Tabura v. Kellogg USA , 880 F.3d 544 ( 2018 )

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
January 17, 2018
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
_________________________________
RICHARD TABURA; GUADALUPE
DIAZ,
Plaintiffs - Appellants,
v. No. 16-4135
KELLOGG USA,
Defendant - Appellee.
------------------------------
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Amicus Curiae.
_________________________________
Appeal from the United States District Court
for the District of Utah
(D.C. No. 1:14-CV-00014-TC-PMW)
_________________________________
Gene C. Schaerr, Schaerr Duncan LLP, Washington, D. C. (Stuart Kyle Duncan and
Michael T. Worley, Schaerr Duncan LLP, Washington, D. C.; Alan Jay Reinach, Church
State Council, Westlake Village, California; Erik Strindberg and Matt Harrison,
Strindberg & Scholnick LLP, Salt Lake City, Utah; and Todd R. McFarland, General
Conference of Seventh Day Adventists, Silver Spring, Maryland, with him on the briefs),
for Plaintiffs-Appellants.
Timothy P. Monsma, Varnum LLP, Grand Rapids, Michigan (Lawrence J. Murphy,
Varnum LLP, Grand Rapids, Michigan; Matthew M. Durham and Lauren A. Shurman,
Stoel Rives LLP, Salt Lake City, Utah, with him on the briefs), for Defendant-Appellee.
Gail S. Coleman (P. David Lopez, Jennifer S. Goldstein, and Margo Pave, with her on the
brief), Equal Employment Opportunity Commission, Washington, District of Columbia,
for Amicus Curiae.
_________________________________
Before KELLY, EBEL, and BACHARACH, Circuit Judges.
_________________________________
EBEL, Circuit Judge.
_________________________________
Plaintiffs Richard Tabura and Guadalupe Diaz (“Plaintiffs”) are Seventh Day
Adventists who honor the Sabbath by refraining from work each week from Friday at
sundown through sundown Saturday. That religious practice conflicted with their job
schedules at a food production plant operated by Defendant Kellogg USA, Inc.
(“Kellogg”). Eventually Kellogg terminated each Plaintiff for not working their
Saturday shifts. Plaintiffs allege that in doing so, Kellogg violated Title VII of the
Civil Rights Act by failing to accommodate their Sabbath observance. Both sides
moved for summary judgment. The district court denied Plaintiffs’ motion and
granted Kellogg summary judgment, concluding as a matter of law both that Kellogg
did reasonably accommodate Plaintiffs’ religious practice and, alternatively, that
Kellogg could not further accommodate their Sabbath observance without incurring
undue hardship. We conclude, on the record before us, that the district court erred in
granting Kellogg summary judgment; however, on that same record, the district court
did not err in denying Plaintiffs summary judgment. Having jurisdiction under 28
U.S.C. § 1291, therefore, we REVERSE summary judgment for Kellogg and
REMAND for further proceedings.
2
I. BACKGROUND
When Plaintiffs began working at the food production plant in Clearfield,
Utah, they worked Monday through Thursday, ten hours a day. Plaintiffs continued
with that schedule after Kellogg took over the plant in 2007. In March 2011,
however, Kellogg changed its shift schedule, adopting “continuous crewing” by
dividing the plant’s workforce into four shifts, designated A, B, C, and D. Each shift
worked twelve hours a day for two or three days, and then would have two or three
days off. Tabura and Diaz worked on Shift A, a day shift that included
approximately twenty-five to thirty employees who worked from 6 a.m. to 6 or 6:30
p.m. Tabura was among the twelve to fifteen employees on Shift A who worked in
processing; Diaz and the others worked in packaging. Shift A was paired with Shift
C, whose members worked at night, from 6 or 6:30 p.m. to 6 or 6:30 a.m. B and D
Shifts were similarly paired, one working days and the other nights when Shifts A
and C were off.
Each of the four shifts had to work every other Saturday, or twenty-six
Saturdays each year. Plaintiffs informed Kellogg that they could not work on
Saturdays because it was their Sabbath. During the winter months, Plaintiffs had a
further conflict finishing their shifts on Fridays when the sun set before their shift
ended. Kellogg permitted Plaintiffs to avoid these scheduling conflicts by using paid
vacation and sick/personal time and arranging to swap shifts with other employees.
These options were available to any employee who wanted to take a day off for any
reason.
3
Although Plaintiffs could swap shifts with other workers, there were
difficulties in doing so. Plaintiffs had to arrange their own swaps, the swapping
employees had to be qualified to perform each other’s jobs, and Kellogg had to
approve the swap. Swapping was further complicated because, for safety reasons,
Kellogg would not permit an employee to work more than thirteen straight hours, so
Plaintiffs could not swap with anyone on C Shift, the night shift that followed
Plaintiffs’ Shift A. Instead, Plaintiffs had to find someone from either Shift B or D.
But Plaintiffs were not at the plant at the same time as those shifts, and the D night
shift members would have had to alter their sleep schedules in order to work the A
day shift.
Kellogg assessed disciplinary points against any employee who missed part or
all of a scheduled work day without taking paid time off or trading shifts with
another employee, or who failed to give adequate notice of an absence: four points
for an absence for which the employee did not give Kellogg at least two hours’
notice, two points for an absence that was not pre-approved if the employee called in
at least two hours before his shift began, and one point for arriving late, leaving
early, or taking too long a lunch break. Accumulating too many points would trigger
progressive disciplinary measures: Generally ten points would result in a verbal
warning, twelve points would result in a written warning, and fourteen points would
result in a “final warning.” Kellogg would fire an employee if he accumulated
sixteen disciplinary points in any twelve-month period, once the progressive
disciplinary steps had been exhausted.
4
A. Richard Tabura
Tabura’s job on Shift A was to measure spices. He annually earned 160 hours
of paid time off (vacation and sick/personal days), which would cover a little over
thirteen of the twenty-six twelve-hour Saturday shifts he would have to work in a
year. And if he timely informed Kellogg he was going to take off the other thirteen
Saturdays without pay, Tabura would accumulate twenty-six disciplinary points in a
twelve-month period, well over the sixteen points that would result in his
termination. Tabura, therefore, had to find other qualified workers to swap shifts
with him. Tabura was able to arrange only three shift swaps. But those employees
either were not qualified to do Tabura’s job, or vice versa, so he could not continue
swapping with them. When Tabura amassed seventeen disciplinary points in a
twelve-month period—many for not working on his Sabbath, but a few for other
reasons—and after exhausting the progressive disciplinary steps, Kellogg fired
Tabura in March 2012, a year after Kellogg went to “continuous crewing.”
B. Guadalupe Diaz
Diaz worked on Shift A placing frozen vegetarian burgers in bags and
conducting quality control. She earned 200 hours of paid time off each year
(vacation and sick/personal days), which would almost cover seventeen of the
twenty-six Saturdays she had to work each year.1 And if she timely informed
1
In their appellate brief, Plaintiffs assert that Tabura and Diaz each had 160 hours of
paid time off, citing Kellogg’s policy manual. But the parties’ undisputed facts
before the district court indicated, instead, that Diaz earned 200 hours paid time off
annually.
5
Kellogg that she was going to take the remaining nine Saturdays off without pay,
Diaz would accumulate eighteen disciplinary points within a twelve-month period,
just over the sixteen points for which Kellogg would fire her.
When Kellogg first went to “continuous crewing,” Diaz arranged to swap her
Saturday shifts for the Sunday shifts assigned to another employee who observed the
Sabbath on Sunday. That worked well for several months until the other employee
left Kellogg. After that, Diaz spoke to several other employees about swapping
shifts, without luck. At one point, she was able to arrange for another employee to
cover her shift for a single Saturday.
Diaz refused to use her vacation and paid time off in order to avoid working on
Saturdays. She chose, instead, to use her vacation time to visit her gravely ill sister,
and to save her sick time for when she was ill. After Diaz accumulated more than
sixteen disciplinary points for missing Saturday shifts, and after she exhausted the
progressive discipline steps, Kellogg fired Diaz in May 2012.
C. This litigation
Plaintiffs sued Kellogg under Title VII, 42 U.S.C. §§ 2000e through 2000e-17,
asserting three claims for relief: 1) disparate treatment based on religion; 2) failure to
accommodate Plaintiffs’ Sabbath observance; and 3) retaliation. The parties filed
cross-motions for summary judgment. The district court denied Plaintiffs’ motion
and granted Kellogg summary judgment on each of these three claims. On appeal,
Plaintiffs challenge the district court’s rulings only as to their failure-to-
accommodate claim. They argue that the district court erred both in granting Kellogg
6
summary judgment on that claim and in denying Plaintiffs summary judgment.2 As
explained below, we conclude that neither side is entitled to summary judgment.
II. STANDARD OF REVIEW
This court reviews the district court’s summary judgment decisions de novo.
See Owings v. United of Omaha Life Ins. Co., 873 F.3d 1206, 1212 (10th Cir. 2017).
A court “shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “Where, as here, we are presented with cross-motions
for summary judgment, we must view each motion separately, in the light most
favorable to the non-moving party, and draw all reasonable inferences in that party’s
favor.” Fox v. Transam Leasing, Inc., 839 F.3d 1209, 1213 (10th Cir. 2016) (internal
quotation marks omitted).
III. DISCUSSION
Title VII makes it “unlawful . . . for an employer . . . to fail or refuse to
hire or to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's . . . religion . . . .” 42 U.S.C.
§ 2000e-2(a)(1). “The term ‘religion’ includes all aspects of religious
observance and practice, as well as belief, unless an employer demonstrates
that he is unable to reasonably accommodate . . . an employee’s or prospective
2
On appeal, the Equal Employment Opportunity Commission (“EEOC”) filed an
amicus brief on Plaintiffs’ behalf and participated in oral argument.
7
employee’s religious observance or practice without undue hardship on the
conduct of the employer’s business.” Id. § 2000e(j). Title VII, thus, requires
that “an employer, short of ‘undue hardship,’ make ‘reasonable
accommodations’ to the religious needs of its employees.” Trans World
Airlines, Inc. v. Hardison, 432 U.S. 63, 66 (1977) (“TWA”).3
The questions presented here, then, are whether Kellogg reasonably
accommodated Plaintiffs’ religious practice of not working on their Sabbath
and, if not, whether Kellogg could have done so without undue hardship to its
business. A version of the McDonnell Douglas 4 burden-shifting analysis aids
0F
us in addressing these questions. See Thomas v. Nat’l Ass’n of Letter
Carriers, 225 F.3d 1149, 1155-56 & 1155 n.6 (10th Cir. 2000). At the first
step of that analysis, it is the employee’s burden to establish a prima facie
claim by showing that 1) the employee has a bona fide religious belief that
conflicts with a job requirement, 2) the employee informed the employer of
this conflict; and 3) the employer fired the employee for failing to comply with
the job requirement. See id. at 1155. The parties do not challenge this
rendition of a prima facie failure-to-accommodate claim.
3
The Supreme Court, in EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct.
2028, 2031-32 (2015), indicated that a “failure to accommodate” claim is a claim for
“disparate treatment” and thus must ultimately satisfy the general elements of a
“disparate treatment” claim.
4
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
8
Here, Kellogg assumed, for purposes of summary judgment, that Plaintiffs
each made a prima facie failure-to-accommodate claim: 1) Each Plaintiff has a bona
fide religious practice—observing the Sabbath by refraining from work, beginning on
Friday at sundown through sundown on Saturday—that conflicted with Kellogg’s
requirement that its production employees work every other Saturday; 2) each
Plaintiff informed Kellogg of this conflict; and 3) Kellogg fired Plaintiffs for failing
to work their scheduled Saturday shifts.5 The district court accepted Kellogg’s
limited concession, for summary judgment purposes, that each Plaintiff established a
prima facie claim; we do, too, for purposes of this appeal. See Lee v. ABF Freight
Sys., Inc., 22 F.3d 1019, 1022 (10th Cir. 1994).
The burden then shifted to Kellogg 1) to rebut an element of Plaintiffs’ prima
facie claims; 2) to show that it provided a reasonable accommodation for Plaintiffs’
religious practice; or 3) to show that it could not offer a reasonable accommodation
without undue hardship. Thomas, 225 F.3d at 1156. In granting Kellogg summary
5
Despite conceding that each Plaintiff made a prima facie claim, on appeal Kellogg
points out that it fired Tabura after he amassed more than sixteen disciplinary points,
and Kellogg assessed the last two points, not when Tabura missed a Saturday shift,
but instead when he clocked in late after lunch on two occasions. Even so, there is
evidence in the record from which a jury could find that all but two of the sixteen
disciplinary points leading to Tabura’s termination were for missing his Saturday
shifts. Moreover, other circuits conclude that a plaintiff can satisfy the third prong of
his prima facie claim by showing he was disciplined or threatened with termination,
rather than actually being fired, for failing to comply with a work requirement that
conflicts with his religious practice. See, e.g., Baker v. Home Depot, 445 F.3d 541,
546 (2d Cir. 2006); Cooper v. Oak Rubber Co., 15 F.3d 1375, 1379 n.1 (6th Cir.
1994). We do not have to rule definitively on that issue, however, because in any
event, Kellogg cannot now retract its concession in the district court that, for
purposes of the summary-judgment motions, Tabura made a prima facie claim.
9
judgment, the district court concluded, as a matter of law, that Kellogg reasonably
accommodated Plaintiffs’ Sabbath observance and, alternatively, that Kellogg would
incur an undue hardship if it further accommodated their religious practice. We
disagree on both counts.
A. Reasonable accommodation
1. Relevant law
a. Reasonableness of an accommodation
Title VII requires that “an employer, short of ‘undue hardship,’ make
‘reasonable accommodations’ to the religious needs of its employees.” TWA, 432
U.S. at 66. “Accommodate . . . means . . . allowing the plaintiff to engage in her
religious practice despite the employer’s normal rules to the contrary.” Abercrombie
& Fitch, 135 S. Ct. at 2032 n.2; see also US Airways v. Barnett, 535 U.S. 391, 400
(2002) (Americans with Disabilities Act (“ADA”) case).
In this case, an accommodation will not be reasonable if it only provides
Plaintiffs an opportunity to avoid working on some, but not all, Saturdays. See
Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 70 (1986). Nor would it be
reasonable if Kellogg only provided Plaintiffs with an opportunity to delay their
eventual termination. See id. at 70-71; see also Pinsker v. Joint Dist. No. 28J of
Adams & Arapahoe Cntys., 735 F.2d 388, 390-91 (10th Cir. 1984) (upholding trial
court’s finding that employer’s leave policy reasonably accommodated employee’s
need not to work on several holy days where the policy “jeopardized neither [the
employee’s] job nor his observation of religious holidays”).
10
On the other hand, to be reasonable, an accommodation need not provide a
“total” accommodation; that is, Kellogg is not required to guarantee Plaintiffs will
never be scheduled for a Saturday shift, nor is Kellogg required to provide an
accommodation “that spares the employee any cost whatsoever,” Pinsker, 735 F.2d at
390-91; see also Brener v. Diagnostic Ctr. Hosp., 671 F.2d 141, 145-46 & 146 n.3
(5th Cir. 1982) (holding that, although “[o]f course, an employee is not required to
modify his religious beliefs,” “[a] reasonable accommodation need not be on the
employee’s terms, only”).
“[A]ny reasonable accommodation by the employer is sufficient to meet its
accommodation obligation.” Ansonia, 479 U.S. at 68. An employee is not entitled to
the accommodation of his choice. Id. Once the employer has provided a reasonable
accommodation, it “need not further show that each of the employee’s alternative
accommodations would result in undue hardship.” Id.
b. Inapplicable or unhelpful tests proposed by the parties
Plaintiffs and Amicus EEOC attempt to engraft additional broad rules that
would complicate this otherwise straightforward case-specific analysis. We decline
to adopt their proffered per se rules, at least in the factual context of this case. Nor
do we agree with Plaintiffs and the EEOC that the Supreme Court has, in
Abercrombie & Fitch, changed the straightforward statutory analysis called for here.
11
i. Analyzing whether a reasonable accommodation is a
“complete” or “total” accommodation is not helpful here
Plaintiffs and Amicus EEOC first invite this circuit to adopt a per se rule,
which they contend several other circuits already employ, requiring that, to be
reasonable, an accommodation must “eliminate” the conflict between the employee’s
religious practice and his work requirements. At times, Plaintiffs add adjectives,
arguing an accommodation must “actually” or “totally” or “fully and completely”
eliminate a conflict. (Aplt. App. 88-90, 93, 335; Aplt. Br. 34, 39.) But Title VII
expressly requires only that an employer “reasonably accommodate” an employee’s
religion, 42 U.S.C. § 2000e(j). See EEOC v. Firestone Fibers & Textiles Co., 515
F.3d 307, 313 (4th Cir. 2008) (rejecting argument that Title VII requires employer
“to totally accommodate” employee’s religious practices). Determining what is
reasonable is a fact-specific determination that must be made on a case-by-case basis,
Thomas, 225 F.3d at 1157 n.8. Plaintiffs’ absolute rule would read “reasonably” out
of the statute. Adopting a per se “elimination” rule that applies across all
circumstances is not helpful to determining whether an accommodation is reasonable.
Instead it unnecessarily complicates the question of reasonableness and begs
additional questions, including what is meant by “eliminate” or “totally” eliminate or
“completely” eliminate.
This total elimination idea stems from general language in Ansonia indicating
that an accommodation that “eliminates the conflict between employment
12
requirements and religious practices” would be reasonable. 479 U.S. at 70. 6 The
3F
Court, however, in Ansonia did not hold the reciprocal, that an accommodation could
never be reasonable if it failed totally and under every conceivable fact scenario to
eliminate every conflict or all tension between reasonable work requirements and
religious observation. In fact, few things in life can be conflict-free and Title VII
requires only a reasonable accommodation between religion and employment
obligations. See Sturgill v. United Parcel Serv., Inc., 512 F.3d 1024, 1030-31 (8th
Cir. 2008).7
Furthermore, the Supreme Court in Ansonia did not require an accommodation
to be without cost to the employee. In Ansonia, an employee needed six days off for
religious observance. 479 U.S. at 62-63. The governing collective bargaining
agreement provided employees with three paid days off for religious observance, but
prohibited an employee from using other paid time off for religious reasons. Id. at
63-64. The Supreme Court ultimately remanded that case for further factual inquiry
6
The EEOC also points to its own compliance manual, which “states that an
‘[e]mployer violates Title VII if it offers only a partial accommodation where full
accommodation would not pose an undue hardship.’” (EEOC Br. 11 (quoting EEOC
Compliance Manual § 12 (Religious Discrimination) (July 22, 2008))). We consider
this argument, too, although the EEOC’s Compliance Manual “is not entitled to
special deference.” EEOC v. Tricore Reference Labs., 849 F.3d 929, 939 (10th Cir.
2017).
7
Sturgill held that “[w]hat is reasonable depends on the totality of the circumstances
and therefore might, or might not, require elimination of a particular, fact-specific
conflict.” 512 F.3d at 1030. The First Circuit has cited Sturgill and this standard.
See Sanchez-Rodriguez v. AT&T Mobility Puerto Rico, Inc., 673 F.3d 1, 12 (1st Cir.
2012). In addition, the Fourth Circuit, as previously mentioned, has rejected the
“elimination” standard. See Firestone Fibers & Textiles, 515 F.3d at 313.
13
into whether the employer’s accommodation was reasonable. Id. at 66, 70. In doing
so, however, the Court importantly noted that the employer’s policy of requiring an
employee
to take unpaid leave for holy day observance that exceeded the amount
allowed by the collective-bargaining agreement, would generally be a
reasonable one. In enacting [42 U.S.C. § 2000e(j)], Congress was
understandably motivated by a desire to assure the individual additional
opportunity to observe religious practices, but it did not impose a duty
on the employer to accommodate at all costs. [TWA], 432 U.S. 63 . . .
(1977). The provision of unpaid leave eliminates the conflict between
employment requirements and religious practices by allowing the
individual to observe fully religious holy days and requires him only to
give up compensation for a day that he did not in fact work. Generally
speaking, “[t]he direct effect of [unpaid leave] is merely a loss of
income for the period the employee is not at work; such an exclusion
has no direct effect upon either employment opportunities or job status.”
Nashville Gas Co. v. Satty, 434 U.S. 136, 145 . . . (1977).
Ansonia, 479 U.S. at 70-71 (emphasis added; citing TWA, 432 U.S. 63).
Several circuits have applied this “elimination” language in a specialized
context where an employee had two religious practices that conflicted with his job
requirements, but the employer attempted to accommodate only one of those two
practices. For example, in Smith v. Pyro Mining Co., the Sixth Circuit held that,
while the employer attempted to accommodate its employee’s religious practice of
not working on the Sabbath, by permitting the employee to ask others to trade shifts,
the employer did not attempt to accommodate the employee’s second conflict, his
religious belief that it is a sin to ask others to work on the Sabbath. 827 F.2d 1081,
1088 (6th Cir. 1987). Thus, the Sixth Circuit concluded the employer’s attempted
14
accommodation in that case failed to eliminate both conflicts. Id.8 References to
“eliminate,” as well as “partial” or “incomplete” accommodations make sense in the
situations addressed by these cases, but that is not the situation here, where Plaintiffs
have only a single conflict.
Some cases invoking the “elimination” language do so in the unremarkable
situation where the accommodation does eliminate the conflict.9 In Cosme v.
Henderson, on the other hand, the Second Circuit held that “to be reasonable” under
Title VII “the proposed accommodation had to have eliminated the conflict.” 287
F.3d 152, 159 (2d Cir. 2002). Even so, the Second Circuit went on to consider
whether other factors, nevertheless, would make unreasonable an accommodation
that eliminated the conflict. Id. at 159-60 (ultimately upholding district court’s
finding, made after bench trial, that employer reasonably accommodated employee’s
8
See also Baker v. Home Depot, Inc., 445 F.3d 541, 547-48 (2d Cir. 2006) (holding
scheduling employee for later shift on Sunday so he could attend church did not
eliminate conflict with his second religious practice of not working at all on Sunday,
his Sabbath); Cooper, 15 F.3d at 1379 (6th Cir.) (same); EEOC v. Universal Mfg.
Corp., 914 F.2d 71, 73-74 (5th Cir. 1990) (holding employer did not reasonably
accommodate employee’s religious practices, where employer accommodated
employee’s request to attend religious festival during scheduled work shift but did
not address employee’s second religious practice of refraining from work during the
week of the festival).
9
See Porter v. City of Chi., 700 F.3d 944, 951-53 (7th Cir. 2012) (holding
accommodation—changing to late shift—that eliminated conflict by allowing
employee to attend religious services was reasonable); Rodriguez v. Chi., 156 F.3d
771, 775-76 (7th Cir. 1998) (holding police department’s offer for officer, who
objected for religious reasons to being assigned to guard abortion clinic, to transfer to
another district that would not require such duty was a reasonable accommodation
because it would have eliminated conflict).
15
Sabbath observance). Still other courts simply invoke Ansonia’s language that a
reasonable accommodation eliminates the conflict, generally and without further
elaboration, and then consider more specifically, as we do here, whether the
accommodation at issue was reasonable under the circumstances of that particular
case, without further applying the term “eliminate.”10
In sum, courts applying language indicating that, to be reasonable, an
accommodation must “eliminate” a conflict have done so in different ways. Further,
in most cases it is not clear that these courts reached any different result than if they
simply considered whether the accommodation was reasonable. In EEOC v. Ilona of
Hungary, Inc., for example, the Seventh Circuit held that offering Jewish employees
another day off instead of allowing them to take off Yom Kippur was not a
reasonable accommodation “because it does not eliminate the conflict between the
employment requirement and the religious practice.” 108 F.3d 1569, 1576 (7th Cir.
1996). We doubt if that case would have come out differently if the court simply
considered whether the employer’s proffered accommodation was reasonable.
10
See Walden v. Ctrs. for Disease Control & Prevention, 669 F.3d 1277, 1293 (11th
Cir. 2012) (holding, after stating that a reasonable accommodation eliminates the
conflict, that employer reasonably accommodated employee counselor, whose
religious views precluded her from counselling individuals involved in a same sex
romantic relationship, by removing employee from counselling position and offering
to help her find new, non-counselling position within the agency); Morrissette-Brown
v. Mobile Infirmary Med. Ctr., 506 F.3d 1317, 1318, 1320-24 (11th Cir. 2007) (after
stating that “a reasonable accommodation is one that eliminates the conflict,”
upholding district court’s factual finding, made after bench trial, that employer
reasonably accommodated employee’s Sabbath observance through, among other
things, rotating shifts and by permitting employee to swap shifts and providing her
with information as to her co-workers’ schedules); see also Wright v. Runyon, 2 F.3d
214, 217 (7th Cir. 1993).
16
In any event, we see no need to adopt a per se rule requiring that an
accommodation, to be reasonable, must eliminate, or totally eliminate, or completely
eliminate, any conflict between an employee’s religious practice and his work
requirements. The statute requires the accommodation to be reasonable and
ultimately the question of whether an accommodation is reasonable must be made on
a case-by-case basis, grounded on the specific facts presented by a particular
situation. See Thomas, 225 F.3d at 1157 n.8; United States v. City of Albuquerque,
545 F.2d 110, 115 (10th Cir. 1976). Further gloss on that statutory requirement adds
only confusion and complexity rather than clarity.
ii. A neutral employment policy may satisfy the need for a
reasonable accommodation
Plaintiffs and Amicus EEOC further suggest another per se rule, that Kellogg
cannot accommodate their religious observance only through a neutral policy; that is,
by the same policies available to any employee who wanted to take a day off for any
reason. In making this argument, Plaintiffs and the EEOC rely on language from
Abercrombie & Fitch. But the language on which they rely does not support such a
per se rule.
As an initial matter, Abercrombie & Fitch addressed a different issue than we
have here. In Abercrombie & Fitch, the issue was one of motivation—specifically,
may an employer decline to hire an applicant when the employer is motivated to
avoid the future need to accommodate that prospective employee’s religious needs.
See 135 S. Ct. at 2030-33. Our case, by contrast, presents a question of the
17
effectiveness of the accommodation presented by the employer. It is readily apparent
that those are two different inquiries.
The EEOC and Plaintiffs focus on the following language from Abercrombie
& Fitch: After noting that, under Title VII, “religious practice is one of the protected
characteristics that cannot be afforded disparate treatment and must be
accommodated,” the Supreme Court stated
Nor does the statute limit disparate-treatment claims to only those
employer policies that treat religious practices less favorably than
similar secular practices. Abercrombie's argument that a neutral policy
cannot constitute “intentional discrimination” may make sense in other
contexts. But Title VII does not demand mere neutrality with regard to
religious practices—that they be treated no worse than other practices.
Rather, it gives them favored treatment, affirmatively obligating
employers not “to fail or refuse to hire or discharge any individual . . .
because of such individual’s” “religious observance and practice.” An
employer is surely entitled to have, for example, a no-headwear policy
as an ordinary matter. But when an applicant requires an
accommodation as an “aspec[t] of religious . . . practice,” it is no
response that the subsequent “fail[ure] . . . to hire” was due to an
otherwise-neutral policy. Title VII requires otherwise-neutral policies to
give way to the need for an accommodation.
Id. at 2034.
This is simply a summary that recognizes an employer cannot take refuge
behind a neutral policy if something more is required reasonably to accommodate a
religious need. An employer can, of course, meet its obligation to accommodate its
employees’ religious practice by using a neutral policy, so long as that policy
reasonably accommodates the employee’s religious needs. Nothing in Title VII
requires the accommodation uniquely to target a religious concern. See City of
Albuquerque, 545 F.2d at 113-14 (upholding district court’s factual finding that fire
18
department’s “fairly liberal time off policy,” which was available to any employee,
reasonably accommodated fire fighter’s weekly Sabbath observance). But, on the
other hand, if a general policy does not amount to a reasonable accommodation of the
employee’s religious needs, then merely having a neutral employment policy will not
absolve the employer of its Title VII obligation reasonably to accommodate its
employee’s religious practices (short of an undue hardship). See Barnett, 535 U.S. at
397-98 (addressing reasonable accommodation under the ADA). “Were that not so,
the ‘reasonable accommodation’ [requirement] could not accomplish its intended
objective.” Id.; see also Abercrombie & Fitch, 135 S. Ct. at 2034 (“Title VII requires
otherwise-neutral policies to give way to the need for an accommodation.”).
2. Applying this relevant law to this case
We turn, then, to the specific circumstances at issue here, asking, as Title VII
directs, whether Kellogg reasonably accommodated Plaintiffs’ conflict between
observing the Sabbath and their work schedules. Kellogg sought to accommodate
Plaintiffs’ Sabbath observance through a combination of allowing them to use their
vacation and other paid time off, as well as permitting Plaintiffs to swap shifts with
other employees. Such a combination might, under the facts of a particular case,
reasonably accommodate an employee’s Sabbath observance. See Thomas, 225 F.3d
at 1156-57; City of Albuquerque, 545 F.2d at 113-14. But whether an
accommodation is reasonable in a given circumstance is ordinarily a question of fact
to be decided by the fact finder. See City of Albuquerque, 545 F.2d at 114-15;
19
Will. v. S. Union Gas Co., 529 F.2d 483, 488 (10th Cir. 1976). That is the case
here.11
Subject to a reasonableness analysis, an employee may be required to use
vacation or other paid time off to avoid conflict with religious obligations. See City
of Albuquerque, 545 F.2d at 113-14 (10th Cir.). Here, however, even if Plaintiffs
used all of their vacation and other paid time off, that would still have been
insufficient to avoid working some scheduled Saturdays, even when considered along
with accruing disciplinary points short of termination. Kellogg, of course, also
permitted Plaintiffs to swap shifts with others to avoid working their Sabbath. The
reasonableness of the shift-swapping accommodation, however, as well as the
reasonableness of the combination of taking paid time off and swapping shifts, are
critical disputed issues of material fact in this case that a jury must resolve.
11
Based on this Court’s earlier decisions in City of Albuquerque and Thomas,
Kellogg incorrectly asserts a per se rule that the accommodations it offered Plaintiffs
are reasonable as a matter of law. In City of Albuquerque, however, this Court
upheld the district court’s factual finding, made after a trial, that the fire department
reasonably accommodated its employee’s Sabbath observance. 545 F.2d at 111, 113-
14. In Thomas, this Court affirmed summary judgment for the employer (without
requiring a trial) where the employer permitted the employee to use paid leave to
avoid working on his Sabbath, would have approved voluntary shift swaps when the
employee could arrange them, and unsuccessfully sought a waiver from the union to
change his schedule. 225 F.3d at 1156. In Thomas, however, it was undisputed that
the additional accommodations the employee suggested that would enable him to
avoid having to work any Sabbath would have violated an agreement between the
union and the employer. See id. at 1156-57. And Title VII’s requirement that an
employer reasonably accommodate an employee’s religious practices does not
obligate the employer to violate a collective bargaining agreement. See TWA, 432
U.S. at 83 n.14. Here, by contrast, there is no collective bargaining agreement that
restricts the accommodations Kellogg can offer.
20
Those disputes are, in part, informed by the disputed facts surrounding the
difficulty Plaintiffs had in arranging voluntary swaps with other, qualified employees
in the context of Kellogg’s “continuous crewing” employment practice. See
McGuire v. Gen. Motors Corp., 956 F.2d 607, 608-10 (6th Cir. 1992) (reversing
summary judgment and remanding for trial on question of whether employer’s
accommodation, that permitted employee to swap shifts in order to avoid working on
his Sabbath, was reasonable in light of demonstrated difficulty employee had in
arranging such voluntary shift swaps).
There is evidence indicating that the universe of qualified employees with
whom each Plaintiff could swap shifts was quite limited. Plaintiffs could not swap
shifts with anyone on Shift C. Kellogg’s management further acknowledged it would
have been “challenging” for Plaintiffs to swap with anyone on the other night shift, D
Shift. (Aplt. App. 971.) (In fact, Tabura testified that his supervisor told Tabura that
he could not swap with D Shift workers.) That left B Shift.
Tabura went to the plant during B Shift and sought to trade shifts with those
workers and further asked Shift B supervisors if they knew of any employees who
might be willing to swap shifts. But there were only approximately twelve to fifteen
processing employees, like Tabura, on a shift. Furthermore, processing workers were
not trained and qualified to perform all processing jobs. To become qualified to
perform a particular job, an employee had to apply, be selected, and then study and
train for two to four weeks before passing a test. Tabura identified three qualified
spice room technicians that he asked to trade shifts; they each usually declined.
21
Tabura was able to arrange a total of three swaps, but it turned out he was unable to
do the jobs of two of those three swapping employees.
As for Diaz, there were similarly only about twelve to fifteen packaging
employees like her on a shift. Those employees, too, had to be trained and certified
for their particular jobs and were not cross-trained on every packaging job. Diaz
testified that she knew of four employees who were qualified to do her job, but only
two were on shifts other than hers. As soon as Kellogg announced it was going to go
to “continuous crewing,” Diaz arranged to swap shifts with one of those four
qualified employees—the Shift B employee who observed the Sabbath on Sundays—
until that employee left the company. Other than those swaps, however, Diaz was
only able to arrange for another worker to cover one other Saturday for her.
There is also disputed evidence as to how helpful Kellogg was in facilitating
these swap arrangements. For example, Plaintiffs’ immediate supervisor Dean Shirra
indicated that he gave Tabura several names of employees Tabura could speak with
about trading shifts, but Shirra did not recall when he gave Tabura those names or
how many names he gave Tabura. Moreover, Tabura testified that he had already
asked all of the people Shirra listed as possible swaps, without success, and when he
explained that to Shirra, the supervisor offered no further help. Diaz, too, testified
that the only name Shirra gave her to ask about swapping shifts was someone she had
already asked.
Although, under the undisputed facts presented in Thomas, we rejected the
argument that the employer in that case “should have provided more active assistance
22
in helping [the employee] locate a ‘voluntary permanent swap’ for Saturdays,” we
also recognized that there may be facts present in a given case that could “require an
employer to take a more active role in securing a voluntary swap for the employee.”
225 F.3d at 1156-57 & 1157 n.8. On the record here, we think a jury could find that,
in light of the difficulties Plaintiffs had in arranging shift swaps in this case, Kellogg
had to take a more active role in helping arrange swaps in order for that to be a
reasonable accommodation of Plaintiffs’ Sabbath observance.
Of course, an employee has a duty to cooperate with his employer’s attempts
to accommodate the employee’s religious practices. See Toledo v. Nobel-Sysco,
Inc., 892 F.2d 1481, 1488 (10th Cir. 1989) (citing Ansonia, 479 U.S. at 69); see also
Lee 22 F.3d at 1022. As to that question, too, there remain genuinely disputed issues
of material fact. Kellogg contends, for example, that Plaintiffs really made no effort
to use the accommodations Kellogg offered them. But Plaintiffs provided evidence
that they did make some attempts, for example, to seek out approvable shift swaps.
A jury will have to decide to what extent Plaintiffs attempted to use the
accommodations Kellogg provided and whether any such efforts satisfied Plaintiffs’
reasonable duty to cooperate. See Beadle v. Hillsborough Cnty. Sheriff’s Dep’t, 29
F.3d 589, 593 (11th Cir. 1994) (upholding factual finding, after trial, that the
employee “failed to take full advantage” of the shift-swapping accommodation
offered by the employer); Brener, 671 F.2d at 143, 145 (5th Cir.) (upholding trial
court’s factual finding that employee “made only haphazard efforts to arrange
schedule trades,” which was one of the accommodations the employer provided to
23
permit the employee to observe his Sabbath and religious holy days); McGuire, 956
F.2d at 610 (6th Cir.) (reversing summary judgment for employer and remanding for
trial in part on disputed fact question of whether employee failed to seek voluntary
swaps, which were part of the accommodation his employer provided).
The above recitation makes it clear that in this case there are a multitude of
genuinely disputed material facts regarding whether Kellogg reasonably
accommodated Plaintiffs’ Sabbath observance.12 In light of that, neither Kellogg nor
Plaintiffs are entitled to summary judgment on this defense.
B. Undue hardship
Kellogg also pled the affirmative defense that any additional accommodation
of Plaintiffs’ Sabbath observance would cause undue hardship to Kellogg’s business.
The district court alternatively granted Kellogg summary judgment on that defense.
An employer incurs an undue hardship if it must “bear more than a de minimis cost in
order to give [an employee] Saturdays off” to observe his Sabbath. TWA, 432 U.S.
12
There are many other factual discrepancies throughout the record that may also
prove to be material. For example, although Kellogg asserts it accommodated
Plaintiffs, in part, by letting them use vacation and other paid time off to avoid
working Saturdays, Tabura testified in his deposition that his supervisor Shirra did
not tell Tabura he could use vacation time until after Tabura had already accumulated
ten disciplinary points for missing his Saturday shifts. And, according to Tabura,
Supervisor Shirra never told Tabura he could also use sick time to avoid working on
Saturdays, although there appears to be conflicting evidence on this point as well.
Further, while there is evidence Plaintiffs informed Kellogg of their need for a
religious accommodation, and Kellogg conceded as much for summary-judgment
purposes, Plaintiffs’ supervisor testified in his deposition that he was unaware that
Tabura needed to avoid working Saturday shifts for religious reasons until Supervisor
Shirra gave Tabura a verbal warning after he accumulated ten disciplinary points.
Furthermore, Shirra testified he was never aware that Diaz needed to avoid working
Saturdays for religious reasons.
24
at 84. “Any cost in efficiency or wage expenditure that is more than de minimis
constitutes undue hardship. The cost of hiring an additional worker or the loss of
production that results from not replacing a worker who is unavailable due to a
religious conflict can amount to undue hardship.” Lee, 22 F.3d at 1023 (internal
quotation marks, citation omitted); see also TWA, 432 U.S. at 84. It is the
employer’s burden to show that it cannot offer a reasonable accommodation without
undue hardship. See Thomas, 225 F.3d at 1156. Whether an employer will incur an
undue hardship is a fact question, see Williams, 529 F.2d at 488, that turns on “the
particular factual context of each case,” Toledo, 892 F.2d at 1490 (internal quotation
marks omitted).
Here, we have several concerns about upholding summary judgment for
Kellogg on its undue-hardship defense. First and foremost, while Kellogg pled that
affirmative defense, Kellogg did not move for summary judgment on it. Even so, the
district court can grant summary judgment on that basis if the court first gives the
parties “notice and a reasonable time to respond.” Fed. R. Civ. P. 56(f)(2). But the
court did not give notice in this case. The parties, therefore, were not on notice to put
forth all of their evidence pertaining to Kellogg’s undue-hardship defense. Plaintiffs,
in moving for summary judgment, did address the undue-hardship question to some
extent, proffering ways Kellogg might have accommodated them without apparent
undue hardship. But they did so expressly in light of the fact that, at trial, it was
Kellogg who would bear the burden of proving its undue-hardship defense. Kellogg,
for its part, in opposing summary judgment for Plaintiffs, asserted only that “several
25
of Plaintiffs’ proposed alternative accommodations would create significant burdens
on the company in the form of unauthorized overtime, quality control issues, and
even forcing entire lines to shut down.” (Aplt. App. 254.) Kellogg did not otherwise
cite to any evidence to support its assertions. The parties, therefore, did not put forth
all of their evidence on Kellogg’s undue-hardship defense. Given these concerns,
summary judgment was not warranted for either side on the record before us.
IV. CONCLUSION
Plaintiffs’ religious practice of weekly observing the Sabbath by refraining
from work from sundown Friday through sunset Saturday conflicted with Kellogg’s
requirement that its production employees work every other Saturday. Title VII
required Kellogg reasonably to accommodate Plaintiffs’ religious practice, if Kellogg
could do so without incurring undue hardship to its business. Whether Kellogg
reasonably accommodated Plaintiffs’ Sabbath observance and, if not, whether
Kellogg could do so without undue hardship, must await further proceedings. We,
therefore, REVERSE the district court’s decision granting Kellogg summary
judgment on Plaintiffs’ failure-to-accommodate claims and REMAND for further
proceedings consistent with this opinion.
26