Filed: Dec. 14, 2012
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1897 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff – Appellant, v. THOMPSON CONTRACTING,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: October 23, 2012 Decided: December 14, 2012 Before NIEMEYER, KING, and AGEE, Circuit Judges. Affirmed
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1897 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff – Appellant, v. THOMPSON CONTRACTING,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: October 23, 2012 Decided: December 14, 2012 Before NIEMEYER, KING, and AGEE, Circuit Judges. Affirmed b..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1897
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: October 23, 2012 Decided: December 14, 2012
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Susan Ruth Oxford, EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Appellant. Michael Coghlan
Lord, WILLIAMS MULLEN, Raleigh, North Carolina, for Appellee.
ON BRIEF: P. David Lopez, General Counsel, Carolyn L. Wheeler,
Acting Associate General Counsel, Lorraine C. Davis, Assistant
General Counsel, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Washington, D.C., for Appellant.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
The Equal Employment Opportunity Commission (the “EEOC”)
appeals the district court’s award of summary judgment to
Thompson Contracting, Grading, Paving, and Utilities,
Incorporated, in these Title VII proceedings. In September
2005, the EEOC initiated this action in the Eastern District of
North Carolina, alleging that Thompson Contracting had violated
Title VII by failing to accommodate the Saturday Sabbath
observance of a former employee named Banayah Yisrael, an
adherent of the Hebrew Israelite faith who had been a dump truck
driver for Thompson. The court rejected the EEOC’s claim,
concluding that Thompson had not breached its Title VII
obligations. See EEOC v. Thompson Contracting, Grading, Paving,
& Utils., Inc., 793 F. Supp. 2d 738 (E.D.N.C. 2011). As
explained below, we affirm.
I.
A.
1.
Thompson Contracting was a construction contractor that
provided grading, paving, and utility services for
2
transportation projects in eastern North Carolina. 1 During the
relevant period, Thompson operated on a normal workweek of
Monday through Friday, but its operations were weather-sensitive
and largely dependent on soil conditions. In order to meet
project deadlines and make up for days lost due to bad weather,
Thompson’s employees were frequently required to work on
Saturday.
Thompson Contracting normally had approximately 250
employees, roughly 200 of whom were general equipment operators
who ran various machines and vehicles not requiring a commercial
driver’s license (“CDL”). Additionally, Thompson usually owned
about eight vehicles whose drivers were obliged to maintain a
CDL: five dump trucks, a water truck, and two lowboys (flat
trailers that transport heavy equipment). A CDL driver is a
specialty position, and Thompson employed approximately eight
CDL drivers.
It was not uncommon for Thompson Contracting to rent
additional dump trucks to assist with large hauling operations.
To meet such needs, Thompson would hire “independent contractor”
dump trucks, which cost from $50 to $100 per hour each. On a
1
The facts spelled out herein are drawn from the record
compiled in the district court, and they are recited in the
light most favorable to the EEOC, as the nonmoving party. See
EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir.
2005).
3
busy day, Thompson would utilize as many as forty-five
independent contractor dump trucks.
2.
As an adherent of the Hebrew Israelite faith, Mr. Yisrael
observed his Sabbath on Saturday. Yisrael’s Sabbath observance
required him to refrain from working between sunrise and sunset.
Thompson Contracting twice employed Yisrael as a dump truck
driver, hiring him first in June 2004. During Yisrael’s initial
period of employment, Thompson became aware of his religious
beliefs, scheduled him to work on only one Saturday, and did not
discipline him for his absence on that occasion. In September
2004, however, Yisrael tested positive for marijuana and was
terminated.
In November 2004, Yisrael reapplied for employment as a
dump truck driver and was rehired by Thompson Contracting. Jim
Stafford, Thompson’s Director of Operations, decided to rehire
Yisrael after being assured that his drug use was under control.
At that time, Yisrael completed an application indicating his
unavailability for Saturday work.
On the first Friday after being rehired, Yisrael was asked
to work the following day, December 4, 2004. Yisrael responded
to Mike Lowe, his immediate supervisor, that he could not work
because of his religious obligation. All of Thompson
Contracting’s other dump truck drivers worked that Saturday.
4
Thompson did not use any independent contractor dump trucks, and
Yisrael was not disciplined for his absence. Yisrael was absent
again on Thursday, December 9, 2004, due to an appointment
concerning a veterans assistance issue. Although Yisrael had
notified Lowe the day prior to the appointment of his
anticipated absence, Yisrael received a verbal warning from
Stafford for that absence.
On Friday, December 17, 2004, Lowe directed Yisrael to work
the following day. When Yisrael informed Lowe that he could
not, Lowe responded, “I understand.” J.A. 737-38. 2 Yisrael did
not work on Saturday, December 18, 2004, but Thompson
Contracting’s other dump truck drivers worked that day.
Thompson also hired thirteen independent contractor dump trucks
for that Saturday’s work. On Monday, December 20, 2004, Yisrael
received a written warning for his Saturday absence, and he was
suspended for three days. The warning specified that “this is
the second week in a row this has happened,” and that the “next
infraction will result in termination.” Id. at 907.
On Friday, February 11, 2005, Lowe directed Thompson
Contracting’s dump truck drivers, including Yisrael, to work the
next day. All dump truck drivers save Yisrael worked that
2
Citations herein to “J.A. ____” refer to the contents of
the Joint Appendix filed by the parties in this appeal.
5
Saturday, and Thompson also hired twelve independent contractor
dump trucks. Due to adverse weather, no dump truck drivers
worked on Monday, February 14, 2005. That very day, however,
anticipating that he would be fired for his absence the previous
Saturday, Yisrael filed a charge with the EEOC alleging that
Thompson had failed to accommodate his religious beliefs.
Yisrael’s anticipation of being fired turned out to be correct.
When he reported for work on Tuesday, February 15, 2005,
Thompson terminated Yisrael’s employment. The termination
notice specified that Yisrael was being discharged for his
failure to have regular and dependable attendance. Stafford
advised Yisrael that he “was being terminated because [his]
religious schedule conflicted with the company’s work schedule.”
J.A. 1139.
B.
On September 28, 2005, the EEOC filed its Complaint against
Thompson Contracting in the Eastern District of North Carolina,
alleging that Thompson had discriminated against Yisrael by
failing to accommodate his religious beliefs and ultimately
terminating him because of his religion. In addition to back
pay, front pay, and punitive damages, the Complaint sought
injunctive relief in the form of Yisrael’s reinstatement, plus
an order barring Thompson from future discrimination and
6
directing the adoption of policies that would eradicate the
effects of its past discrimination.
Through subsequent discovery, the EEOC ascertained that
another Thompson Contracting employee, general equipment
operator Ivan Larios, had been permanently excused from work on
Saturdays in order to accommodate his Saturday Sabbath
observance. The EEOC also learned that a small number of
Thompson’s general equipment operators possessed CDL licenses,
though they were neither listed on Thompson’s liability
insurance policies nor trained to drive Thompson’s dump trucks.
After the close of discovery on April 20, 2007, Thompson
Contracting moved for an award of summary judgment. On March
31, 2008, the district court granted the summary judgment
request, concluding that Yisrael’s termination was performance-
related and identifying no evidence that Thompson had
discriminated on the basis of Yisrael’s religion. The EEOC
appealed and, by decision of June 25, 2009, we concluded that
the EEOC had made a prima facie showing under Title VII, and
that the evidence presented a genuine factual dispute on why
Yisrael was actually terminated. We thus vacated the judgment
and remanded for further proceedings. See EEOC v. Thompson
Contracting, Grading, Paving, & Utils., Inc., 333 F. App’x 768
(4th Cir. 2009). In so doing, we observed that “summary
judgment might still be proper if Thompson shows that it could
7
not reasonably accommodate Yisrael’s religious needs without
undue hardship.” Id. at 772.
On remand, in late April 2010, the district court ordered
briefing on the reasonable accommodation issue. Thompson
Contracting asserted in its brief, for the first time, that the
EEOC’s claim for injunctive relief was moot because Yisrael was
not eligible to be rehired. Thompson also filed the declaration
of a theretofore unidentified witness, Brandon Hudson, a
Thompson vice president. On July 6, 2010, the EEOC moved to
strike the mootness defense as well as the Hudson declaration.
The EEOC asserted that any evidence flowing from the declaration
was barred by Rule 37(c)(1) of the Federal Rules of Civil
Procedure, which prohibits the use of undisclosed information or
witnesses “unless the failure [to disclose] was substantially
justified or is harmless.”
On October 18, 2010, the district court entered an order
accepting Thompson Contracting’s mootness defense and thereby
dismissing the EEOC’s claim for injunctive relief. By its
order, the court also ruled that the late disclosure of Hudson
as a witness was harmless, and it reopened discovery for sixty
days for the limited purpose of deposing Hudson.
On November 4, 2010, the EEOC served Thompson Contracting
with an unauthorized new set of discovery requests containing
interrogatories and requests for production of documents. On
8
December 2, 2010, the EEOC noticed Hudson’s deposition for
December 7, 2010. On December 7, Thompson sought a protective
order shielding it from any additional discovery. In support
thereof, Thompson filed another declaration, that of its owner,
Bobby Ray Thompson, Jr., indicating that the business was
“financially unable to perform or complete the performance of
the work or comply with its contractual obligations,” and that
“[a]ll of the Company’s contracts have been assigned to other
contractors.” J.A. 1406-07. On April 4, 2011, the district
court entered a protective order, concluding that additional
discovery would be of minimal benefit and was not worth the harm
it would cause the defendant. 3 Accordingly, the court closed
discovery — depriving the EEOC of an opportunity to depose
Hudson — and authorized the parties to file additional briefs on
the reasonable accommodation issue.
On June 21, 2011, the district court awarded summary
judgment to Thompson Contracting. Relying in part on the Hudson
declaration, the court determined that Thompson had satisfied
its obligation of providing a reasonable accommodation by
offering shift-swapping and paid personal leave, and by making
3
On March 19, 2012, during the pendency of this appeal,
Thompson Contracting’s board of directors authorized Thompson’s
dissolution, and articles of dissolution were filed with the
Secretary of State of North Carolina on March 23, 2012.
9
efforts to personally accommodate Yisrael. See Thompson
Contracting, 793 F. Supp. 2d at 744-45. The court also
considered and rejected the EEOC’s three proposed accommodations
of Yisrael’s Sabbath observance: (1) that Yisrael be excused
from Saturday work; (2) that Thompson create a pool of
substitute drivers; and (3) that Yisrael be transferred to the
position of general equipment operator. The court concluded
that Thompson had met its burden of showing the first two
proposed accommodations would each result in undue hardship, and
that Thompson could not be required to offer the third because
it reasonably believed that Yisrael would have refused such an
accommodation. Id. at 745-47. The EEOC timely noted this
appeal, and we possess jurisdiction pursuant to 28 U.S.C.
§ 1291.
II.
We review for abuse of discretion a district court’s denial
of a motion to strike under Federal Rule of Civil Procedure
37(c). Hoyle v. Freightliner, LLC, 650 F.3d 321, 330 (4th Cir.
2011). The entry of a protective order by a district court is
also reviewed for abuse of discretion, which “may be found where
‘denial of discovery has caused substantial prejudice.’”
Nicholas v. Wyndham Int’l, Inc.,
373 F.3d 537, 542 (4th Cir.
2004) (quoting M & M Med. Supplies & Serv., Inc. v. Pleasant
10
Valley Hosp., Inc., 981 F.2d 160, 163 (4th Cir. 1992) (en
banc)). We review de novo a district court’s award of summary
judgment, accepting the facts in the light most favorable to the
nonmoving party. Emmett v. Johnson,
532 F.3d 291, 297 (4th Cir.
2008).
III.
On appeal, the EEOC seeks our resolution of three
contentions: (1) that the district court erred in denying the
EEOC’s motion to strike the Hudson declaration and in granting
Thompson Contracting a protective order; (2) that the court
erred in awarding summary judgment to Thompson; and (3) that the
court erred in dismissing the EEOC’s claim for injunctive
relief. We address those assertions in turn.
A.
1.
In reviewing the EEOC’s initial contention, we turn first
to the district court’s October 18, 2010 order denying the
EEOC’s motion to strike the Hudson declaration. If a party
fails to make the supplemental disclosures required by Federal
Rule of Civil Procedure 26(a) or (e), “the party is not allowed
to use that information or witness . . . unless the failure was
substantially justified or is harmless.” Fed. R. Civ. P.
37(c)(1). The test for evaluating substantial justification and
11
harmlessness was spelled out in Southern States Rack & Fixture,
Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003).
Premised on its Southern States analysis, the court concluded
that Thompson Contracting’s nondisclosure of Hudson and his
declaration was harmless, and it reopened discovery to permit
the EEOC to depose Hudson. 4 That decision falls well within the
trial court’s discretion.
2.
The district court thereafter revisited its discovery
ruling, granting Thompson Contracting a protective order
depriving the EEOC of additional discovery, including an
opportunity to depose Hudson. In so ruling on April 4, 2011,
the court reiterated that the tardy Hudson disclosure was
harmless. The court then assessed the declaration of Thompson’s
4
In our Southern States decision, we identified five
factors that a trial court should utilize in exercising its
discretion on whether a nondisclosure of evidence was
substantially justified or harmless under Rule 37(c):
(1) the surprise to the party against whom the
evidence would be offered; (2) the ability of that
party to cure the surprise; (3) the extent to which
allowing the evidence would disrupt the trial; (4) the
importance of the evidence; and (5) the nondisclosing
party’s explanation for its failure to disclose the
evidence.
318 F.3d at 597 (observing that first four factors relate to
harmlessness, and final factor relates to substantial
justification). Here, the district court weighed the first four
Southern States factors, assessing surprise, ability to cure,
potential disruption of trial, and importance of the evidence.
12
owner regarding the company’s financial difficulties and
concluded that, in such circumstances, Thompson’s burden of
responding to additional discovery outweighed the likely benefit
of such discovery to the EEOC. See Fed. R. Civ. P.
26(b)(2)(C)(iii). 5
When the protective order was entered, this case had been
pending for more than five years. Thompson Contracting was then
in the process of winding down its business and no longer
employed several of its witnesses. Meanwhile, the district
court had dismissed the EEOC’s claim for injunctive relief, and
its back pay claim was worth less than $6000. Additionally,
little of the information offered by Hudson was new. For
example, Hudson’s assertion that an unused dump truck cost
Thompson $520 per day in contract revenue simply supplied a
figure for Stafford’s deposition testimony that an idle truck
resulted in lost revenue. Indeed, the only new items of
5
Pursuant to Rule 26 of the Federal Rules of Civil
Procedure, a court may limit discovery if it determines that
the burden or expense of the proposed discovery
outweighs its likely benefit, considering the needs of
the case, the amount in controversy, the parties’
resources, the importance of the issues at stake in
the action, and the importance of the discovery in
resolving the issues.
Fed. R. Civ. P. 26(b)(2)(C)(iii). On this record, the district
court weighed each of those factors prior to its entry of the
protective order.
13
information in the Hudson declaration were his assertions that
all new dump truck drivers at Thompson were required to train
for one week, at a cost to Thompson of $11-$12 per hour ($440-
$480 for forty hours), and that “[d]uring Yisrael’s second term
of employment, Thompson welcomed substitutions of drivers for
work days that fell on a driver’s Sabbath.” J.A. 1209. Neither
assertion — if true — is essential to our conclusion that
summary judgment was appropriate. Put simply, the limited
amount of new evidence offered by Hudson, considered in
conjunction with the relatively minor sum that remained in
controversy and the decline of Thompson’s business, support the
proposition that the district court did not abuse its discretion
in entering the protective order.
B.
We thus proceed to the EEOC’s contention that the district
court erred in making its summary judgment award, which we
assess de novo. Pursuant to Title VII, it is 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). Religion is defined, for
Title VII purposes, as “all aspects of religious observance and
practice, as well as belief, unless an employer demonstrates
14
that he is unable to reasonably accommodate to an employee’s or
prospective employee’s religious observance or practice without
undue hardship on the conduct of the employer’s business.” Id.
§ 2000e(j).
In the first appeal in this case, we determined that “the
EEOC proffered sufficient evidence of a prima facie case of
religious discrimination by Thompson.” Thompson Contracting,
333 F. App’x at 770. When a plaintiff has established a prima
facie case of religious discrimination under Title VII, the
burden of proof shifts to the employer to “demonstrate either
(1) that it provided the plaintiff with a reasonable
accommodation for his or her religious observances or (2) that
such accommodation was not provided because it would have caused
an undue hardship — that is, it would have ‘result[ed] in more
than a de minimis cost to the employer.’” EEOC v. Firestone
Fibers & Textiles Co.,
515 F.3d 307, 313 (4th Cir. 2008)
(alteration in original) (quoting Ansonia Bd. of Educ. v.
Philbrook,
479 U.S. 60, 67 (1986)). Although the two prongs of
Firestone are “interrelated,” Judge Wilkinson therein explained
our holding that “the ‘reasonably accommodate’ and ‘undue
hardship’ inquiries [are] separate and distinct.”
Id. at 314.
The district court’s most recent summary judgment award to
Thompson Contracting was based on its conclusion that Thompson
had satisfied both of the Firestone prongs. We are satisfied to
15
affirm on the undue hardship prong only, rendering it
unnecessary to reach the reasonably accommodate prong.
In the summary judgment proceedings, the EEOC proposed
three accommodations, namely, that Thompson Contracting excuse
Yisrael from Saturday work, create a pool of substitute drivers,
or transfer Yisrael to the position of general equipment
operator. The district court rejected the first two of the
EEOC’s proposed accommodations after concluding that Thompson
had satisfied its burden of showing that each would result in an
undue hardship on the conduct of Thompson’s business. The court
then concluded that Thompson was not required to offer the third
proposed accommodation because it reasonably believed that
Yisrael would refuse such an offer. For the reasons set forth
below, we agree.
1.
First, in asserting that Yisrael could be excused from
Saturday work, the EEOC points to Ivan Larios, the general
equipment operator for Thompson Contracting who was not required
to work on Saturdays. When dump truck drivers were needed on a
Saturday, however, it was not uncommon that all of Thompson’s
dump truck drivers were deemed essential. On February 12, 2005,
the specific absence immediately preceding Yisrael’s
termination, Thompson was compelled to hire thirteen independent
contractor dump trucks. Operating one of its own dump trucks
16
cost Thompson around $100 per day, while hiring an independent
contractor dump truck cost much more, $50 to $100 per hour. And
when one of Thompson’s trucks was idle, Thompson was unable to
charge for its use, thereby losing revenue. Such a situation is
readily distinguishable from that of Larios who, as one of about
200 general equipment operators for Thompson, could be readily
excused from Saturday work.
The EEOC also argues that Thompson Contracting could do
without Yisrael for Saturday work because such work occurred
infrequently. The EEOC emphasizes that, during Yisrael’s
eleven-week second period of employment, Thompson scheduled only
three Saturday work sessions. That fact would not lessen the
burden on Thompson, however, on a Saturday when all of its dump
truck drivers were needed. At such times, any work left undone
by Yisrael’s idle truck would necessarily be completed by
Thompson’s other drivers, or by the hired independent
contractors, or not at all. Mandating that Thompson’s other
dump truck drivers pick up the slack caused by Yisrael’s absence
from work is an unacceptable alternative, in that we have
recognized that “an employer is not required to accommodate an
employee’s religious need if it would ‘impose personally and
directly on fellow employees.’” Firestone, 515 F.3d at 317
(quoting Chalmers v. Tulon Co. of Richmond,
101 F.3d 1012, 1021
(4th Cir. 1996)). If Yisrael’s work was to be performed by the
17
independent contractor dump trucks, it would cost substantially
more than Yisrael’s labor. And even if Yisrael’s unfinished
work was made up during the following week, Thompson would lose
contract revenue for any Saturday that Yisrael’s dump truck sat
idle. Put simply, we agree with the district court that
[c]ommon sense dictates that either Thompson hired at
least one of the independent contractors to make up
for Yisrael, the drivers worked harder to make up for
his absence, or a combination of both. Guaranteeing
every Saturday[] off for Yisrael would inevitably
result in an undue hardship to Thompson.
Thompson Contracting, 793 F. Supp. 2d at 745. As a result, the
district court did not err in concluding that excusing Yisrael
from Saturday work would impose more than a de minimis cost on
Thompson, resulting in an undue hardship on the conduct of its
business.
2.
Second, the EEOC contends that Thompson Contracting failed
to satisfy its burden of showing that the EEOC’s second proposed
accommodation — securing an alternate driver from among
Thompson’s other employees — would result in a cost that was
more than de minimis. In rejecting that proposal, the district
court correctly observed:
The EEOC’s proposed substitute driver system would
utilize either existing drivers or insure additional
drivers. Substituting existing drivers, however, does
little to address Thompson’s difficulties. On every
Saturday that Yisrael was asked to work, Thompson also
had all of its other three dump truck drivers working.
18
Besides the dump truck drivers, Thompson only had four
other licensed and insured CDL drivers, all of which
could also drive a dump truck. On at least two
occasions, December 3rd and 17th, Thompson was already
using all these available insured CDL drivers when
Yisrael could not work. Thus, substituting existing
drivers for Yisrael is not a reliable solution.
Thompson Contracting, 793 F. Supp. 2d at 746 (footnote omitted).
Notably, the EEOC takes no issue with the foregoing factual
recitation. It instead argues that there were available
substitute CDL drivers on Saturday, February 12, 2005.
Recognizing that an alternate dump truck driver would not always
be available from within the ranks of Thompson Contracting’s CDL
drivers, the EEOC suggests that Thompson could have secured a
substitute from among the small number of its general equipment
operators who possessed a CDL. Those employees, however, had
not been hired as CDL drivers, were not identified on Thompson’s
liability insurance policies, and had never driven Thompson’s
dump trucks. In order for them to serve as proper substitutes
for Yisrael on intermittent Saturdays, they would need to be
recruited, trained, and qualified for the company’s liability
insurance, plus pass a road test. As the district court
recognized in this regard,
[t]hese extra costs would make little sense merely to
provide an occasional substitute driver for another
worker. Moreover, makeup days are inherently on short
notice, so Thompson would need to have several such
substitute drivers to ensure one would be available
when needed.
19
Thompson Contracting, 793 F. Supp. 2d at 746. In these
circumstances, we agree with the district court that creating a
pool of substitute drivers would impose more than a de minimis
cost on Thompson, and would therefore impose an undue hardship
on the conduct of its business.
3.
Finally, the EEOC proposes — as its third alternative —
that Thompson Contracting could have accommodated Yisrael by
transferring him to the position of general equipment operator.
That accommodation was first proposed by the EEOC in response to
Thompson’s initial motion for summary judgment, that is, prior
to the first appeal. The only record support for the
proposition that Yisrael might have accepted such a transfer is
in his affidavit of June 18, 2007, filed post-discovery, in
which he asserts that he “would have accepted a general
equipment operator position had it been offered.” J.A. 1203.
In rejecting that proposed accommodation, the district court
declined to credit Yisrael’s affidavit assertion, finding it
contrary to his deposition testimony of December 11, 2006. The
court also concluded that Thompson was not obliged to offer
Yisrael a transfer to general equipment operator because it
reasonably believed that such a transfer would be refused. On
appeal, the EEOC maintains that the court erred in disregarding
20
Yisrael’s affidavit and in concluding that Thompson reasonably
believed that Yisrael would have rejected a transfer.
In this Circuit, it is settled that a conclusory affidavit,
conflicting with an earlier deposition, is not alone sufficient
to create a triable issue of fact. Evans v. Techs. Applications
& Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996) (citing Rohrbough
v. Wyeth Labs., Inc.,
916 F.2d 970, 975 (4th Cir. 1990) (“A
genuine issue of material fact is not created where the only
issue of fact is to determine which of the two conflicting
versions of the plaintiff’s testimony is correct.” (internal
quotation marks omitted))). Here, the record reflects that
Yisrael had twice sought and specifically applied for the
position of dump truck driver with Thompson Contracting. In his
deposition, Yisrael again confirmed that he preferred driving
the dump truck over other duties, stating that he was “hired as
a dump truck driver, and that’s what I expected to do.” J.A.
536. Notably, Yisrael was never directly asked during his
deposition whether a transfer to general equipment operator
would have been accepted, as he later asserted in his affidavit.
It is thus arguable that Yisrael’s deposition testimony and his
affidavit are not in irreconcilable conflict.
Assuming the veracity of the Yisrael affidavit, however, we
are satisfied — as was the district court — that Thompson
Contracting was not obliged to offer a transfer as an
21
accommodation. That Yisrael might have accepted a transfer does
not resolve this appeal in favor of the EEOC, because it is
clear from the record that Thompson reasonably believed that
Yisrael would not have agreed to change positions. Lowe,
Yisrael’s immediate supervisor and Thompson’s Director of
Production, explained that “[i]f you asked [Yisrael] to get out
of the truck to pull string or to shovel a little curb, he would
have a lot of mouth,” and he would make comments to the effect
of “‘I’m not a shovel person.’” J.A. 1104. Lowe specified that
Yisrael “thought he was a truck driver and that was all,” and
that Yisrael “would just moan and complain all of the time if he
wasn’t driving a truck.” Id. Accepting the evidence in the
light most favorable to the EEOC, it is clear that Thompson
reasonably believed that Yisrael would not have accepted a
transfer to general equipment operator. Furthermore, Thompson
was not required to offer Yisrael an accommodation that, on the
basis of his actions, the company reasonably believed would be
refused. See Wisner v. Truck Cent.,
784 F.2d 1571, 1574 (11th
Cir. 1986) (“The concept of accommodation does not require the
employer to tender employment arrangements that, based on the
employee’s own actions, it reasonably believes will be
refused.”).
Put succinctly, Thompson Contracting was not obliged to
offer Yisrael a transfer to general equipment operator, and it
22
has satisfied its burden, under the undue hardship prong of our
Firestone decision, of showing that the EEOC’s other proposed
accommodations would have resulted in more than a de minimis
cost to Thompson, causing an undue hardship on the conduct of
its business. In these circumstances, each of the EEOC’s
proposed accommodations must be rejected. 6
IV.
Pursuant to the foregoing, we affirm the judgment of the
district court.
AFFIRMED
6
In light of our endorsement of the district court’s
summary judgment award, we need not reach the EEOC’s contention
that the court erred in dismissing its claim for injunctive
relief.
23
