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) _____________________________________________________________ REPLY BRIEF of APPELLANT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ______________________________________________________________ P. DAVID LOPEZ General Counsel EQUAL EMPLOYMENT LORRAINE C. DAVIS OPPORTUNITY COMMISSION Acting Associate General Counsel 131 M Street, N.E. Washington, DC 20507 SUSAN R. OXFORD Tel: (202) 663-4791 Attorney susan.oxford@eeoc.gov TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Summary Judgment Should be Reversed Because a Reasonable Jury Could Find Thompson Contracting Neither Accommodated Yisrael’s Religious Conflict Nor Demonstrated as a Matter of Law that any Accommodation Would Impose Undue Hardship . . . . . . . . . . . . 4 A. A Jury Would Not Be Compelled to Find that Thompson Offered Yisrael Any Accommodation for his Religious Conflict. . . . . . . . 4 B. Yisrael is not at Fault for Thompson’s Failure to Accommodate. . . . 12 C. Thompson Contracting Also Did Not Prove as a Matter of Law that Any Reasonable Accommodation Would Pose an Undue Hardship. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 1. The district court erred in relying on new evidence after denying EEOC any opportunity for supplemental discovery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 2. Even considering Hudson’s declaration, a reasonable jury would not be compelled to find Thompson met its burden to prove undue hardship. . . . . . . . . . . . . . . . . . . . . . 25 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . 32 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases page Beadle v. Hillsborough County Sheriff’s Dep’t, 29 F.3d 589 (11th Cir. 1994) . . . . . . . . . . . . . . . . . . . . .13 Brown v. Polk County, IA, 61 F.3d 650 (8th Cir. 1995) . . . . . . . . . . 29 Chrysler Corp. v. Mann, 561 F.2d 1282 (8th Cir. 1977) . . . . . . . . . . .16 Dennis v. Columbia Colleton Med. Ctr., 290 F.3d 639 (4th Cir. 2002) . . . 9 EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307 (4th Cir. 2008) . . . . . . . . . . . . . . . 4, 5, 6, 14 EEOC v. Ithaca Indus., Inc., 849 F.2d 116 (4th Cir. 1988) (en banc) . . . . . . . . . . . . . . . 14 EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610 (9th Cir. 1988) . . . . . . 15 Heller v. EBB Auto Co., 8 F.3d 1433 (9th Cir. 1993) . . . . . . . . . . . .14 Morrissette-Brown v. Mobile Infirmary Med. Ctr., 506 F.3d 1317 (11th Cir. 2007) . . . . . . . . . . . . . . . . . . 13 Musser v. Gentiva Health Servs., 356 F.3d 751 (7th Cir. 2004) . . . . . . 23 Reeves v. Sanderson Plumbing Prods., 530 U.S. 147 (2000) . . . . . . . . . 9 Sanchez-Rodriguez v. AT&T Mobility Puerto Rico, Inc., -- F.3d --, 2012 WL 745282 (1st Cir. 2012) . . . . . . . . . . . . . .14 Travitz v. Ne. Dep’t ILGWU, 13 F.3d 704 (3d Cir. 1994) . . . . . . . . . . 10 Virts v. Consolidated Freightways Corporation of Delaware, 285 F.3d 508 (6th Cir. 2002) . . . . . . . . . . . . . . . . . . . . .16 Rules Fed. R. Civ. P. 26(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Fed. R. Civ. P. 26(e) . . . . . . . . . . . . . . . . . . . . . . . . 22, 24 Fed. R. Civ. P. 37(c) . . . . . . . . . . . . . . . . . . . . . . . . 22, 24 Fed. R. Evid. 608(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Miscellaneous EEOC v. Thompson Contracting, No. 08-1626 (4th Cir.), EEOC Opening Brief (filed 8/29/2008) . . . . . . . . . . . . . . . 18 EEOC v. Thompson contracting, No. 08-1626 (4th Cir.), EEOC Reply Brief (filed 11/21/2008) . . . . . . . . . . . . . . . 18 INTRODUCTION In its opening brief, the Equal Employment Opportunity Commission argued, first, as a threshold issue, that the district court abused its discretion on remand when it denied EEOC’s motion to strike the declaration of Brandon Hudson and then relied on this new, untested evidence in granting Thompson Contracting summary judgment without allowing any EEOC discovery on the new information contained therein. See EEOC Brief (EEOC-Brf.) at 26-35. EEOC explained that the district court erred both in concluding that Hudson’s declaration did not offer any new evidence and in ruling that EEOC would not be prejudiced by Thompson’s reliance on it. Id. at 30-35. On the merits, EEOC argued that the district court erred in granting summary judgment because a reasonable jury could find, on this record, that Thompson failed to accommodate Banayah Yisrael’s religious conflict and failed to meet its burden under Title VII to prove that any reasonable accommodation would have caused it undue hardship. EEOC-Brf. at 36-53. As EEOC noted, although Thompson knew that Yisrael’s religion prohibited him from working on Saturdays, which is when Thompson occasionally scheduled make-up work, Thompson asked Yisrael to work on three Saturdays and then suspended and eventually discharged him when he would not work on his Sabbath. EEOC argued that a reasonable jury could find Thompson never offered Yisrael any of the alleged “accommodations” on which the district court relied in granting summary judgment. Id. at 37-41. EEOC further argued that a reasonable jury could find Thompson did not meet its burden to demonstrate that accommodating Yisrael’s conflict—by simply excusing him from the occasional Saturday work, seeking a substitute driver, or offering Yisrael a transfer to a general equipment operator position—would have caused any undue hardship on the conduct of Thompson’s business. Id. at 41-51. Finally, EEOC argued that the district court erroneously dismissed EEOC’s claim for injunctive relief. EEOC-Brf. at 54-60. EEOC argued that the record did not support the district court’s inference that Yisrael used marijuana during or following his second period of Thompson employment. Id. at 54-56. EEOC further argued that even if Yisrael was somehow disqualified from reemployment, EEOC would still be entitled to seek injunctive relief to protect other employees from future violations of Title VII. Id. at 56-57. And EEOC argued that Thompson waived this argument, in any event, by not raising it until what was essentially Thompson’s supplemental reply brief on remand, causing EEOC unfair surprise and prejudice. Id. at 57- 60. In its Response Brief (Resp-Brf.), Thompson argued that the district court acted within its discretion in denying EEOC discovery on the new information contained in the Hudson declaration. See Resp-Brf. at 28-30. Thompson further argued that it accommodated Yisrael’s religious conflict by policies that it admits were not available to Yisrael and by measures that a jury could find Thompson never actually implemented. Resp-Brf. at 31-36. Relying on information contained only in Hudson’s declaration, Thompson also argued that the district court properly held that any other reasonable accommodation would have caused Thompson undue hardship as a matter of law. Id. at 36-47. Finally, Thompson defended the district court’s decision to dismiss EEOC’s claim for injunctive relief. Id. at 48-52. Thompson’s arguments all lack merit. Thompson advances one possible view of the factual record. In a case like this, however, where Thompson carries the ultimate burden of proving it could not accommodate Yisrael without undue hardship, Thompson must convince this Court not just that a jury could find “undue hardship,” but that a jury could only find “undue hardship.” Since Thompson’s view is not the only interpretation of the record that a reasonable jury could reach, this Court should reverse summary judgment and remand the case for trial. ARGUMENT Summary Judgment Should be Reversed Because a Reasonable Jury Could Find Thompson Contracting Neither Accommodated Yisrael’s Religious Conflict nor Demonstrated as a Matter of Law that any Accommodation would Impose Undue Hardship. A. A Jury would not be Compelled to find that Thompson Offered Yisrael any Accommodation for his Religious Conflict. Relying on EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307 (4th Cir. 2008), Thompson argues that it offered Yisrael three accommodations: paid personal leave, not scheduling Yisrael for work every make-up Saturday, and “internal substitutions.” Id. at 31-32. A reasonable jury could disagree. Thompson admits paid personal leave was not available to Yisrael, and it is undisputed that Thompson scheduled Yisrael to work every make-up Saturday during the period of time at issue here. And a reasonable jury could find that Thompson either had no policy of permitting internal substitutions or never offered it to Yisrael. Thus, a reasonable jury could reject Thompson’s claim that it offered Yisrael any reasonable accommodation for his religious conflict. Thompson argued, first, that it satisfied its Title VII religious accommodation obligations toward Yisrael based on Thompson’s policy of offering a week of paid leave to hourly employees who have worked for the company for at least a year. See Resp-Brf. at 10, 31. Thompson recognized that Yisrael, a probationary employee who had worked for Thompson for less than three months, was not eligible for this leave, but argued that “this fact ‘does not negate the reasonableness of the accommodation.’” Id. at 31 (citing Firestone, 515 F.3d at 315). Thompson misconstrues Firestone. In Firestone, this Court recounted the numerous ways in which the company’s existing policies and additional ad hoc measures had, for seven or eight months, successfully accommodated employee David Wise’s weekly Sabbath conflict and his frequent work conflict with other religious holidays. See EEOC-Brf. at 38-39 & nn.9 & 10 (citing, inter alia, Firestone, 515 F.3d at 309-10, 315-16, 318-19). One of the existing company policies this Court noted was a seniority system by which Wise could potentially bid into a shift that would minimize his religious conflict. At the time, Wise lacked sufficient seniority to outbid the employees who already occupied the shift he desired. This Court nevertheless recognized Firestone’s seniority system as one part of a multi-faceted network of mechanisms available to accommodate Wise’s religious conflicts, stating: “‘The fact that Wise does not currently benefit from the seniority system does not negate the reasonableness of the accommodation.’” Firestone, 515 F.3d at 315 (citation omitted; emphasis added). This case differs from Firestone in several important ways. First, Wise was part of the Firestone seniority system when he was seeking accommodation. Thus, although Wise lacked sufficient seniority at that moment to obtain the shift he desired, Wise could “take advantage of this policy,” Resp-Brf. at 31, because he was already a participant in Firestone’s seniority system. And because he was already participating in the seniority system, the possibility existed that he might obtain a shift that would not conflict with his religious practice. Yisrael, in contrast, was always ineligible for paid leave. Furthermore, Firestone’s seniority system was simply one element of a network of company policies that Wise had utilized successfully for seven or eight months to accommodate his weekly religious conflict. See Firestone, 515 F.3d at 315-16. A reasonable jury could find, in contrast, that although Yisrael’s religious conflict was much less frequent, Thompson did not offer Yisrael any accommodation. Viewed in proper context, Firestone provides no basis for concluding, as a matter of law, that Thompson accommodated Yisrael through a leave policy for which Yisrael was completely ineligible. Thompson’s argument that it accommodated Yisrael by not scheduling him to work every make-up Saturday (Resp-Brf. at 31-32) is simply false with respect to the period at issue in this litigation. During the eleven weeks of Yisrael’s second period of employment, Thompson scheduled only three make-up Saturdays (December 4 and 18 and February 12). Thompson required Yisrael to work each of these days. A reasonable jury could thus disregard Stafford’s comment that he would “work with [Yisrael] every way possible” given that Stafford scheduled Yisrael to work every make-up Saturday. See Resp-Brf. at 31. Not only does this statement not suggest any “accommodation” by Stafford, it does not even refer to the relevant period of time. Stafford explained in his deposition that he made this statement to Yisrael during Yisrael’s first period of Thompson employment. JA-435. Further, when Stafford was asked whether Thompson had ever been able to accommodate Yisrael’s religious practice, he said he assumed so because he did not recall any attendance infractions during Yisrael’s first period of employment. Id. When pressed to clarify whether any accommodation of Yisrael’s religious conflict by waiving Saturday work occurred during Yisrael’s first, or his second, period of employment, Stafford responded: “I want to say both, but I’m not a hundred percent sure.” JA-435-36. A reasonable jury could conclude from these statements that Thompson accommodated Yisrael, if at all, during Yisrael’s first period of employment. Given Stafford’s equivocation, a jury would certainly not be compelled to conclude that any accommodation continued into Yisrael’s second period of employment. See, e.g., JA-435-36. Thompson appears to suggest that not requiring Yisrael to work the four make-up Saturdays scheduled during his first period of employment demonstrates Thompson accommodated Yisrael’s religious conflict. Resp-Brf. at 32. Thompson’s conduct during Yisrael’s first period of employment, however, does not establish that Thompson offered Yisrael any accommodation during his second period of employment. Nor does Stafford’s testimony that “he considered ‘[a]ny of the CDL drivers that were not working the same day [he] asked [Yisrael] to work’” (JA- 968) demonstrate that Thompson accommodated Yisrael’s religious conflict. Resp-Brf. at 32. A reasonable jury would be entitled to disbelieve Stafford, for several reasons. First, Stafford was unable to identify even one person he asked to work in Yisrael’s place. Second, EEOC presented evidence that Shawn Recore actually was available on the Saturday that precipitated Yisrael’s discharge. According to Stafford, Recore had a “Class A” CDL license and (he thought) drove a lowboy. See JA-793, ¶5. Recore’s timecard showed he was available on Saturday, February 12 (JA-248) and, thus, could have driven in Yisrael’s place. Thompson offered no evidence Stafford ever asked Recore to drive that day. Given Recore’s apparent availability on February 12 and the absence of any evidence that Stafford asked him to stand in for Yisrael that day, a jury could discount Stafford’s vague representation that he considered “[a]ny of the CDL drivers … not working the same day I asked [Yisrael] to work.” Further, as EEOC explained in its opening brief (at 12, 51-52 & n.13), EEOC presented evidence that Stafford was dishonest about Yisrael’s religious conflict when he conferred with Joseph Chukwu, Thompson’s Equal Employment Opportunity official, about Yisrael’s discharge. Specifically, Chukwu testified that when Stafford said he wanted to discharge Yisrael, he claimed only that it was because of Yisrael’s poor attendance and did not mention Yisrael’s religious objection to working on Saturdays. JA-829-833. When Chuckwu received Yisrael’s EEOC charge alleging failure to accommodate his Sabbath observance, Chukwu asked Stafford if he had known Yisrael had a religious conflict with Saturday work. JA-833. Stafford said no, id., even though Stafford admits he knew about Yisrael’s Sabbath beliefs. JA-138-139. Thus, a reasonable jury could reject Thompson’s reliance on Stafford’s vague claim that “he considered ‘[a]ny of the CDL drivers that were not working the day [he] asked [Yisrael] to work,’” JA-968, because, based on Stafford’s dishonesty on a closely related matter (his response to Chukwu’s question about the EEOC charge), the jury could decide Stafford is not credible. See Fed. R. Evid. 608(b) (witness impeachment by conduct demonstrating untruthfulness); cf. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 147 (2000) (“general principle of evidence law that the factfinder is entitled to consider a party’s dishonesty about a material fact as ‘affirmative evidence of guilt’”); Dennis v. Columbia Colleton Med. Ctr., 290 F.3d 639, 648 (4th Cir. 2002) (same).<1> Thompson also contends (Resp-Brf. at 32-33) that it offered Yisrael the accommodation of seeking his own internal substitute. A reasonable jury could find that Thompson never made any such an offer to Yisrael and, indeed, that no such company policy even exists. Apart from a single statement in Brandon Hudson’s contested declaration, nothing in the record supports Thompson’s claim that it encouraged or permitted employees to secure an internal substitute if they could not work on a make-up Saturday. Thompson offers no explanation of where or how this alleged policy was memorialized, no testimony that it was common knowledge among managers or workers, no evidence of how it would work, and no evidence that it was ever communicated to Yisrael or any other hourly employee. Thompson made no mention of this alleged policy in its Response Brief when it described the “host of [company] policies and practices” it says it created to implement its Saturday work requirement. See Resp-Brf. at 8-13, 36. And Thompson’s argument offers no record cites on this point—apparently, because there are none. See id. at 32- 36. Thompson offers only Hudson’s statement that “[d]uring Yisrael’s second term of employment, Thompson welcomed substitutions of drivers for work days that fell on a driver’s Sabbath.” JA-1209 ( ¶14). EEOC asks this Court to strike the Hudson declaration. EEOC-Brf. at 26-35; see also pp.18- 24, infra. In any case, Hudson’s statement is vague and a jury would not be compelled to accept Thompson’s contention. Hudson never explains how the policy worked or was communicated to Thompson’s employees. Critically, Hudson does not state that he or any other Thompson official ever advised Yisrael he could seek a substitute or that Yisrael would have known this through any other means. A jury would not be compelled to find that Thompson ever offered Yisrael the option of finding an internal substitute, even if the jury believed Hudson’s statement that Thompson “welcomed” driver substitutes generally. Significantly, Thompson identifies no Thompson employee who ever utilized this alleged policy. As Thompson acknowledges, for six years, Thompson granted general equipment operator Ivan Larios a religious exemption from all Saturday work. Resp-Brf. at 32. But Thompson never asked Larios to find a substitute; Stafford simply excused him from working on Saturdays, saying “there was no problem.” JA-1025, 1027-29. In sum, on this record, a reasonable jury could reject Thompson’s claim that it “discharged its duty of providing a reasonable accommodation three times over,” see Resp-Brf.. at 33, and could conclude that Thompson did not discharge its duty of reasonable accommodation in even one respect.<2> B. Yisrael is not at Fault for Thompson’s Failure to Accommodate. Thompson attempts to shift blame onto Yisrael for not securing his own substitute driver on the three Saturdays in question or not taking any other steps “to address his dilemma.” Resp-Brf. at 34-36. This argument lacks a factual foundation in the record and is wrong as a matter of law. First, as noted above, a reasonable jury could readily conclude that Thompson never directed Yisrael to seek a substitute driver for any of these Saturdays, nor even told him he was allowed to do so. The only factual support for Thompson’s alleged policy of “welcoming internal substitutions” is the single sentence in Hudson’s contested declaration that does not mention Yisrael, specifically. JA-1209. For reasons discussed below, the Hudson declaration should have been stricken, but even considering Hudson’s statement, Thompson provides no evidence that any Thompson official ever asked Yisrael to find his own substitute or informed him this was possible and offered him a means of doing so. In this sense, this case differs strikingly from those Thompson cites, involving employers that utilize a neutral rotating shift system, inform employees with religious conflicts that they are permitted to swap shifts, and then establish a system by which employees can seek to swap a shift with other employees. See, e.g., Morrissette-Brown v. Mobile Infirmary Med. Ctr., 506 F.3d 1317, 1323 (11th Cir. 2007) (employer satisfied religious accommodation requirement by approving plaintiff’s requests for shift swaps and facilitating identification of employees who might swap shifts by posting master schedule of all employees in central location); Beadle v. Hillsborough County Sheriff’s Dep’t, 29 F.3d 589, 593 (11th Cir. 1994) (employer satisfied religious accommodation requirement by informing plaintiff he could swap shifts with other employees, providing plaintiff with roster sheet of co-worker schedules, and allowing plaintiff to advertise his need for shift swaps during daily roll calls and on department bulletin board); see also Sanchez-Rodriguez v. AT&T Mobility Puerto Rico, Inc., -- F.3d --, 2012 WL 745282, at *1-2, 9-10 (1st Cir. 2012) (where plaintiff’s job involved rotating Saturday shifts, employer satisfied religious accommodation requirement by refraining from disciplining plaintiff for Saturday absences for first six months, permitting him to swap shifts with other employees, and offering two different positions that did not involve Saturday work conflict). Second, Thompson wrongly suggests Yisrael was at fault somehow for failing to take the initiative to find a substitute driver. See Resp-Brf. at 16-19, 34. To the contrary, once an employee informs his employer of the nature and basis of the religious conflict, Title VII requires the employer either to offer a reasonable accommodation or to demonstrate that any reasonable accommodation is impossible without undue hardship. See, e.g., Firestone, 515 F.3d at 312; EEOC v. Ithaca Indus., 849 F.2d 116, 118-19 (4th Cir. 1988) (en banc). To be sure, an employee needs to cooperate with his employer in the search for an accommodation. In such instances, however, it is the employer, not the employee, who is required to initiate this process of bilateral cooperation. See Heller v. EBB Auto Co., 8 F.3d 1433, 1440-41 (9th Cir. 1993) (under Title VII’s required “bilateral cooperation,” “employee’s ‘concomitant duty’ to cooperate … arises only after the employer has suggested a possible accommodation”); Ithaca, 849 F.2d at 118 (employee’s refusal to work on his Sabbath “requires some offer of accommodation by employer[]”); see also EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 615 (9th Cir. 1988) (“burden of attempting an accommodation rests with the employer rather than the employee”). There is no dispute here that Yisrael informed Thompson he could not work on Saturdays because of his religious beliefs. Thus, the accommodation Yisrael needed—not working on Saturdays—was apparent. Thompson could have accommodated Yisrael by simply excusing him from working on Saturdays, or Thompson could have chosen, instead, to seek a substitute driver, to ask Yisrael to find his own internal substitute (and provide a means to do so), or to offer Yisrael a transfer to another position where Saturday absences could be accommodated more readily. Alternatively, Thompson could demonstrate that any of these options would impose an undue hardship on the operation of its business. What Thompson could not do, however, is to shift the responsibility onto Yisrael to devise a solution, on his own, that would be acceptable to Thompson. Yet this is precisely what Thompson is attempting to do by asserting Yisrael failed to secure a substitute driver. Given Thompson never told Yisrael he needed or was permitted to find a substitute driver and never offered Yisrael any means of finding a substitute acceptable to Thompson, Yisrael bore no unilateral responsibility to find a substitute for himself.<3> The cases Thompson cites on this point, Resp-Brf. at 33-36, are inapposite. In Virts v. Consolidated Freightways Corporation of Delaware, 285 F.3d 508 (6th Cir. 2002), for example, the employer had initiated an extended dialog with the plaintiff and his union prior to litigation in an effort to resolve plaintiff’s religious conflict, to no avail. Id. at 512-14. Under those circumstances, the Sixth Circuit stated it was “fatal to plaintiff’s claim” that he sought certain accommodations in his lawsuit that he had never proposed to his employer during the pre-litigation, employer-initiated exploration of alternatives. Id. at 517-18. Here, on the other hand, Thompson never entered into any dialogue with Yisrael before disciplining and discharging him for not working on Saturday, so no opportunity ever arose for Yisrael to suggest any accommodation other than the one he had requested—to be excused from Saturday work. Similarly, the plaintiff in Chrysler Corporation v. Mann, 561 F.2d 1282 (8th Cir. 1977), rebuffed Chrysler’s attempts to work out a solution, declining to explain his religious needs, refusing to use existing leave policies, and choosing, instead, simply to refrain from working on religious holy days. Id. at 1283-84. The plaintiff further declined Chrysler’s offers to waive the resulting punishments. Id. at 1284 n.3. The Eighth Circuit held that, under those circumstances, Chrysler did not violate its Title VII obligations since the employee had essentially stonewalled Chrysler’s accommodation efforts. Id. at 1285-86. Thompson misrepresents EEOC’s position on this point. EEOC does not contend that “Thompson … had to excuse Yisrael from working Saturdays in order to ‘eliminate the conflict.’” Resp-Brf. at 35 (emphasis in original). Rather, EEOC contends that Thompson was required either to excuse Yisrael from working on the occasional make-up Saturday or to demonstrate that any form of reasonable accommodation would have imposed an undue hardship on the conduct of Thompson’s business.<4> See, e.g., EEOC- Brf. at 52-53. C. Thompson Contracting Also Did Not Prove as a Matter of Law that Any Reasonable Accommodation Would Pose an Undue Hardship. 1. The district court erred in relying on new evidence after denying EEOC any opportunity for supplemental discovery. Summary judgment should be reversed because Thompson, having failed to demonstrate as a matter of law that it accommodated Yisrael’s religious conflict, also failed to demonstrate its alternate burden to prove undue hardship as a matter of law. Thompson’s response brief lays out arguments it could properly make to a jury on this point (Resp-Brf. at 36-47), but none of these arguments establishes that, on this record, a reasonable jury could find only that any accommodation would inevitably cause Thompson undue hardship. EEOC detailed Thompson’s failure of proof on this issue in the first appeal in this case, EEOC v. Thompson Contracting, No. 08-1626 (4th Cir. June 2009), demonstrating the substantial gaps in Thompson’s undue hardship evidence. See EEOC Opening Brief, No. 08-1626 (filed 8/29/08), at 24-38; EEOC Reply Brief, No. 08-1626, (filed 11/21/08), at 14-28. On remand, Thompson attempted to fill in these substantial evidentiary gaps by offering, for the first time in this litigation, evidence from Brandon Hudson, a witness Thompson had never identified in its answers to interrogatories or initial disclosure statements as a person with knowledge about this issue. Surprised by this new evidence, EEOC sought—and was originally granted, but then denied—supplemental discovery to test the soundness of Hudson’s factual assertions. The district court’s decision to retract the supplemental discovery originally granted would have imposed no prejudice had the district court then ignored this new evidence in ruling on Thompson’s summary judgment motion. Instead, the district court relied on it significantly in granting summary judgment. See JA-1422, 1429-1431. In its response brief, Thompson offers several defenses of this prejudicial breach of procedural fairness: that Hudson offered relatively little new information in his declaration, that EEOC could have uncovered the same information on its own through other means, and that the district court only relied on it in six places in the court’s decision. Resp-Brf. at 24-28. None of Thompson’s contentions justifies the district court’s reliance on this new and untested evidence. First, there is no merit to Thompson’s argument (Resp-Brf. at 25) that EEOC should not have been surprised when Thompson offered Hudson’s declaration on remand, because Chukwu had mentioned “the vice president” in one of his deposition answers concerning the general topic of “undue hardship.” Chukwu’s deposition response indicated only that Hudson would be part of any determination of “undue hardship,” should such a question ever be presented for decision, not that Hudson had any knowledge concerning Thompson’s contention that accommodating Yisrael’s religious conflict would have imposed an undue hardship. Specifically, Chukwu was asked, in his deposition, to identify “every attempt … [Thompson] made to accommodate an employee’s religious practice,” and he could remember none, other than Ivan Larios. JA-461. Chukwu was then asked, generally, “who would determine whether there would be an undue hardship on the conduct of the company’s business?” and he answered, “[T]he director of operations, myself and the vice president” and explained that, in making such a determination, those three individuals would consider whether someone else could perform the same function as the employee requesting the accommodation and “how much it’s going to cost me to … replace that person.” Id. Chukwu was not asked who had any knowledge about the factual basis for Thompson’s contention that Yisrael’s accommodation request would have imposed an undue hardship. Thus, it is clear that Chukwu was addressing the general issue of requests for religious accommodations and, in that context, was identifying Thompson’s decision makers for determinations of undue hardship generally. EEOC reasonably interpreted Chukwu’s response as indicating that the company vice president would play a role in making a decision concerning “undue hardship” whenever an employee requested a religious accommodation, but not that the vice president had any knowledge of the facts supporting Thompson’s “undue hardship” defense in this litigation. Indeed, there is absolutely no record evidence that Stafford ever consulted Hudson on Yisrael’s reasonable accommodation request or that Hudson was aware of Yisrael’s religious conflict through any other avenue. On the other hand, there is affirmative evidence that Stafford kept even Chukwu completely in the dark until well after Stafford fired Yisrael. As EEOC noted in its opening brief, Thompson’s sworn answers to interrogatories identified only three persons as having knowledge of Thompson’s undue hardship defense with respect to Yisrael—Stafford, Chukwu, and Lowe. See EEOC-Brf. at 27-28. Thompson mistakenly argues that Hudson’s declaration contains no new information. Resp-Brf. at 26-28. To the contrary, it provides information that EEOC sought during discovery, but never received from Thompson’s other witnesses. For instance, EEOC asked Stafford to describe the “financial hardship” or other burdens that would result if a dump truck driver did not work on a Saturday. JA-423-428, 434-439, 444-450. EEOC also asked Stafford what was involved in qualifying additional Thompson employees as replacement dump truck drivers and whether there would be any expense to add them to Thompson’s insurance policy. JA-444-445. Stafford attested that the process included passing a road test and having a clean driving record, but he did not know if there was any added cost to insure additional drivers. JA-445-446. Although EEOC pressed him, Stafford had no other information concerning Thompson’s “undue hardship.” See, e.g., JA-437 (Stafford could not think of “any other business necessities” or “personnel problems” that he had not already explained “that would come into play in accommodating a request not to work on Saturday for religious reasons” and did not believe there were “any financial costs” he had not already mentioned). The information in Hudson’s declaration concerning the process for and cost of qualifying CDL-holders to drive Thompson’s dump trucks is new information concerning which EEOC questioned Stafford during his deposition, to no avail. Thompson suggests it should be able to rely on this newly-proffered information because “EEOC did not follow up with Thompson about its [insurance] carriers in an effort to assess Stafford’s deposition testimony” and “[t]raining is hardly an unexpected step [for Thompson] to take to manage the liability associated with dump truck drivers.” Resp-Brf. at 26. Thompson is mistaken. The court rules place no onus on EEOC to guess whether Thompson omitted information from its discovery answers and then seek an alternate source. The rules of discovery require Thompson to supplement any incomplete or incorrect discovery answers “in a timely manner,” Fed. R. Civ. P. 26(e)(1)(A), or suffer Rule 37(c)’s mandatory sanction of non-use unless nondisclosure was “harmless.” See EEOC-Brf. at 28-29. Here, EEOC had no reason to doubt the completeness of Stafford’s answers, but even if it did, it was still Thompson’s responsibility to answer EEOC’s discovery requests truthfully and completely. See Musser v. Gentiva Health Servs., 356 F.3d 751, 759 (7th Cir. 2004) (party’s ability to obtain undisclosed information through its own efforts does not provide “substantial justification” for other party’s nondisclosure). Thompson is also mistaken that EEOC did not “challenge Thompson’s position that it did not need to produce in discovery ‘a statement of the cost [of the undue hardship] and the method of calculation.’” Resp-Brf. at 27. EEOC asked Thompson about costs with respect to only two specific alternate drivers—Jerome Ragland and Robert Lockley—and EEOC did not move to compel because Thompson fully answered the question. See Resp-Brf. at 3 (citing JA-619-620). In sum, EEOC asked Thompson, during discovery, to provide all of its evidence demonstrating that accommodating Yisrael’s religious belief would have imposed an undue hardship. Much of the information from Hudson’s declaration on which the district court relied was not included in Thompson’s discovery responses, nor was it in Stafford’s affidavit accompanying Thompson’s summary judgment motion (JA-68-70). Under Federal Rule of Civil Procedure 37(c), Thompson cannot belatedly introduce this evidence through a new witness. See EEOC-Brf. at 29-35. Notably, Thompson does not even address the arguments in EEOC’s opening brief (at 29-35) that the district court abused its discretion when it relied on the Hudson declaration in granting summary judgment. EEOC argued that, under Federal Rule of Civil Procedure 37(c), Thompson was barred from relying on Hudson’s declaration because, prior to remand, Thompson failed to identify Hudson as someone with knowledge about the undue hardship defense or to provide the information contained in Hudson’s declaration, as required by Federal Rule of Civil Procedure 26(a) and (e). EEOC-Brf. at 26-29. Instead of addressing these arguments, Thompson argued that the district court properly applied the “Rule 26 factors” when it entered a protective order barring any discovery in connection with Hudson’s declaration. See Resp-Brf. at 28-30. EEOC is not challenging the district court’s entry of a protective order. Rather, EEOC argues that the district court abused its discretion in relying on the Hudson declaration because Thompson’s prior failure to disclose this information (or Hudson’s identity as a person with relevant knowledge) was neither “substantially justified” nor “harmless”—the only exceptions to Rule 37(c)’s sanction barring use of such evidence. EEOC-Brf. at 29-34. Thus, once the district court granted Thompson’s motion for a protective order preventing any supplemental discovery, the district court abused its discretion in relying on the Hudson declaration in granting summary judgment. 2. Even considering Hudson’s declaration, a reasonable jury would not be compelled to find Thompson met its burden to prove undue hardship. As EEOC argued in its opening brief, on this record, a reasonable jury would not be compelled to find that Thompson had established that any accommodation of Yisrael’s Sabbath would have caused it “undue hardship” as defined by the Supreme Court and this Court. Thompson’s evidence—even including Hudson’s untested statements—at most creates a question for the jury. EEOC-Brf. at 41-53. Thompson argues that “the only logical and reasonable inference” from Yisrael’s three Saturday absences in eleven weeks is that “Thompson’s short- handed drivers worked harder, the contract drivers picked up the slack caused by Yisrael’s absence, or a combination of both” and that this would inevitably “result in more than a de minimus cost to Thompson.” Resp-Brf. at 37; see also id. at 38 (arguing that, as a matter of law, excusing Yisrael from Saturday work would “inevitably result[] in an undue hardship”). But even if the record might permit a jury to infer some cost to Thompson that was more than de minimus, the record simply does not support Thompson’s contention that such an inference is the “only logical and reasonable” one a jury might draw. Id. at 37. For instance, there is no record evidence from which a jury could find that Thompson incurred any “cost” in the form of a “premium paid to contractor.” Resp-Brf. at 37. Assuming Thompson is referring to the cost of hiring independent contractor trucks, there is no record evidence—none whatsoever—that Yisrael’s three Saturday absences caused Thompson to incur any such costs. Instead, as EEOC explained in its opening brief (at 5-6), the record evidence indicates: * Thompson regularly hired these much larger “independent contractor” trucks to perform work that Thompson’s five smaller dump trucks could not perform (e.g., during one ten-week period in 2004-2005, Thompson hired 137 contractor trucks on 17 different days—only two of which were Saturdays—for a total cost of more than $53,500) (JA-772, 838- 853); * It cost Thompson more to hire contractor trucks than to run its own dump trucks because, according to Stafford, contractor trucks can “haul more material” and, therefore, are “usually [used] on the big dirt hauls and the stone hauls” (JA-772, 791-792); * to ensure sufficient contractor trucks were available when needed, Stafford scheduled them 48 hours in advance (JA-771); * There is no record evidence that Stafford deviated from his “48-hours-in- advance” practice when he scheduled independent contractor trucks to work on December 18 and February 12 (no contractor trucks were scheduled for December 4). Absent any such evidence, a jury would have to find that Stafford scheduled the contractor trucks for these two Saturdays no later than the mornings of the prior Thursdays, December 16 and February 10; * For all three of these Saturdays, Thompson did not ask Yisrael until Friday to work the next day (Saturday); * There is no record evidence Stafford attempted to secure an additional independent contractor truck after Yisrael said he could not work on Saturday, nor is there any evidence Stafford requested an extra truck on December 16 or February 10 in anticipation of Yisrael’s religious conflict. * There is no record evidence that any contractor truck worked longer to make up for Yisrael’s absence on December 18 or February 12 or that any of Thompson’s regular dump truck drivers worked harder on any of these Saturdays. When asked in his deposition, Stafford could not even say which worksites Yisrael would have been scheduled to work on or what work he would have been scheduled to perform. See JA-141-142. Hudson’s declaration is silent on these points. See JA-1206-1211. Thus, on this record, a jury would have no basis to find that Thompson was required to pay for any independent contractor because of Yisrael’s absences on December 18 and February 12, and the district court’s conclusion to the contrary is pure speculation. Similarly, a jury would not be compelled to find that Thompson experienced any “lost opportunity costs” from Yisrael’s absence on three Saturdays, as Thompson contends. See Resp-Brf. at 37. Stafford was unable to explain what he meant by this when he mentioned it in his deposition, other than he could not have a truck sitting idle in the yard. See JA-423. But since Thompson regularly kept trucks idle in the yard for its own reasons (e.g., JA- 449), a jury would not be compelled, based on Stafford’s testimony, to find that Thompson incurred any actual costs on the three Saturdays Yisrael did not work. Hudson offered the only detailed explanation of “lost opportunity cost” in the record, stating it was the money Thompson otherwise would have charged its client for a day’s use of a Thompson dump truck. JA-1209 ( ¶13). As discussed above, under Federal Rule of Civil Procedure 37(c), the district court should have disregarded Hudson’s statement. See p.24, supra. That the district court instead relied on this evidence to find “undue hardship” (see JA- 1429) further strengthens EEOC’s argument that it was prejudiced by the district court’s failure to apply the Rule 37(c) sanction. Even Hudson’s explanation of “lost opportunity cost” fails to establish undue hardship as a matter of law, because a reasonable jury could reject Thompson’s contention as inconsistent with other record evidence. Thompson claims it suffered hardship when it could not charge its client for Yisrael’s dump truck on February 12. But after Stafford discharged Yisrael on February 15, Thompson chose not to hire another dump truck driver for approximately two months. Such a business decision clearly falls within Thompson’s prerogative as an employer. However, having made the choice to forego voluntarily this contract revenue for the next forty regular work days, a jury would be entitled to disbelieve Thompson’s contention that it experienced any economic harm when Yisrael’s absence—for religious reasons—left Thompson unable to charge its clients that same contract revenue for two prior Saturdays, particularly in light of the fact that Stafford could have asked Recore to work in Yisrael’s place on February 12. Finally, there is no merit to Thompson’s claim that the “only logical … inference” a jury could draw from Yisrael’s three Saturday absences is that it caused Thompson’s other dump truck drivers to “assume[] a disproportionate workload because they did not share Yisrael’s religious beliefs.” See id. at 37. Thompson presented no evidence of this at all, and a jury would not be permitted to make such a finding on this record. See Brown v. Polk County, IA, 61 F.3d 650, 655 (8th Cir. 1995) (to establish undue hardship, employer must show “actual imposition on co-workers” or “disruption of work routine”). Given Stafford’s inability to identify any disruption that Yisrael’s Saturday absences had on Thompson’s ability to complete work for its clients in a timely and satisfactory manner—indeed, given Stafford’s inability even to identify what job site Yisrael would have been assigned to on these dates—a reasonable jury would not be able, much less compelled, to draw any of the inferences Thompson suggests. EEOC offered two other potential accommodations that Thompson never even considered when faced with Yisrael’s Saturday conflict—substitute drivers or transfer. See EEOC-Brf. at 46-51. In arguing both alternatives unreasonable as a matter of law, Thompson relies on the absence of affirmative evidence that substitutes existed (ignoring Shawn Recore); untested evidence from Hudson on the alleged costs of training a substitute; and Thompson’s assumption that Yisrael would have turned down any offer of transfer. Resp- Brf. at 40-47. When faced with Yisrael’s Saturday work conflict, however, Thompson never explored any options; it simply continued to insist Yisrael work. Stafford never inquired to see if there were other experienced dump truck drivers with CDLs within its workforce, nor did Thompson engage Yisrael in a dialogue to see if he would have accepted a transfer to a general equipment operator. JA-446-447. Given Thompson’s failure to explore these options, a jury certainly would not be compelled to find that they were unreasonable as a matter of law. In sum, Thompson fails to demonstrate that a jury could only find, on this record, that accommodating Yisrael’s inability to work on the occasional make-up Saturday would inevitably cause Thompson undue hardship. CONCLUSION For the foregoing reasons, EEOC respectfully urges this Court to strike Hudson’s declaration, to reverse the district court’s orders dismissing EEOC’s claim for injunctive relief and granting summary judgment, and to remand the case for further proceedings. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate 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 April 13, 2012 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains fewer than 7,000 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 2007 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: April 13, 2012 CERTIFICATE OF SERVICE I, Susan R. Oxford, hereby certify that on April 13, 2012, I filed EEOC’s Reply 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 Reply 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> The record contains further evidence of Stafford’s untruthfulness, beyond his misrepresentation to Chukwu in connection with Yisrael’s EEOC charge. After Thompson fired Yisrael, Yisrael applied for state unemployment benefits. In a response that Chukwu drafted—relying on Stafford’s earlier misrepresentation—Thompson opposed Yisrael’s application, claiming Yisrael never told Thompson he objected to working on Saturdays on religious grounds. JA-657. Stafford initialed the response even though he admitted, in his deposition, that he knew the statement that Yisrael never told Thompson he had a religious conflict was, in fact, false. See JA-784-785, 836-837. In its opening brief, EEOC argued that Stafford’s approval of a false statement in Thompson’s opposition to Yisrael’s state unemployment claim— a document Thompson provided EEOC during EEOC’s administrative investigation—was yet another example of Stafford’s deceitfulness, based on which a jury could decide to disbelieve Stafford’s claim that he tried to accommodate Yisrael or that he sought a replacement driver for any of Yisrael’s Saturday absences. EEOC-Brf. at 12, 51-52 & n.13. In the “Statement of Facts” section of its response brief, Thompson asks this Court to disregard this evidence, asserting a statutory privilege under state law and noting that Thompson raised this argument below but the district court never addressed it. See Resp-Brf. at 21-22 & nn.15-17. EEOC contends that Thompson waived any privilege concerning the admissibility of this document when Thompson voluntarily provided it during EEOC’s investigation and then allowed Stafford and Chukwu to be questioned about it during their depositions. See id. at 21 n.17. EEOC further contends that Thompson waived this argument on appeal by not including it in Thompson’s statement of the issues or argument section of Thompson’s appeal brief. See Resp-Brf. at 1, 22-53; Travitz v. Ne. Dep’t ILGWU, 13 F.3d 704, 711 (3d Cir. 1994) (issue not pursued in argument section of brief is abandoned and waived on appeal). Alternatively, given the district court’s failure to address this evidentiary question and the substantial amount of other evidence supporting reversal of summary judgment, EEOC respectfully urges this Court to reverse summary judgment without addressing this question and allow Thompson to raise the question again with the district court on remand, if Thompson so chooses. <2> Thompson does not defend the district court’s reliance on “shift swapping.” See JA-1428. A reasonable jury, in any event, could find there were no “shifts” to “swap” in Thompson’s workplace because Thompson’s employees all worked Monday through Friday, 7:00 a.m. to 5:00 p.m. See EEOC-Brf. at 6, 37-38. <3> That Shawn Recore might have been available to substitute for Yisrael on February 12 underscores why the law places the burden to identify an accommodation on the employer. Thompson would have known whether Recore was available; Yisrael, on the other hand, would have had no way of knowing that Recore was not already working that day. <4> Elsewhere, Thompson’s response brief misstates that, on remand, EEOC “abandoned its position that excusing Yisrael from Saturday work was a reasonable accommodation.” Resp-Brf at 5. EEOC’s position after remand is reflected in EEOC’s supplemental opposition to summary judgment, R.54 at 1-14, which plainly argues that Title VII obligates Thompson to reasonably accommodate Yisrael’s religious belief by excusing him from Saturday work or providing some other accommodation unless Thompson establishes that any accommodation would cause it undue hardship. The statement Thompson noted in its brief was mistakenly included in a footnote in EEOC’s later opposition to Thompson’s application for attorneys’ fees, R.78 at 13 & n.9, but that document does not set forth EEOC’s position on remand.