Filed: Jun. 25, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1626 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellant, v. THOMPSON CONTRACTING, GRADING, PAVING, AND UTILITIES, INCORPORATED, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:05-cv-00675-BO) Argued: March 26, 2009 Decided: June 25, 2009 Before NIEMEYER and MICHAEL, Circuit Judges, and Eugene E. SILER
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1626 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff - Appellant, v. THOMPSON CONTRACTING, GRADING, PAVING, AND UTILITIES, INCORPORATED, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:05-cv-00675-BO) Argued: March 26, 2009 Decided: June 25, 2009 Before NIEMEYER and MICHAEL, Circuit Judges, and Eugene E. SILER,..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1626
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff - Appellant,
v.
THOMPSON CONTRACTING, GRADING, PAVING, AND UTILITIES,
INCORPORATED,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:05-cv-00675-BO)
Argued: March 26, 2009 Decided: June 25, 2009
Before NIEMEYER and MICHAEL, Circuit Judges, and Eugene E.
SILER, Jr., Senior Circuit Judge of the United States Court of
Appeals for the Sixth Circuit, sitting by designation.
Vacated and remanded by unpublished opinion. Senior Judge Siler
wrote the opinion, in which Judge Niemeyer and Judge Michael
joined.
ARGUED: Susan Ruth Oxford, U.S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Appellant. Michael Coghlan
Lord, WILLIAMS MULLEN, Raleigh, North Carolina, for Appellee.
ON BRIEF: Ronald S. Cooper, General Counsel, Lorraine C. Davis,
Acting Associate General Counsel, U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Washington, D.C., for Appellant.
Kimberly D. Bartman, WILLIAMS MULLEN, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
SILER, Senior Circuit Judge:
The Equal Employment Opportunity Commission (EEOC) appeals
from the district court’s order granting summary judgment
against it for failing to establish evidence of religious
discrimination by Thompson Contracting, Grading, Paving, and
Utilities, Incorporated (Thompson) under Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(a)(1), when
Thompson terminated the employment of Banayah Yisrael (formerly
Garry Parker).
We find that the EEOC proffered sufficient evidence of a
prima facie case of religious discrimination by Thompson.
However, we decline to address the issue of whether Thompson met
the accommodation aspect of the claim because the district court
did not address this issue. Accordingly, we vacate the judgment
and remand to the district court for proceedings consistent with
this opinion.
I
Yisrael is a Hebrew Israelite who began working for
Thompson in June 2004 as a dump truck driver. As a Hebrew
Israelite, Yisrael’s religious beliefs require him to observe
the Sabbath and refrain from working on Saturdays. As a
contractor that works outdoors, Thompson sometimes requires its
employees to work on Saturdays when weather prevents work during
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the normal Monday through Friday work week. Thompson’s employee
handbook informs its employees of the requirement to work on
Saturdays and requires that each applicant disclose any days
that he or she is unavailable to work before they are employed.
When hired, Yisrael informed Thompson that he could not work on
Saturdays because of his religious beliefs.
Early in his employment with Thompson in September 2004,
Yisrael tested positive for marijuana and was terminated.
Yisrael reapplied for employment at Thompson. Thompson’s
Director of Operations, Jim Stafford, agreed to hire Yisrael
again, but told Yisrael that he would be under close scrutiny
and be required to undergo random drug testing.
After he was rehired in November 2004, Yisrael was asked to
work on Saturday, December 3, 2004, but declined to do so.
Yisrael alleged that he told a manager at Thompson that he could
not work because of his religious beliefs. Yisrael was not
disciplined for his absence. On Thursday, December 9, 2004, he
failed to show up for work again. Yisrael claims that he
informed his supervisor, Mike Lowe, of his absence one day in
advance. For this absence, Stafford gave Yisrael a verbal
warning.
On Friday, December 16, 2004, a manager asked Yisrael to
work on Saturday, December 17, 2004. Yisrael alleges that he
told a manager that his religion did not allow him to work on
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Saturdays. Consequently, Yisrael did not show up for work that
Saturday, which was his second Saturday absence. For this
absence Yisrael was suspended for three days and issued a
written warning stating that he failed to show or call and
inform Thompson of his absence for the second week in a row.
The written warning also stated that the next infraction would
result in termination.
For at least one of the December Saturday absences, Lowe
admits that Yisrael informed him in advance that he could not
work and Lowe simply replaced him with another truck driver.
After his second Saturday absence in December, Lowe asked
Yisrael to provide a letter from his spiritual leader verifying
his religious belief that he could not work on Saturdays.
Yisrael obtained the letter and gave it to the receptionist at
the main desk. Stafford received the letter and placed it in
Yisrael’s employee file.
In January 2005, Yisrael had an accident while driving a
dump truck, which resulted in damage to the tailgate of the
truck. Yisrael was issued a written warning for unsafe dumping
of concrete.
On Friday, February 11, 2005, Yisrael was asked to work on
Saturday, the next day. Yisrael again stated that he could not
work on Saturdays because of his religious beliefs and did not
work that Saturday. On February 15, 2005, Thompson terminated
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Yisrael’s employment for “unsatisfactory job performance.” The
employee termination form stated, “Mr. [Yisrael] has not had
regular, dependable attendance as required by our company
policy.”
Yisrael filed a charge of discrimination with the EEOC on
February 14, 2005, claiming that he had been denied religious
accommodation and disciplined and discriminated against due to
his religious beliefs. The EEOC filed suit in the United States
District Court for the Eastern District of North Carolina on
Yisrael’s behalf, claiming that Thompson discriminated against
Yisrael by refusing to accommodate his religious beliefs and
ultimately terminating him because of his religion. Yisrael did
not join the suit as a party.
The district court granted Thompson’s motion for summary
judgment. It held “[t]here is no evidence that the employer,
[Thompson], discriminated against the employee because of his
religion or his religious practice.” The district court found
the termination of Yisrael was entirely performance related
based on his previous failed drug test, accident with a company
truck, and random absences from work.
II
The EEOC presented sufficient evidence of a prima facie
case of religious discrimination. Both Thompson and the EEOC
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assert different theories as to why Yisrael’s employment was
terminated. Thompson claimed that it was because of Yisrael’s
past employment troubles and unsatisfactory job performance
during his probationary period, while the EEOC presented
evidence that Yisrael’s termination was the result of his
failure to work on Saturdays in observance of the Sabbath.
We review de novo the district court’s grant of summary
judgment to Thompson. Laber v. Harvey, 438 F.3d 404, 415 (4th
Cir. 2006). In reviewing the evidence, we draw all reasonable
inferences in favor of the nonmoving party, the EEOC, and we do
not make credibility determinations or weigh the evidence.
Williams v. Staples, Inc.,
372 F.3d 662, 667 (4th Cir. 2004).
The essential inquiry in granting summary judgment is “whether
the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Anderson v. Liberty
Lobby, Inc.,
477 U.S. 242, 251-52 (1986).
Under Title VII, an employer may not discharge or
discriminate against an individual in employment because of the
individual’s religion. 42 U.S.C. § 2000e-2(a)(1). Religious
accommodation in employment cases contain a burden-shifting
scheme analogous to that in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). EEOC v. Firestone,
515 F.3d 307, 312 (4th
Cir. 2008). A plaintiff must first establish a prima facie case
7
of religious discrimination. Id. “If the employee establishes a
prima facie case, the burden then shifts to the employer to show
that it could not [reasonably] accommodate the plaintiff's
religious needs without undue hardship.”
Id. (quoting Chalmers
v. Tulon Co. Of Richmond,
101 F.3d 1012, 1019 (4th Cir. 1996)).
The district court held that the EEOC did not present
sufficient evidence that Thompson discriminated against Yisrael
based on his religion and granted summary judgment in favor of
Thompson. For a prima facie case of religious discrimination,
the EEOC must prove that Yisrael: (1) had a bona fide religious
belief that prevented him from working on Saturdays;(2) informed
Thompson of his belief; and (3) was disciplined for failing to
work on Saturdays. See Firestone, 515 F.3d at 312. Thompson
does not challenge whether the EEOC met elements one and two of
the prima facie case. Thompson does, however, challenge element
three, whether Yisrael was disciplined for failing to work on
Saturdays. It argues Yisrael was fired for reasons other than
failing to work on Saturdays.
If there is a genuine dispute as to why Yisrael was
terminated, then summary judgment must be vacated. In reviewing
the evidence in the light most favorable to the EEOC, we find
that there is a genuine dispute concerning the reason for
Yisrael’s termination.
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Thompson argues that Yisrael was terminated because he was
on a second probationary period after he was rehired in November
2004, which placed him under a strict standard to perform
satisfactory work, a standard that he did not meet. Thompson
argues that Yisrael’s firing was the result of an array of
instances, only three of which involved Saturday absences.
However, the EEOC contends that Yisrael’s Saturday absences
were the crucial factor in Yisrael’s termination. Since three
of the four days Yisrael missed were Saturday absences, and the
reason given for Yisrael’s unsatisfactory job performance was
his attendance record, the EEOC reasons that Yisrael’s
termination was a result of his Saturday absences.
Further, at least two of the four disciplinary actions
Yisrael incurred were related to his Saturday absences. Yisrael
was given a written warning and a three-day suspension for his
second Saturday absence, which occurred on December 17, 2004.
Later, Yisrael was terminated directly after his third Saturday
absence on February 12, 2005. Thus, the EEOC has presented
sufficient evidence for a trier of fact to determine that
Yisrael was terminated for failing to work on Saturdays.
Since the resolution of this issue is the deciding factor
in whether the EEOC made out a prima facie case of religious
discrimination, it is undoubtedly material. Therefore, the EEOC
has met its burden of presenting a genuine issue of material
9
fact concerning the prima facie case, so we vacate the district
court’s entry of summary judgment.
III
In its order, the district court held that the EEOC did not
establish a prima facie case of religious discrimination and,
therefore, did not address the accommodation aspect of the
religious discrimination claim. Under the accommodation aspect
of the claim, summary judgment might still be proper if Thompson
shows that it could not reasonably accommodate Yisrael’s
religious needs without undue hardship. See Firestone, 515 F.3d
at 312. Although this court may affirm summary judgment on any
legal ground supported by the record, Jackson v. Kimel,
992 F.2d
1318, 1322 (4th Cir. 1993), we decline to address this issue.
On remand, the district court may review the evidence and
determine whether summary judgment in favor of Thompson is
proper under an accommodation theory.
VACATED AND REMANDED
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