and defenses in the case. JA-1230, 1271-1273. In his declaration, Hudson attempted—for the first time in this litigation—to quantify the alleged cost to Thompson caused by Yisrael’s absences and the alleged administrative inconvenience from securing a substitute driver. Hudson asserted: * Before permitting a CDL-licensed driver to drive one of its dump trucks, Thompson required a driver “to train with a current dump truck driver for a week,” costing the company wages of $440-$480/week for the trainee in addition to the wages of the driver who trains the employee. JA-1208 ( ¶10). * If Thompson trained one of its general equipment operators to serve as a substitute dump truck driver for Yisrael’s occasional Saturday work, Thompson would need to find a replacement for the trainee or hire someone else to fill in for the trainee during the week of training. Id. * Thompson did not routinely train extra drivers because the company had a great deal of staff turn-over and would have lost the benefit of training costs if the extra CDL-drivers stopped working for Thompson. JA-1209 (¶ 11). * Thompson’s contracts included a charge to its clients of $65 per hour for the use of dump trucks, so if a dump truck sat idle, Thompson lost $520 in contract revenue per day in addition to the cost incurred for hiring another company’s dump truck to perform the work for the day. JA-1209 (¶ 13). * During Yisrael’s employment, “Thompson welcomed substitutions of drivers for work days that fell on a driver’s Sabbath” but no one volunteered to substitute for Yisrael on Saturday work days during his second term of employment. JA-1209-1210 (¶¶ 14-16). Thompson did not seek the court’s permission to submit this new evidence from a witness whom Thompson had not identified in its interrogatory answers as one of the individuals with relevant knowledge of its “undue hardship” defense. The EEOC moved to strike Thompson’s newly advanced affirmative defense, arguing it lacked merit and was being asserted too late. JA-1212. The Commission also moved to strike Hudson’s declaration, arguing Thompson had never disclosed this information previously in its initial disclosures, in response to the EEOC’s discovery requests, or in answers to deposition questions posed to the witnesses Thompson had identified as having knowledge of “undue hardship.” Id. E. District court decisions on remand The court dismissed the EEOC’s claims for injunctive relief as moot, relying on the after-acquired evidence doctrine. JA-1367 (R.61 Order 10/18/2010 at 2 (citing McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 356 (1995)). The court reasoned that Yisrael’s invocation of the Fifth Amendment in response to questions about marijuana use since his conversion in 2003 permitted the court to “adversely infer … that Yisrael was in fact again doing drugs during his employment” which “would have been more than adequate reason to fire” Yisrael and would have made him ineligible for rehire. JA-1368. The court therefore concluded that “Yisrael … lack[ed] a legally cognizable interest in [Thompson’s] future employment policies” and, accordingly, that the EEOC’s claims for injunctive relief were moot, including the EEOC’s claim to enjoin Thompson from religious discrimination and to require Thompson to implement equal employment opportunity programs. Id. The court left intact the EEOC’s claim for back pay and compensatory and punitive damages. Id. In the same order, the court denied the EEOC’s motion to strike the Hudson declaration, finding Thompson’s failure to disclose this evidence earlier “harmless.” JA-1368-1370. The court stated the information should cause little surprise to the EEOC because it was either available from other witnesses (i.e., Thompson’s costs to train a CDL driver and to have a dump truck sit idle), or from Yisrael (i.e., whether anyone had volunteered to work for Yisrael). JA-1369. Nevertheless, since the EEOC had no prior opportunity to depose Hudson during discovery, the court reopened discovery for 60 days to allow the EEOC to investigate Hudson’s testimony. The court deferred ruling on Thompson’s summary judgment motion until the EEOC completed this discovery. JA-1369- 1370. The EEOC served interrogatories, requests for documents, and a deposition notice on Thompson Contracting. Instead of complying, Thompson Contracting moved for a protective order, JA-1371, asserting the company was experiencing financial difficulties and had no money to pay for the EEOC-requested discovery. R.63, R.66 (JA-1406-1407). The district court granted Thompson’s motion for a protective order and barred all further discovery. JA-1409 (R.67 Order 4/4/2011). The court stated it had “only reopened discovery out of an abundance of caution” and concluded that the likely benefit of discovery was actually “minimal” because, in the court’s view, the EEOC “suffered ‘little surprise’ from Hudson’s affidavit” and the affidavit’s submission was “harmless.” JA-1413. Based on Thompson’s representation that it was closing its business and lacked the financial resources to respond to discovery, the court ruled that the burden on Thompson of this additional discovery “outweighs its likely benefit.” JA-1412-1413. Thereafter, the district court granted Thompson’s motion for summary judgment, relying heavily on Hudson’s declaration. JA-1420 (R.71 Order 6/21/2011). The district court ruled, first, that Thompson provided “reasonable accommodation” for Yisrael’s religious conflict through shift-swapping, which the court said Yisrael never attempted to utilize, and paid personal leave, for which Yisrael (as a probationary employee) was not yet eligible. JA-1428. Citing EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307, 315 (4th Cir. 2008), the court stated that Yisrael’s ineligibility for paid leave “does not negate the reasonableness of the accommodation.” JA-1428. The court also said Thompson made personal efforts to accommodate Yisrael, relying on Stafford’s testimony that he told Yisrael “he would ‘work with him every way possible.’” JA-1428-1429. The court further held that any other accommodations would have caused Thompson undue hardship. JA-1429. The court found that giving Yisrael every Saturday off “would result in significant monetary cost to Thompson” and that Thompson had, in fact, incurred these costs when Yisrael did not work on December 18 and February 12. Id. The court rejected the Commission’s argument that any such hardship would be de minimus given the sporadic nature of Saturday work, stating the construction business was inherently time sensitive and “[w]hen a job needs to be completed, everyone must pull their weight.” JA-1430. The district court rejected the EEOC’s suggested alternative accommodations of creating substitute drivers for Yisrael or transferring Yisrael to another position. JA-1430-1432. Relying on Hudson’s declaration—which the Commission had no opportunity to rebut—the court concluded Thompson would incur additional expenses to train additional drivers and qualify them on its liability insurance. JA-1431. The court rejected the alternative of transferring Yisrael to a non-driver position, reasoning that there was no evidence Thompson needed another general equipment operator; Yisrael never requested a transfer; he did not mention transfer as a potential accommodation during his deposition; and there was evidence Yisrael would have refused a transfer (even though he attested, in his affidavit, that he would have accepted a transfer). JA-1431-1432. SUMMARY OF ARGUMENT The district court abused its discretion when it refused to strike Hudson’s declaration and then relied on it in granting summary judgment, after authorizing, and then rescinding, supplemental discovery on the information in Hudson’s declaration. At no point during discovery—nor, indeed, at any point prior to supplemental briefing on remand—did Thompson disclose the detailed information in Hudson’s declaration that goes to the heart of Thompson’s burden to prove undue hardship. Nor did Thompson indicate in its initial disclosures or in its initial and supplemental answers to interrogatories that Hudson had any such knowledge of the specific undue hardship Thompson now claims it experienced, or would have experienced, if it had accommodated Yisrael’s Saturday work restriction. By failing to disclose the information contained in Hudson’s declaration before discovery ended, Thompson violated the requirement that parties must supplement prior disclosures if any error or omission is “material.” See Fed. R. Civ. P. 26(e)(1)(A). Rule 37(c) provides that unless such a failure “was substantially justified or is harmless,” the party that failed to disclose “is not allowed to use that information or witness to supply evidence on a motion.” Fed. R. Civ. P. 37(c)(1). Thompson did not even argue that its prior nondisclosure was substantially justified, and the district court erred in finding Thompson’s belated disclosure “harmless.” In the first appeal, the EEOC set out in great detail the significant gaps in Thompson’s evidence of undue hardship, an issue on which Thompson bears the burden of proof. Hudson’s statement attempts—belatedly—to fill in these significant gaps. When the district court rescinded its order allowing supplemental discovery on this evidence, the court prevented the EEOC from demonstrating that the facts Hudson asserts in his declaration and the inferences Thompson draws from his statements are, indeed, disputed. Under these circumstances, the district court abused its discretion in failing to strike the evidence and relying on it in granting summary judgment. Without Hudson’s declaration, Thompson plainly fails to meet its statutory burden to demonstrate undue hardship. Even with Hudson’s new evidence, the district court erred in granting summary judgment. On this record, a reasonable jury would not be compelled to find that excusing Yisrael from the occasionally- required Saturday work, either with or without implementing one of the available alternatives, would have caused Thompson undue hardship. Finally, the district court erred as a matter of law in dismissing the EEOC’s claim for injunctive relief on the ground of “mootness.” The adverse inference the district court drew was factually unwarranted and failed to establish that Thompson’s alleged Title VII violation would not recur if the company resumed doing business. Furthermore, the district court abused its discretion by permitting Thompson to assert this affirmative defense for the first time on remand. ARGUMENT Standard of Review This Court reviews for abuse of discretion a district court’s grant of a protective order under Rule 26(c) and denial of a motion to strike evidence under Rule 37(c) on the ground that a party failed to timely disclose the evidence and the witness propounding it, as required by Rule 26(a)(1) and (e). Hoyle v. Freightliner, LLC, 650 F.3d 321, 329 (4th Cir. 2011); Nicholas v. Wyndham Int’l, Inc., 373 F.3d 537, 542 (4th Cir. 2004). This Court reviews de novo a district court’s grant of summary judgment, applying the same legal standards 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). This Court reviews de novo the district court’s dismissal of the EEOC’s claim for injunctive relief as moot. Doe v. Kidd, 501 F.3d 348, 353 (4th Cir. 2007). This Court reviews for abuse of discretion the district court’s decision to permit a defendant, after remand, to assert an affirmative defense not previously raised in the Answer or any pre-remand pleading. Cf. Brinkley v. Harbour Recreation Club, 180 F.3d 598, 611-13 (4th Cir. 1999), overruled in part on other grounds, Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). I. The district court abused its discretion by failing to strike the Hudson declaration and relying on it in granting summary judgment, after depriving the EEOC of any opportunity for supplemental discovery. The district court abused its discretion when it refused to strike Hudson’s May 2010 declaration and then relied on it in granting summary judgment, after having initially authorized, and then rescinded, supplemental discovery on the new information in Hudson’s declaration. Hudson had been Thompson’s Vice President since 2002. He was involved in Thompson’s defense of this litigation since at least January 2007, the month he helped prepare Thompson’s supplemental answers to interrogatories. Yet at no point before discovery ended in April of 2007—nor at any point prior to supplemental briefing on remand—did Thompson disclose the information in Hudson’s declaration, even though the EEOC had requested this information in its interrogatories. Thompson offered no justification for failing to disclose this information until June 2010, and the district court made no finding that Thompson’s delay was substantially justified. Thus, the district court was obligated under Rule 37 to bar Thompson from relying on it in support of summary judgment unless the information is “harmless.” It is not. Most of the detailed information in Hudson’s declaration was new and wholly unexpected. It directly addresses Thompson’s burden of proof on the critical issue of undue hardship, and the district court relied on it in granting summary judgment. In finding the information harmless, the district court plainly abused its discretion. In light of what Thompson presently claims Hudson knows about the alleged undue hardship of accommodating Yisrael, Thompson was required under Federal Rule of Civil Procedure 26(a) to disclose Hudson’s name at the outset of this litigation. See Fed. R. Civ. P. 26(a)(1)(A)(i). Thompson was further required, in response to the EEOC’s interrogatories, to disclose the substance of the information in Hudson’s declaration. Thompson disclosed the names of several dump truck drivers, one equipment operator, and Stafford and Chuckwu, the latter two as persons with knowledge of the undue hardship Thompson would experience from excusing a dump truck driver from working on Saturdays. See JA-1226- 1227. During discovery, Thompson added Lowe as a third individual with the same knowledge as Stafford and Chuckwu. See JA-1230-1231, 1271-1273. Hudson assisted Thompson in providing the supplemental answer that added Lowe, but omitted himself as someone with such knowledge. See JA-1270-1273. In discovery, the EEOC asked Thompson for all facts that Thompson relied on to support its undue hardship defense (the tenth defense in Thompson’s Answer, see JA-17). JA-1232, 1239, 1257-1262. In depositions, the EEOC asked each person Thompson had identified as knowledgeable about Thompson’s “undue hardship” defense to explain how Yisrael’s absence from an occasional Saturday make-up day would have burdened Thompson. E.g. JA-423-428, 437-438 (Stafford); JA-461 (Chukwu); JA-95-98, 106-107 (Lowe). The EEOC also asked Stafford to explain what Thompson required before someone could drive a Thompson dump truck. JA-751-754. If any of those discovery answers were incomplete in any material respect, Thompson was required to supplement its answers with the missing information “in a timely manner.” See Rule 26(e)(1)(A). Given that Hudson’s declaration addressed such information as Thompson’s driver training practices, insurance requirements, contract provisions, and customer charges, it is clear Thompson had not just acquired this information when Hudson signed his declaration in May 2010. Prior to remand, however, Thompson never disclosed any of this detailed information contained in Hudson’s declaration, even though Hudson assisted in the preparation of Thompson’s January 2007 supplemental answers. JA-1270. If a party fails to provide initial or supplemental information as required by Rule 26(a) or (e), the party “is not allowed to use that information or witness to supply evidence on a motion … unless the failure [to disclose] was substantially justified or is harmless.” See Fed. R. Civ. P. Rule 37(c). To provide a strong inducement for parties to comply with the mandatory disclosure requirements of the federal rules, Rule 37(c)’s sanction of non-use is mandatory, subject only to a district court’s finding that a particular nondisclosure was “substantially justified” or “harmless,” a question on which the party facing the sanction bears the burden of proof. See Carr v. V.S. Deeds, 453 F.3d 593, 602 (4th Cir. 2006) (citation omitted); Southern States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 595 n.2 (4th Cir. 2003); see also Musser v. Gentiva Health Servs., 356 F.3d 751, 758 (7th Cir. 2004).<5> Four of the five factors this Court applies to a Rule 37 determination are relevant to this Court’s review of the district court’s finding that Thompson’s belated disclosure of the information in Hudson’s declaration was “harmless”: (1) the surprise to the party against whom the witness was to have testified; (2) the ability of the party to cure that surprise; (3) the extent to which allowing the testimony would disrupt the trial; … and (5) the importance of the testimony.<6> See Hoyle, 650 F.3d at 329-330 (quoting Southern States Rack & Fixture, 318 F.3d at 596 (alterations in quote)). Considering these factors, Thompson failed to satisfy its burden. Starting with the last factor—importance of the testimony—the evidence in Hudson’s declaration constitutes the only detailed and comprehensive articulation in the record of the alleged costs and administrative burdens Thompson claims it would experience from accommodating Yisrael’s Saturday work restriction. Prior to this submission, Thompson had claimed vaguely that Yisrael’s absence on two Saturdays caused it hardship, but none of Thompson’s witnesses could explain how this hardship manifested itself, nor could they identify any costs or other burden associated with qualifying additional employees to serve as substitute dump truck drivers. The Commission was surprised by this evidence (the first factor), because Hudson’s declaration addressed information the EEOC had requested in interrogatories and during the depositions of at least two witnesses (Stafford and Lowe), but Thompson had never provided. The Commission was unable to cure its surprise (the second factor), because by the time Thompson finally disclosed this information in June 2010, discovery had long ended. There was, at that point, no way for the EEOC to clarify or test the validity of any of Hudson’s factual assertions. For example, Hudson stated (in paragraph 10, JA-1208) that Thompson would permit someone with a CDL to drive a Thompson dump truck only if they first trained for a week with an experienced Thompson dump truck driver. The EEOC was surprised by this new information; Stafford had said nothing about a week-long training requirement in response to deposition questions asking him to describe everything involved in qualifying someone with a CDL to serve as a Thompson dump truck driver. See JA-751-754. The EEOC had no opportunity to ask Hudson about the basis for this new information. Hudson also stated (in paragraph 13, JA-1209) that Thompson charged its clients $65 per hour for the use of its dump trucks, or $520 for an eight-hour day. (Notably, the district court relied on Thompson’s claim that it cost the company only $100 per day to run one of its dump trucks. See JA-1429.) Hudson asserted that Thompson “lost” this “contract revenue” whenever one of its dump trucks was idle, in addition to incurring “the cost … for hiring another company’s dump truck to perform the work for the day.” JA-1209. Stafford, however, when asked in his deposition to identify the costs Thompson incurred when Yisrael did not work on a Saturday, stated only that when a company truck “is sitting on my yard” he had to pay more for a “contract truck” and “los[t] revenue from my truck that’s paid for.” JA-771. Since it is Thompson’s burden to show that any costs of accommodation are more than de minimus, and since Thompson never disclosed the substance of this information through any other witness, the EEOC had no opportunity to explore with Hudson the basis for the difference between Thompson’s $100 per day cost to run one of its own dump trucks and the $520 per day it charged its clients, and whether Thompson’s contracts contained a similar cost-pass-along provision for the far more expensive independent contractor trucks that Thompson regularly hired, even when all of its own dump truck drivers were working.<7> Hudson further stated (in paragraph 14, JA-1209) that Thompson welcomed substitutions of drivers for work days that fell on a driver’s Sabbath. Thompson virtually never scheduled work on Sundays, JA-966, and only two Thompson employees were known to have religious conflicts with Saturday work—Yisrael, whom Thompson never told that he could seek a substitute, and Larios, whom Thompson simply excused from any Saturday work. Hudson’s declaration does not explain exactly how Thompson “welcomed” substitutions or for whose benefit, or how Thompson conveyed this alleged policy to employees in need of a religious accommodation. The EEOC was afforded no opportunity to clarify questions like these raised by Hudson’s statement. Adapting the third factor to these circumstances, allowing this new evidence into the case for the first time in June 2010, more than three years after discovery closed, improperly disrupted the briefing and further delayed the resolution of a summary judgment motion Thompson originally filed in May 2007. That Thompson offered this evidence at the very end of an already-protracted proceeding, and that the inclusion of the evidence properly required further delay to permit supplemental discovery (which the district court originally granted but then rescinded), weighs strongly in favor of disallowing the evidence. The district court incorrectly accepted Thompson’s argument that the EEOC could have obtained the same information through other sources. The court then improperly concluded, on that basis, that Thompson’s prior nondisclosure of the information in Hudson’s declaration during discovery was harmless. That rationale is factually incorrect and legally unavailing. The argument is factually incorrect because the EEOC deposed Thompson’s witnesses on the critical issue of undue hardship and asked for all information concerning the costs to Thompson from accommodating Yisrael, but these witnesses did not provide the detailed information in Hudson’s statement, nor did Thompson provide it in response to the EEOC’s interrogatories asking for all information that showed accommodating Yisrael would impose an undue hardship. Thus, there is absolutely no support for the district court’s conclusion that the new and very detailed “undue hardship” information in Hudson’s declaration was available for the EEOC to find on its own during discovery.<8> Even if true, however, it would not justify the court’s refusal to strike Hudson’s affidavit. As this Court has noted, a party that fails to disclose information it is required to disclose cannot avoid a Rule 37 sanction on the basis that the other party might have been able to find the information through its own efforts; litigants are not required to “shoulder the burden,” at their own expense, “to independently investigate and ferret out” information that Rule 26 requires the other party provide them. Carr, 453 F.3d at 604-05; see also Musser v. Gentiva Health Servs., 356 F.3d 751, 759 (7th Cir. 2004) (that a party could have obtained undisclosed information through its own efforts does not provide “substantial justification” for other party’s nondisclosure). Finally, it bears noting that the district court’s sua sponte order for supplemental briefing, directing each party to file one supplemental brief, required the EEOC to file its brief first, even though the EEOC was the party opposing summary judgment. By directing Thompson—the moving party—to file its supplemental brief last, the district court made Thompson’s brief akin to a reply brief. From this perspective, it is even more evident just how fundamentally improper Thompson’s timing was. Not only did Thompson introduce this new evidence for the first time on remand, it did so at a point when the EEOC had no opportunity to respond, even with argument, before the court issued its decision. In sum, Hudson’s belated statements go to the heart of Thompson’s burden of proof and attempt to fill in significant gaps in Thompson’s previous conclusory assertions of undue hardship. By granting and then denying supplemental discovery, the district court ensured the EEOC had no opportunity to test and rebut this evidence. The district court abused even the broad discretion this Court accords a district court to rule on such discovery matters. See Carr, 453 F.3d at 602; see also Doe v. Johnson, 52 F.3d 1448, 1464 (7th Cir. 1995); Caskey v. Man Roland, Inc., 83 F.3d 418 (5th Cir. 1996) (unpub.) (court abused its discretion when it failed to invoke the mandatory sanction of Rule 37(c), as nondisclosing party failed to demonstrate nondisclosure was substantially justified or harmless). II. Summary judgment was improper because Thompson did not prove, as a matter of law, either that it accommodated Yisrael or that any reasonable accommodation would have caused undue hardship. Title VII requires employers to accommodate an employee’s religious observances or practices unless the employer demonstrates it “is unable to reasonably accommodate an employee’s … religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. §§ 2000e(j), 2000e-2(a)(1). When a plaintiff establishes a prima facie case of a Title VII claim of failure to reasonably accommodate a religious conflict, as this Court previously ruled the EEOC did here (JA-689-690), the burden of proof shifts to the employer to “demonstrate either (1) that it provided [the employee] with a reasonable accommodation for his … 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.”’” Firestone, 515 F.3d at 312 (citations omitted). Thompson cannot satisfy this burden by simply asserting it reasonably accommodated Yisrael’s religious conflict when it did not, or by simply asserting that any accommodation would have imposed undue hardship; an employer must offer actual evidence. See, e.g., Firestone, 515 F.3d at 317 (employer’s consideration of potential impact of an accommodation “may not be based on mere speculation or conjecture”) (citing Brown v. Polk County, IA, 61 F.3d 650, 655 (8th Cir. 1995) (en banc)). Other circuits concur 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 Co., 827 F.2d 1081, 1086 (6th Cir. 1987) (“An employer must … present evidence of undue hardship; it cannot rely merely on speculation.”); 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.”). The district court erred in ruling that Thompson reasonably accommodated Yisrael’s religious conflict as a matter of law. A reasonable jury could easily find that the three measures the district court characterized as religious accommodations—shift swapping, paid personal leave, and Stafford’s vague promise to “work with [Yisrael] every possible way”—were never, in fact, offered to Yisrael. There were no “shifts” to “swap” in Thompson’s operations, since all of the work was performed during one shift a day, so the EEOC assumes Thompson and the district court used this phrase to mean allowing Yisrael to ask another employee to work in his place on Saturdays, when not all employees were required to work. A reasonable jury could find, based on the collective testimony of Yisrael, Stafford, and Lowe, that no Thompson official ever advised Yisrael he could ask someone else to work for him on a Saturday or made available to him any process for seeking a substitute. Thus, contrary to the district court’s conclusion that Yisrael never attempted to take advantage of this “accommodation,” JA-1428, a reasonable jury could find it either did not exist or Yisrael had no way of knowing it was available. A reasonable jury could also reject Thompson’s argument that the company accommodated Yisrael’s religious conflict through paid personal leave. There is no dispute that probationary employees like Yisrael could not use paid personal leave; Thompson offered this benefit only after employees completed their 90-day probationary period. The district court, citing Firestone, 515 F.3d at 315, ruled that the fact that “Yisrael was not yet able to take advantage of [paid personal leave] … ‘does not negate the reasonableness of the accommodation.’” See JA-1428. A reasonable jury, however, could disagree. This Court’s comment in Firestone that the company’s seniority system constituted an additional reasonable accommodation, even though the employee in Firestone could not yet bid into his preferred shift, 515 F.3d at 315, is properly understood in the very different factual circumstances of that case, where the employee’s religious conflict was much more extensive than Yisrael’s and Firestone’s responses far more accommodating than Thompson’s. For instance, in contrast to the occasional Saturday conflict here, the Sabbath observance of David Wise, the Firestone employee, conflicted with at least half of his regular Friday evening shifts every week, as well as with his frequently- assigned Saturday overtime.<9> His work schedule also conflicted with more than a dozen other religious holy days per year that fell during the regular work week. Firestone provided numerous accommodations in response to these frequent scheduling conflicts.<10> It was in this context that this Court observed that Firestone’s seniority system “represent[ed] a significant accommodation to the needs, both religious and secular, of all of [its] employees” even though Wise did not yet have sufficient seniority to bid into a shift that would have eliminated his weekly conflict. Firestone, 515 F.3d at 315. Firestone does not, however, compel the conclusion—as the district court appeared to believe—that if an employer offers paid leave to other employees, it has accommodated the employee who has a religious conflict, even if that employee is not eligible for the benefit. Thus, under the facts in this case, a reasonable jury could conclude that the mere fact that other employees could receive paid personal leave did not satisfy Thompson’s Title VII obligations to reasonably accommodate Yisrael’s religious conflict. Finally, the district court erred in ruling that Stafford’s testimony that he told Yisrael he would “‘work with him every way possible’” demonstrated as a matter of law that Thompson had satisfied its Title VII obligations toward Yisrael. JA- 1428-1429. Considering the record as a whole, a reasonable jury would not be compelled to find that Stafford’s alleged statement proves Thompson “tried to personally accommodate Yisrael.” JA-1428. When Stafford was asked to explain this statement, he could not identify anyone he had actually approached to work in Yisrael’s place or any step he had taken to find a replacement driver. JA787-789. Lowe, on the other hand—who was responsible for obtaining drivers for Saturday work—said he could have worked around Yisrael’s Saturday conflict and would have stopped asking Yisrael to work on Saturdays had he known about the letter from Yisrael’s pastor documenting the Sabbath work restriction (which Stafford admitted he saw but never shared with Lowe). See infra at 48 n.12. Given Lowe’s certainty that he could have accommodated Yisrael and Stafford’s failure to take any concrete steps to “work with Yisrael” in any way at all, a reasonable jury could discount entirely Stafford’s vague claim that if he could work around Yisrael’s absence, he would “work around it.” See JA-1429. The district court also erred in ruling as a matter of law that any other accommodation—including simply excusing Yisrael from Saturday work—would have imposed an undue hardship on Thompson. To the contrary, on this record, a reasonable jury could find that excusing Yisrael from Saturday work would have imposed minimal, if any, costs or administrative burdens on Thompson. In assessing Thompson’s evidence of undue hardship, it is significant that Thompson required dump truck drivers to work on a Saturday only infrequently and, on those occasions, did not necessarily ask every driver to work. During Yisrael’s twelve-week first period of employment, Thompson asked Yisrael to work on a Saturday only once (and Yisrael declined for religious reasons). Thompson scheduled work on three additional Saturdays during this time, but used only two of its four or five dump truck drivers on these three Saturdays. See supra at 7. During Yisrael’s eleven-week second period of employment, Thompson scheduled only three makeup Saturdays. See supra at 8-11. Thus, in contrast to situations where a company runs its operations “around-the-clock,” e.g., Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 80 (1977), or requires overtime on a regular and frequent basis, e.g., Firestone, 515 F.3d at 310, 318 (production ran 24 hours per day in three shifts, Monday through Friday, and “nearly every Saturday” during 2002), Thompson’s Saturday work requirement occurred very infrequently. Given this infrequent need for Saturday drivers and the fact that, even when Thompson did schedule work on a Saturday, it did not always use every driver, a reasonable jury could conclude that excusing Yisrael from working on Saturdays would not result in undue hardship. In ruling, instead, that Thompson had established undue hardship as a matter of law, the district court relied on three conclusions that are supported only by inferences that could be drawn from record evidence: (1) that Yisrael’s absence on these occasional Saturdays “would result in significant monetary cost to Thompson” based on the cost difference to Thompson between running one of its own dump trucks versus hiring an independent contractor, (2) that “Thompson in fact incurred these extra costs and lost revenue when Yisrael did not work on December 18th and February [12th],” and (3) that the sporadic nature of Saturday work does not make any hardship de minimus because “Thompson’s construction work is inherently time sensitive” and “[w]hen a job needs to be completed, everyone must pull their weight.” JA-1429-1430. But although a fact-finder might be permitted to draw such inferences from the record evidence, it would not be compelled to do so. Therefore, the district court improperly granted summary judgment on these bases. The only evidence to support the district court’s first statement—that excusing Yisrael from working on Saturdays “would result in significant monetary cost to Thompson”—was introduced after remand, in Hudson’s belated declaration. In its original summary judgment pleadings, Thompson argued that Yisrael’s Saturday absences created “lost opportunity costs,” relying only on testimony from Stafford and Lowe, neither of whom offered any detailed explanation of what this meant or how much “opportunity cost” would actually be lost. See JA-56 (citing Stafford Dep. 114-115 (JA-423-424); Lowe Dep. 26-27 (JA-491-492); see also Stafford Dep. 119:4-16, 121:2-12 (JA-141-142)).<11> Hudson’s declaration provided Thompson’s first specific information on alleged lost opportunity costs. See JA-1209 (par.13). As explained above, the EEOC contends the district court abused its discretion in not striking this evidence. Even considering Hudson’s declaration, however, a jury would not be compelled to find that Yisrael’s absence on an occasional Saturday would inevitably cause any cost to Thompson, let alone more than a “de minimus” cost. Hudson premised all of his untested representations as to specific costs on the assumption that an absent dump truck was actually needed to complete a project on a day a dump truck driver failed to report to work. See JA-1209; see also id. (“If a dump truck sat idle on a day that it was needed for a project”) (emphasis added). Nothing in Hudson’s declaration or Stafford’s testimony asserts that a contract truck was actually hired on December 18 or February 12 to replace Yisrael, and Thompson offered no evidence that Yisrael’s dump truck was actually needed to complete a project on any of the Saturdays he was absent. A jury might infer from all of the record facts that Yisrael’s dump truck was needed on December 18 or February 12, but a jury might also reasonably conclude it was not. For this reason, a jury should decide this question. Concerning the district court’s second statement—that Thompson actually incurred such costs on December 18 and February 12—no witness stated this, not even Hudson. See JA-1209 (¶¶12, 13). Indeed, Stafford, in explaining why he could not say for certain whether Yisrael’s absences resulted in any specific costs to the company, candidly admitted that although some of Thompson’s projects may have incurred penalties for delayed completion during Yisrael’s second period of employment in 2004-2005, Thompson had no way of knowing whether Yisrael was ever assigned to any of those projects because, at that time, Thompson had no system for tracking employee assignments. JA-141-142 (Stafford Dep. 119:4-16, 121:2-12). Concerning the district court’s third rationale—that Thompson’s construction work is inherently time sensitive and “when a job needs to be completed, everyone must pull their weight”—this generalization is simply far too amorphous to support a finding of “undue hardship” as a matter of law. Like the other statements discussed above, a jury might be able to infer some cost or hardship from this evidence, but the evidence would not compel such a conclusion as a matter of law. Thus, although it is possible Thompson incurred some kind of cost or experienced some form of hardship because of Yisrael’s absences on December 18 and/or February 12, no record evidence establishes this. At best, it might be inferred from some of the evidence, but this inference is not compelled by the evidence. To the contrary, even considering Hudson’s declaration, a reasonable jury could conclude Thompson completed the work that needed to get done on December 18 and February 12 and would have used the same number of independent contractor trucks even if Yisrael had worked. A jury could reach this conclusion particularly because the company did not replace Yisrael for more than two months after it fired him, during which time Thompson relied on only three drivers for its five dump trucks. See JA-1278. Every workday during these two months, Thompson voluntarily relinquished the $520 in contract revenue that Hudson’s declaration implies Thompson lost when Yisrael did not work on December 18 and February 12. A reasonable jury could find that since, for more than two months, all of Thompson’s regular week and occasional Saturday work was 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). The district court also erred in rejecting as a matter of law two alternative accommodations that Thompson failed even to explore: securing a substitute driver for Yisrael or transferring him to a position as a general equipment operator. See JA-1430-1432. As this Court has noted in other cases, Thompson’s “refusal even to attempt to accommodate an employee’s religious requests” before disciplining the employee for violating a workplace rule may indicate “improper motive on the employer’s part.” See Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1020-21 (4th Cir. 1996); EEOC v. Ithaca Indus., Inc., 849 F.2d 116, 119 (4th Cir. 1988) (en banc) (Title VII violated where employer “made no effort to accommodate” an employee). This Court recognized, in its en banc decision in Ithaca, that “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 supra at 13- 14. Even if these particular drivers were unavailable on the dates needed—as the district court concluded, see JA-1430-1431—Stafford never explored whether there were other employees with CDLs working as general equipment operators who could have become qualified on Thompson’s insurance policy to drive a dump truck in Yisrael’s place. JA-787-789. Thus, although Thompson baldly asserted that “Stafford considered whether there might be other employees who could work in [Yisrael’s] place,” see JA-325 (at n.10); JA-887, the summary judgment evidence would permit a reasonable jury to reject this assertion and find, instead, that Thompson never attempted to implement this option. A jury could reach this conclusion both because Stafford admitted he never actually explored this possibility, JA-787-789, and because Lowe, the person responsible for securing drivers when Saturday work was required, stated that he believed he could have worked around Yisrael’s Saturday work restriction.<12> The district court based its rejection of this option, in part, on a belief that Thompson would have to pay a higher insurance premium to add any new CDL drivers to its insurance policy. See JA-1431. But there is nothing in the record to support the district court’s factual assumption. Stafford admitted he did not know whether adding additional drivers would cause any additional insurance costs, JA-789, and Hudson’s declaration is silent on this question. The district court also erred in rejecting, as a matter of law, the EEOC’s suggested alternative that Thompson could have offered to transfer Yisrael to a general equipment operator position. See JA-1430-1432. At the same time that Thompson was disciplining Yisrael for not working on Saturday because of his religious beliefs, the company was accommodating general equipment operator Ivan Larios, excusing him from working on any Saturdays for his entire six-year tenure with the company. JA-808-810. General equipment operators comprised the bulk of Thompson’s workforce (approximately 200 out of 250 employees). JA-793 (Stafford Aff. ¶ 5). Stafford explained that when there was Saturday work, Thompson generally did not need all of its general equipment operators and, therefore, it was easier to accommodate a Saturday work restriction for general equipment operators. JA-438-439, 447. “Lateral transfer” is another 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 a general equipment operator position, but Thompson never offered him this option. See JA-744 (Yisrael Aff. ¶ 8); JA-790 (Stafford Dep. 199:23-25). The district court rejected this accommodation in part because there was no evidence Thompson needed another general equipment operator and Yisrael allegedly did not mention transfer when asked about possible accommodations during his deposition. See JA-1432. But the deposition transcript does not reflect that Yisrael was ever asked this question, and it is Thompson’s burden, not EEOC’s, to demonstrate that it had no need for any additional general equipment operators. Based on all the evidence—including evidence that Thompson had a very high employee turnover rate—a reasonable jury could find, on this record, that transfer was another reasonable accommodation Thompson could have offered Yisrael without undue hardship. Thompson attempted to counter these suggested accommodations by asserting that finding alternate drivers would have been generally difficult or costly and that Yisrael would not have accepted a transfer because he preferred driving over physical labor, and the district court accepted these arguments. JA (R.71 at 12-13). At most, however, Thompson’s evidence merely creates a factual dispute concerning the feasibility of the accommodations the Commission identified. Considering the record as a whole, Thompson’s evidence does not establish, as a matter of law, that finding substitute drivers would constitute an “undue hardship” or that Yisrael would have inevitably rejected any offer of a transfer. 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 JA-786, 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. JA-787-790; JA-744 (Yisrael Aff. ¶ 8). Indeed, Stafford never even consulted Thompson’s EEO official concerning Yisrael’s need not to work on Saturdays based on his religion, a step that might have altered the course of events. See JA-833-835. 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. JA-829-831. Stafford did not tell Chukwu that Yisrael could not work on Saturdays because of his religious beliefs; Chukwu learned this only after Thompson received Yisrael’s EEOC charge. JA-831-832. When Chukwu then asked Stafford whether Stafford had known Yisrael could not work on Saturdays because of his religion, Stafford claimed that Yisrael had never informed him of this religious conflict. JA-833. As noted above, however, Stafford previously had had several conversations with Yisrael about his religious conflict, and Yisrael states that Stafford expressly indicated he was terminating Yisrael “because my religious schedule conflicted with the company’s work schedule.” JA-741. 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.<13> This Court’s en banc decision in EEOC v. Ithaca, 849 F.2d 116, is closely analogous to this case. There, this Court ruled that an employer violated its Title VII duty to accommodate a worker’s refusal to work on his Sabbath when the employer, as here, simply warned the employee that failure to work was unacceptable and then discharged the employee when he continued to observe his Sabbath work restriction, without making any actual effort to accommodate the conflict. There, like here, other workers had testified they would have been willing to work in the discharged employee’s place and, like here, the defendant’s manager never tried to ascertain if volunteer substitutes were available. See Ithaca, 849 F.2d at 117-19 & n.3. Thompson argued below that this Court’s decision in Firestone, 515 F.3d 307, relieves it of any obligation to attempt to actually eliminate Yisrael’s religious conflict. Firestone, of course, did not overrule Ithaca. Rather, both cases apply the general principles noted above to the specific facts. To the extent analogies are useful, the facts in the present case fall far closer to Ithaca than Firestone. See supra at 39. In sum, whether a particular accommodation is reasonable and whether a particular cost or inconvenience amounts to an “undue hardship” are fact-intensive determinations that depend on all the circumstances and, therefore, are generally questions for a jury. See, e.g., Sturgill v. United Parcel Serv., Inc., 512 F.3d 1024, 1032-33 (8th Cir. 2008); see also Baker v. The Home Depot, 445 F.3d 541, 548 (2d Cir. 2006) (questions of reasonableness ordinarily “best left to the fact finder”); EEOC v. Universal Mfg. Corp., 914 F.2d 71, 73-74 (5th Cir. 1990) (per curiam) (“reasonableness” and “undue hardship” are questions of fact for fact finder). The record evidence here 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, or by using a substitute driver, or by permitting Thompson to transfer to a position as a general equipment operator, would have imposed an undue hardship on the conduct of its business. III. The district court erred in dismissing the EEOC’s claim for injunctive relief The district court erred in dismissing the Commission’s claim for injunctive relief on the ground that after-acquired evidence demonstrates Yisrael would not be entitled to return to work at Thompson. Thompson’s affirmative defense based on “after-acquired evidence” has no factual basis in the record. Even if there was such a factual basis, it would not establish as a matter of law that the EEOC has no viable claim for injunctive relief. Finally, because Thompson’s unjustified delay in asserting this affirmative defense caused the EEOC unfair surprise and prejudice, the district court abused its discretion in even permitting Thompson to assert this defense so late in the litigation. For all these reasons, this Court should reverse. The district court dismissed the EEOC’s claim for injunctive relief under the rationale that Yisrael’s refusal to answer deposition questions about marijuana or other drug use since his religious conversion in mid-2003 permitted the court to draw an adverse inference that Yisrael had used marijuana during the short time period relevant to this litigation (from Yisrael’s rehire on November 29, 2004, through April 30, 2005, when Yisrael began attending college full-time). See JA- 1367-1368. The district court accepted Thompson’s argument that if it had discovered Yisrael was using marijuana while employed by Thompson the second time—which it did not—such misconduct would have been grounds for immediate termination. See JA-1368. This adverse inference is factually unsupportable, however, because Thompson’s counsel never asked Yisrael about drug use specifically during the relevant five-month time period. Instead, counsel asked Yisrael about drug use over a vastly over-inclusive period of more than 42 months (from his religious conversion in mid-2003 until his deposition in December 2006). See JA-1072- 1073, 1104-1105, 1111 (Yisrael Dep. 44:7-45:24, 116:11-117:8, 123). Thus, even if one might properly draw an adverse inference that Yisrael used marijuana at some point during those 42 months (indeed, Thompson claims that it ended Yisrael’s first period of employment because he tested positive for marijuana in September 2004), there is no basis to draw an adverse inference that Yisrael used marijuana during the five months relevant to this litigation. Thompson also argued that Yisrael was ineligible for rehire in November 2004 because he allegedly had not completed a DOT-required substance abuse evaluation. JA-880, 885. It is impossible to determine from the summary judgment record whether Yisrael lacked such an evaluation in November 2004, as Thompson never raised this during discovery nor offered any evidence of this in support of summary judgment. But Stafford rehired Yisrael knowing about his prior drug use, and DOT regulations mandate that, before an employer offers an employee the opportunity to return to a DOT safety-sensitive position following a drug violation, the employer must “ensure that the employee receives an evaluation by a SAP [substance abuse professional] … and … successfully complies with the SAP’s evaluation recommendations.” See 49 C.F.R. § 40.289(b). Thompson’s argument suggests it did not comply with its regulatory obligation to ensure the evaluation had been completed. Nevertheless, this is simply irrelevant here. Since Stafford did rehire Yisrael, Thompson’s noncompliance with this DOT regulation is irrelevant to the issue in this lawsuit—i.e., whether Thompson is liable under Title VII for failing to accommodate Yisrael’s religious conflict. Indeed, the district court did not even rely on this argument in dismissing the EEOC’s claim for injunctive relief. See JA-1367-1368. Even assuming arguendo Yisrael was disqualified from future Thompson employment, that would not affect the EEOC’s separate claim for injunctive relief to prevent other acts of discrimination. As the Supreme Court and this Court have observed, the chief aim of Title VII is to eliminate discrimination in employment and, thereby, to avoid harm in the first place. See, e.g., Hardison, 432 U.S. at 71- 72 & n.6 (1977); Firestone, 515 F.3d at 313. The Commission brings lawsuits like this not only to seek relief for a specific, aggrieved individual, but also to seek broad injunctive relief protecting other employees from similar discrimination in the future. Consistent with that objective, Title VII lists injunctive relief as a quintessential remedy for discrimination. See 42 U.S.C. § 2000e-5(g)(1) (providing that “[i]f the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate”). Thus, even if Yisrael were not eligible for reinstatement because of some after-acquired evidence of misconduct, it would not affect the EEOC’s claim for injunctive relief to prevent future discrimination. If the Commission prevails in this appeal and, ultimately, on the merits of its Title VII claims at trial, the district court can then consider the appropriateness of injunctive relief in the form of requiring Thompson to undertake steps to prevent any failure to provide a religious accommodation in the future. At this stage in the litigation, however, there is no legal or factual basis to dismiss out of hand the EEOC’s claim for injunctive relief.<14> In any event, Thompson waived this affirmative defense by failing to include it in its Answer or in any pleading prior to remand. Federal Rule of Civil Procedure 8(c) requires every party, in responding to a pleading, to “affirmatively state any avoidance or affirmative defense.” As this Court recognizes, “it is indisputably the general rule that a party’s failure to raise an affirmative defense in the appropriate pleading results in waiver.” Brinkley, 180 F.3d at 612 (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1278 (1990)). The exception to this general rule, permitting a defendant to raise an affirmative defense for the first time in a pre-trial dispositive motion as long as there is no “unfair surprise” or “prejudice” to the plaintiff, see id., is not applicable here because Thompson’s belated assertion of this defense in its supplemental brief on remand caused the EEOC both “unfair surprise” and “prejudice.” Thompson not only failed to argue this affirmative defense in its summary judgment motion in 2007, it omitted any mention of the DOT regulation or Yisrael’s failure to answer any deposition questions. Thompson merely noted, in its factual summary, that it fired Yisrael from his first period of employment for testing positive for marijuana and that the Air Force had previously discharged Yisrael for marijuana use. See JA-45, 50. Thompson waited to make this argument until its supplemental brief after remand—more than three years after it originally filed its motion for summary judgment.<15> See JA-885-886 (R.55). Significantly, under the district court’s sua sponte schedule for supplemental briefing, Thompson’s supplemental brief was intended to be the last brief filed by either party before the district court ruled on the reasonable accommodation/undue hardship issue. JA-693. Thus, Thompson asserted this affirmative defense for the first time at a point in the proceedings when the EEOC would have no opportunity to respond. Thompson’s belated assertion of this affirmative defense caused “unfair surprise” and “prejudice” because the EEOC had no opportunity, at that point, to respond to the legal argument or the underlying factual assertions. See Noel v. Artson, 297 Fed.Appx. 216, 218-19 (4th Cir. 2008) (failure to raise affirmative defense in a timely manner deprives plaintiff of opportunity to address issue fully in opposition to summary judgment) (unpub.). Thompson offered no excuse for waiting so long to raise this affirmative defense, and it had none; Thompson was aware of the underlying facts at least since it deposed Yisrael in December 2006— five months before it filed its summary judgment motion in May 2007. Thus, wholly apart from the fact that the adverse inference the district court drew is factually unsupportable on this record and does not, in any event, undermine the EEOC’s claim for injunctive relief to prevent future discrimination—issues this Court reviews de novo—the district court also abused its discretion in even permitting Thompson to assert this affirmative defense for the first time in its supplemental brief after remand. See Sales v. Grant, 224 F.3d 293, 296 (4th Cir. 2000) (defendants waived right to assert affirmative defense of qualified immunity by failing to press the claim until case remanded to district court). For all of these reasons, this Court should reverse the district court’s dismissal of the EEOC’s claim for injunctive relief. CONCLUSION For all of the foregoing reasons, we respectfully urge this Court to reverse the district court’s orders refusing to strike Hudson’s declaration, dismissing the EEOC’s claim for injunctive relief, and granting summary judgment, and to remand the case for further proceedings. REQUEST FOR ORAL ARGUMENT The Commission requests oral argument because this second appeal in this Title VII religious discrimination suit presents three important questions: whether a party can rely on previously-undisclosed evidence to establish a key issue in the case; whether the EEOC’s claim for injunctive relief can properly be dismissed based on a factually-unwarranted adverse inference, without considering the EEOC’s role to eliminate workplace discrimination; and, finally, what evidence satisfies an employer’s burden of demonstrating that accommodating an employee’s religious conflict would impose an undue hardship on the conduct of its business. Because of the fact-intensive nature of this case, the Commission believes oral argument would assist this Court in resolving the questions presented in this appeal. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel _____________________________ SUSAN R. OXFORD Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., Washington, D.C. 20507 Tel (202) 663-4791 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 13,953 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 131 M Street, N.E. Washington, D.C. 20507 (202) 663-4791 susan.oxford@eeoc.gov Dated: January 20, 2012 CERTIFICATE OF SERVICE I, Susan R. Oxford, hereby certify that on January 20, 2012, I filed the EEOC’s Opening Brief with this Court electronically, using the Court’s electronic case filing (ECF) system, and also filed an original and eight paper copies of the Appellant EEOC’s Opening Brief with this Court by United Parcel Service, postage pre-paid, and served an electronic copy of the same brief on the same date, by the same means, on counsel for Thompson Contracting, and also served two paper copies of said brief on the same date by United Parcel Service, postage pre- paid, at: Michael C. Lord, Esq. WILLIAMS MULLEN 301 Fayetteville Street Suite 1700 Raleigh, North Carolina 27601 (919) 981-4000 Susan R. Oxford Attorney EEOC, Office of General Counsel 131 M Street, N.E. 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> See JA-855 (Defendant’s supplemental response to interrogatory #2). <3> Yisrael said he told Stafford, “‘I can’t work because Saturdays are my Sabbath days in my religious belief,’” and that Stafford responded, “‘We’ve been through this before.’” JA-724. <4> One truck, “ECT,” appears on two separate Woodell invoices for February 12, 2005. See JA-847, 851. <5> Other circuits agree with this allocation of the burden of proof. See Roberts v. Galen of Va., Inc., 325 F.3d 776, 782 (6th Cir. 2003); Wilson v. Bradlees of New England, Inc., 250 F.3d 10, 21 (1st Cir. 2001); Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001). <6> Thompson offered no explanation for failing to name Hudson or to disclose this information previously, and the district court did not find that Thompson’s prior nondisclosure was substantially justified. Thus, this Court’s fourth factor—the party’s explanation for failing to name a witness before trial—is not relevant here. <7> The record indicates Thompson spent more than $53,500 to hire 137 independent contractor trucks on 17 different days (only two of which were Saturdays) during one ten-week period in 2004-2005. See supra at 5-6. <8> The EEOC agrees that information concerning the procedures and costs for obtaining and maintaining a CDL in North Carolina, and the cost to obtain a driver’s driving record from the North Carolina Division of Motor Vehicles, are matters of public record. JA-1369. Thus, if this information were relevant to this litigation (which it is not), the Commission could have obtained it from public sources. The same is not true of the other new information contained in Hudson’s declaration. <9> Firestone operated its factory 24 hours per day, five days per week (three shifts per day) with frequent Saturday overtime (nearly every Saturday during 2002). Firestone, 515 F.3d at 309-10, 318-19. <10> Wise was permitted to use the generous leave and shift-swap policies available to all Firestone employees to cover many of his religious scheduling conflicts. In addition, a manager modified Firestone’s leave policy to permit Wise to take vacation leave in half-day increments, and Wise’s supervisor reviewed the work schedule weekly, altered Wise’s shift whenever possible, and found substitutes when he could not alter his shift. Firestone, 515 F.3d at 315-316. <11> Stafford stated simply 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.” JA-423. Stafford also stated that it cost about twice as much to run a contract truck as it did to run one of Thompson’s own trucks, but Stafford explained that this was largely because the independent dump trucks, ranging in size from two to five axles, had greater capacities than Thompson’s own dump trucks and were hired to perform work that Thompson’s dump trucks could not perform. JA-425, JA-159 (Stafford Dep. 116:3-9, 210:1-10). <12> 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.” JA-818. Lowe further explained both that if he had seen the letter from Yisrael’s pastor verifying the religious restriction, he would not have continued asking Yisrael to work on Saturday and that he believed he would have been able to work around Yisrael’s religious conflict. JA-825-826. <13> 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.” JA-836-837; JA-657 (Stafford’s Letter to ESC). Stafford admitted this statement is inaccurate and said that initialing the document was a “mistake” on his part. JA-784-785. A jury could conclude, however, that Stafford was not simply mistaken, but intentionally misled Chukwu concerning his knowledge of Yisrael’s religious conflict. <14> The EEOC recognizes that Thompson’s president, Bobby Thompson, claims the company presently has no employees and is not doing any business due to a downturn in construction projects in North Carolina. JA-1406-1407. Nevertheless, as of December 2011 the company had not yet dissolved, and it is possible Thompson could resume doing business in the future. The EEOC seeks reversal of the district court’s decision on this issue so that if this Court reverses summary judgment and the Commission ultimately prevails on liability below, the EEOC can seek an order from the district court requiring Thompson, if it resumes doing business within a specified period of time, to implement anti-discrimination measures to prevent future recurrences. <15> Thompson misrepresented to the district court that it raised this argument during the first appeal. See JA-1290 (citing Appellee Thompson’s Response Brief in Appeal No. 08-1626 (4th Cir.) at 10 n.11). To the contrary, in its response brief in the first appeal, Thompson merely mentioned the DOT regulation and Yisrael’s failure to answer questions about marijuana use in a footnote in the fact section of its brief. Even if Thompson had attempted to assert this affirmative defense in the first appeal, such an effort would likely have been futile, as it is “well-settled that a defense may not be first raised on appeal.” See Suarez Corp. Indus. v. McGraw, 125 F.3d 222, 226 (4th Cir. 1997).