The Tenth Circuit reverses summary judgment in a Title VII religious accommodation case, holding that a jury must decide both (1) whether the employer offered a reasonable accommodation to two Seventh Day Adventist employees who could not work Friday nights or Saturdays, by allowing them to swap shifts with willing co-workers; and (2) whether further accommodating their Sabbath observance would cause undue hardship.
Tabura v. Kellogg USA, No. 16-4135 (10th Cir. Jan. 17, 2018): At its processing plant in Utah, Kellogg adopted “continuous crewing” in 2011, where the plant’s workforce into four shifts – A, B, C, and D – each of which “worked twelve hours a day for two or three days, and then would have two or three days off.” Two employees who were Seventh Day Adventists, plaintiff Tabura and Diaz, “could not work on Saturdays because it was their Sabbath” or “on Fridays when the sun set before their shift ended.”
Kellogg supposedly accommodated the plaintiff’ scheduling needs by allowing the employees to deploy vacation time, sick days, and shift-swapping. But swapping shifts was fraught under Kellogg’s procedures:
“plaintiff 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 plaintiff could not swap with anyone on C Shift, the night shift that followed plaintiff’ Shift A. Instead, plaintiff had to find someone from either Shift B or D. But plaintiff 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.”
The two plaintiff in the end could not work out enough swaps, and were fired 12 to 14 months after continuous crewing commenced owing to absenteeism. The plaintiff filed a Title VII action alleging disparate treatment based on religion, failure to accommodate, and retaliation. The district court granted Kellogg summary judgment on all counts, and the plaintiff appealed only the accommodation claim.
The Tenth Circuit reverses. Because Kellogg conceded, that the employees made out a prima facie case that they were denied accommodations, the appeal came down to whether “Kellogg reasonably accommodated plaintiff’ Sabbath observance and, alternatively, that Kellogg would incur an undue hardship if it further accommodated their religious practice.”
The panel notes that “an accommodation will not be reasonable if it only provides plaintiff an opportunity to avoid working on some, but not all, Saturdays,” or merely to “delay their eventual termination.” At the same time, Kellogg was not obliged to “guarantee plaintiff will never be scheduled for a Saturday shift” or to “spare the employee[s] any cost whatsoever.” The panel rejects the plaintiff’ (and amicus curiae EEOC’s) argument – suggested in the language of some other circuits’ opinions – that an employer must eliminate any scheduling conflict in the name of accommodation.
The panel also rejects the plaintiff’ and EEOC’s argument that a reasonable accommodation cannot be affected by a neutral policy (here, shift-swapping) that is available to any other employee. “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).”
Yet it holds, even under a simple “reasonableness” test, that there are fact-issues that preclude summary judgment. While in principle an employer could accommodate a religiously-motivated employee with a combination of sick, personal, vacation, and shift-swapping days, in this case it arguably fell short because of the difficulty plaintiff had in arranging voluntary swaps with other, qualified employees.
“There is evidence indicating that the universe of qualified employees with whom each plaintiff could swap shifts was quite limited. plaintiff could not swap shifts with anyone on Shift C. Kellogg’s management further acknowledged it would have been ‘challenging’ for plaintiff to swap with anyone on the other night shift, D Shift …. That left B Shift.”
For Tabura, ‘there were only approximately twelve to fifteen processing employees … on a shift. Furthermore, processing workers were not trained and qualified to perform all processing jobs.” The qualified employees “usually declined” to switch with him. Diaz temporarily arranged a swap with an employee who could not (for religious reasons) work on Sundays, but that ended soon after.
Thus, “[o]n the record here, we think a jury could find that, in light of the difficulties plaintiff 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 plaintiff’ Sabbath observance.”
The panel also reverses summary judgment on the employer’s undue-burden defense. While Kellogg asserted that “several of plaintiff’ 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,” the panel notes that it “did not otherwise cite to any evidence to support its assertions,” or indeed even move for summary judgment on the defense.