CHRISTINE M. ARGUELLO, United States District Judge.
In this religious discrimination and retaliation case, Plaintiff-Intervenors — five female Muslim cabin cleaners who worked for a United Airlines contractor — allege that Defendant JetStream Ground Services, Inc. (JetStream), failed to hire them after they requested to cover their heads and wear long skirts for religious purposes. The Equal Employment Opportunity Commission (EEOC) also alleges that two so-called "aggrieved individuals" (also Muslim employees of JetStream) were laid off or selected for part-time work for the same discriminatory reasons.
This matter is before the Court on JetStream's Motion for Summary Judgment (Doc. #83) and the Plaintiffs' Cross-Motion for Partial Summary Judgment (Doc. #84.) Defendant's Motion argues that summary judgment should be entered in its favor on all of the claims due to the EEOC's failure to satisfy its conciliation requirements. (Doc. #83 at 1.) It also seeks summary judgment on the two aggrieved individual's religious accommodation, disparate treatment, and retaliation claims. (Id.) Lastly, it contends that summary judgment should be entered on some of the Intervenors' damages, because the job offers made to the Intervenors limit their recovery of both back and front pay. (Id. at 1-2.)
Plaintiffs' Cross-Motion for Partial Summary Judgment argues that the Court should enter summary judgment in their favor on several of Jetstream's defenses, including (1) the exhaustion of remedies and administrative prerequisites; (2) the viability of Plaintiffs' claims based on statute of limitations, waiver, estoppel, and laches; and (3) defenses alleging that the religious accommodations at issue are an undue burden. (Doc. #84.)
JetStream provides a variety of support services for airlines — including cargo, freight, and mail handling services; aircraft maintenance services; and cabin cleaning services — at airports throughout the United States, including Denver International Airport (DIA). (Doc. #83, ¶ 1.) In early October of 2008, Jetstream was awarded a contract with United Airlines (United) to provide cabin-cleaning services at DIA. (Id., ¶ 2.) In December of 2008, Jetstream also assumed United's overnight and daytime cleaning operations from AirServ Corporation ("AirServ"),
On February 5, 2009, five of AirServ's female cabin-cleaning employees — Safia Abdulle Ali, Sahra Abdirahman, Hana Bokku, Sadiyo Jama, and Amino Warsame ("Intervenors") — all of whom are Muslim Ethiopian and Somali immigrants, filed Charges of Discrimination (Charges) against JetStream, alleging discrimination on the basis of sex and religion. (Id., ¶ 4.) Specificially, the Intervenors allege that they were not hired during the transition between the AirServ and the JetStream contract because their religious beliefs require them to cover their hair, ears, and neck with a hijab
In her Charge, each Intervenor alleged that she worked for AirServ for some
The EEOC has submitted evidence regarding Mr. Norris' allegedly open animosity toward Muslim women wearing hijabs. Specifically, Michael Maina, who was employed by both AirServ and JetStream as a Duty Manager, provided a declaration describing the following comments allegedly made by Mr. Norris:
(Doc. #117-14, ¶¶ 1-2, 10-11.) Plaintiffs also submitted a declaration from Brenda Holan, who worked as an Administrative Manager for JetStream and helped interview applicants during the United transition. (Doc. #117-15, ¶¶ 1, 5.) She described the following interactions with Mr. Norris:
(Id., ¶¶ 16-17, 19.)
During his interviews, Mr. Norris asked Ms. Ali, Ms. Jama, and Ms. Warsame
Between April 13, 2010 and August 29, 2012, the EEOC investigated the Intervenors' charges and also expanded the investigation to encompass all of JetStream's national operations. (Doc. #84, ¶ 13.) The expanded investigation included multiple requests for additional information sent to both JetStream and AirServ, an on-site visit to DIA, and interviews of current JetStream employees. (Id.)
In February and March of 2011, based on "legal issues regarding the burka headgear," JetStream amended its uniform policy. (Doc. ##84-33 at 1.) The policy provides that
(Doc. ##84-33 at 1, 7; 116-4 at 22, 37.)
In a letter dated August 8, 2012, Defendant provided the following explanation to the EEOC investigator for its decision not to hire the Intervenors:
(Doc. #84-6 at 2-3). It also contended that it did not permit cabin cleaners to wear long skirts for safety reasons, explaining that "[p]ermitting cabin cleaners to wear long skirts would ... increase the likelihood of a serious injury occurring on the jetway stairs, as employees would be more apt to trip over a long skirt or catch loose clothing on protuberances while moving up and down the stairway throwing them off balance." (Id. at 5.) As for hijabs, JetStream noted that its policy "does permit employees to wear a head scarf so long as certain conditions are met" — namely, the head scarf must be blue or black in color, "secured to the employee's head, either by a hat or by some other means," as well as "short (i.e., not so long that it flows over the employee's shoulders, chest, or back); this ensures that an employee's head scarf does not become caught on aircraft equipment, portions of the jetway (a.k.a. the passenger bridge), or the jetway stairs, resulting in injury." (Id.)
On August 29, 2012, the EEOC issued a Letter of Determination as to each Intervenor's charge, notifying JetStream that the EEOC had found reasonable cause to believe that it had violated Title VII in refusing to provide the Intervenor herself as well as a "class" of other female Muslim employees or applicants "a reasonable accommodation based on [their] religion" and also in refusing "to hire her and others like her for the position of Aircraft Cleaner based on sex, religion, and in retaliation for engaging in protected activity." (Id., ¶ 15.)
Four years, 6 months, and 23 days elapsed between the Intervenors' filing of their initial charges (on February 5, 2009) and the EEOC's filing the Complaint (on August 30, 2013). (Doc. ##1; 116-5 at 1-12).
Because the Intervenors' charges were initially filed with the Colorado Civil
The parties disagree about the date the case was effectively transferred to the EEOC (contending this occurred in either March of April of 2010),
Between late August and October of 2012, the EEOC and JetStream exchanged written conciliation proposals five times, and met in person once. (Doc. #83-3 at 49-50.)
On September 18, 2012, the EEOC provided JetStream with a proposed, initial conciliation agreement. (Doc. #83, ¶ 8.) In this proposed agreement, the EEOC identified two other Muslim women, Milko Haji and Amina Oba, who, it contended, had also been aggrieved by JetStream's uniform policies. (Id., ¶ 10.) The EEOC initially proposed economic damages for the Intervenors
The parties met for an unsuccessful, in-person conciliation conference on October 25, 2012, at which time the Intervenors twice reduced their requested damages offers (first to $705,500, and second to $670,500). (Id. at 50.) Jetstream requested three to four days to respond with a counter-proposal, and the conference was adjourned at JetStream's request. (Id.) Ultimately, however, JetStream terminated the negotiations by making a last offer, and the EEOC concluded that conciliation was unsuccessful. (Id.) JetStream's final offer was that it would pay $75,000 to cover the Intervenor's back pay and compensatory damages, but it refused to compensate Haji and Oba or to set aside additional funds for putative victims. (Id.)
The EEOC filed its Complaint in this matter on August 30, 2013. (Doc. #1.)
On October 13, 2014, JetStream made offers of full-time employment to all Five Intervenors to work as cabin cleaners; these offers provided that the women "may wear a headscarf at work that meets their religious requirements but does not present safety risks," but required that they "wear pants at work, as they claim they are willing to do." (Doc. #83, ¶ 18, Doc. #83-2 at 43.) The Intervenors were also required to complete employment applications and to take drug tests. (Doc. #83-4 at 21.)
Ms. Oba is a Muslim female from Ethiopia, whose religious beliefs require her to cover her head and also to wear modest clothing that is not revealing of the shape of her body. (Doc. ##83, ¶¶ 19, 30; Doc. #83-2 at 47; 132-1 at 1; 132-11, ¶ 1.) She worked as a cabin cleaner at AirServ beginning in December of 2008, and regularly wore a hijab and skirt on her way to work, but removed her hijab and skirt and changed into pants when she arrived at the airport for work; she also donned and doffed her skirt and hijab during her breaks. (Doc. ##83, ¶¶ 19-20, 31; 83-2 at 50; 117, ¶ 31.) During the United Contract transition, Ms. Oba was interviewed by a Jetstream employee, but not by Mr. Norris. (Doc. #83, ¶ 21.) She was not asked about her clothing during her interview and also did not discuss her religion during her interview. (Doc. #83, ¶ 23.)
Ms. Oba wore pants while working for JetSteam and did not request to wear a skirt while working; specifically, she testified that despite wishing to wear a skirt for religious reasons, she did not make such a request because she knew that JetStream had refused to hire other Muslim women who requested similar accommodations. (Doc. #83, ¶ 32; Doc. #83-2 at 48, 49.) She also did not cover her head while
(Doc. #117-6, ¶ 23.)
On February 6, 2009 — approximately three and a half months after David Norris's interviews of the Intervenors — JetStream laid off approximately 25 employees (approximately 10% of its workforce), including Ms. Oba. (Doc. #83, ¶ 25.) The parties disagree both about who selected Oba for a layoff and about why she was selected. JetStream contends that layoff itself was "precipitated by a dispute between Jetstream and United over compensation paid to JetStream for certain services. As a result, JetStream was losing money at DIA and needed to reduce payroll costs." (Doc. #83, ¶ 26.) JetStream submits evidence from the deposition of station manager Earl Alexander, who admitted that he had no firsthand knowledge of Ms. Oba's work performance, but testified that shift manager Tom Kinsella
The EEOC contends that Ms. Oba was selected for a layoff because she wished to wear a hijab and skirt for religious reasons. In support of this argument, it points to the fact that Ms. Oba regularly and openly wore her hijab and skirt at work, donning and doffing them for work breaks, and that she was laid off along with another woman who also wore a hijab. Additionally, it notes that Ms. Oba was not initially selected for a layoff; specifically, her name did not appear on a list of employees who were to be laid off which was sent via email by Frank Austin, JetStream's Director of Hub Operations and Planning, on February 5, 2009, to Mariela Feliciano (JetStream's Human Resources Director), Norris, and co-owner Mark Desnoyers. (Doc. #117-8 at 2.) However, on February 6, 2009, Mr. Austin sent these same individuals "a revised work schedule with changes regarding those names
After being rehired at JetStream, Ms. Oba has worn a hijab while on the clock. (Doc. #83-2 at 50.)
Ms. Haji is a Muslim woman whose religious beliefs require her to wear modest clothing that does not reveal the shape of her body, including a skirt and hijab. (Id., ¶ 37; Doc. #117, ¶¶ 43, 44). Ms. Haji worked as a cabin cleaner at AirServ before being hired as a cabin cleaner by Jetstream. (Doc. #83, ¶ 37.) During the United contract transition, Ms. Haji requested a full-time shift, but was assigned a part-time schedule during the first three shifts she worked with Jetstream, working five hours and 30 minutes (from 8:30 AM to 2:30 PM, inclusive of her 30-minute lunch break) on Monday, December 15, 2008 through Wednesday, December 17, 2008. (Id., ¶ 38.) Beginning with her fourth shift, on December 21, 2008, Ms. Haji began working a full-time schedule, working eight hours (from 6:30 AM to 3:00 PM, inclusive of her 30-minute lunch break). (Id., ¶ 39.)
The EEOC asserts that "According to Defendant's records, Haji's first day of work was November 13, 2008, but she was not allowed to work until December 15, and then was scheduled for and worked only part time hours on December 15-17," and cites to exhibit number 41, submitted in support of its Motion for Summary Judgment. (Doc. #117, ¶ 39.) Exhibit number 41 appears to be a printout of a "Time Card" from a time-tracking program, indicating that Ms. Haji had 7.5 "worked hours" on November 13, 2008. (Doc. #117-41) However, the "Time Card" contains no other time entries for the week of November 9, 2008. (Id.) (showing zero hours for November 9th through 12th and 14th through 22nd.) The EEOC also submitted an undated "New Hire Processing Form" with information about Ms. Haji, including her address, with several handwritten notations at the very bottom of the page — some are illegible, but the legible words read "Events 401K & Med," a date (11/12/08), and what appear to be initials (MR). (Doc. #117-5.)
The Court has thoroughly reviewed all of the other evidence submitted by both sides, including the excerpts from Ms. Haji's and Mr. Austin's depositions. It notes that there is no other evidence in the record indicating that Ms. Haji was, in fact, supposed to begin work in November
Summary judgment is warranted when "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). A fact is "material" if it is essential to the proper disposition of the claim under the relevant substantive law. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). A dispute is "genuine" if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, Okl., 119 F.3d 837, 839 (10th Cir.1997). In reviewing motions for summary judgment, a court may not resolve issues of credibility, and must view the evidence in the light most favorable to the non-moving party — including all reasonable inferences from that evidence. Id.; Hansen v. PT Bank Negara Indonesia (Persero), 706 F.3d 1244, 1251 (10th Cir.2013) ("a judge may not make credibility determinations on summary judgment"); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his [or her] favor."). However, conclusory statements based merely on conjecture, speculation, or subjective beliefs do not constitute competent summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).
The moving party bears the initial burden of demonstrating an absence of a genuine dispute of material fact and entitlement to judgment as a matter of law. Id. In attempting to meet this standard, a movant who does not bear the ultimate burden of persuasion at trial does not need to disprove the other party's claim; rather, the movant need simply point the Court to a lack of evidence for the other party on an essential element of that party's claim. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
Once the movant has met its initial burden, the burden then shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. 2505. The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Id. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id. Ultimately, the Court's inquiry on summary judgment is whether the facts and evidence identified by the parties present "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, 477 U.S. at 251-52, 106 S.Ct. 2505.
Title VII requires the EEOC to engage in conciliation efforts prior to filing suit.
Prior to the United States Supreme Court's recent decision in Mach Mining, LLC v. EEOC, ___ U.S. ___, 135 S.Ct. 1645, 191 L.Ed.2d 607 (2015), the Circuit Courts of Appeals disagreed about whether the EEOC's satisfaction of Title VII's conciliation requirement was even subject to judicial review — much less the standard that should be applied in determining whether the Commission had engaged in sufficient conciliation. See, e.g., EEOC v. Mach Mining, LLC, 738 F.3d 171, 177 (7th Cir.2013) (holding that Title VII's statutory directive to attempt conciliation was "not subject to judicial review"); EEOC v. Zia Co., 582 F.2d 527, 533 (10th Cir.1978) (holding that "good faith efforts" at conciliation were required, but "a court should not examine the details of the offers and counteroffers between the parties, nor impose its notions of what the agreement should provide.")
In Mach Mining, LLC, 135 S.Ct. at 1656, the United States Supreme Court provided considerable guidance on this issue, holding that, in the context of the EEOC's obligation to conciliate, the scope of judicial review is "narrow, reflecting the abundant discretion the law gives the EEOC to decide the kind and extent of discussions appropriate in a given case." See also id. at 1653 (describing the scope of review as "limited" and "relatively barebones"). The Court explained that Title VII requires that "the EEOC afford the employer a chance to discuss and rectify a specified discriminatory practice —
Id. at 1655-56 (emphasis added).
JetStream's Motion argues that the EEOC did conduct a "sincere and reasonable conciliation" because it initially proposed that JetStream create a settlement fund for "aggrieved individuals" who had not yet been identified, and because the EEOC "demanded that Jetstream reinstate all other aggrieved individuals that it could identify." (Doc. #83 at 18.) JetStream further contends that the EEOC's negotiations on behalf of the Intervenors
It is clear that JetStream's objections to the EEOC's efforts all relate to the
That JetStream would have preferred individualized settlement counter-offers to match its own, or wished that the EEOC was not as aggressive as it was with respect to additional "aggrieved employees" who were affected by its uniform policy, is of no moment: the Commission is entitled to "expansive discretion ... over the conciliation process." Id. at 1653. Specifically, it "need only `endeavor' to conciliate a claim, without having to devote a set amount of time or resources to that project." Id. at 1654. Additionally, its efforts "need not involve any specific steps or measures," and it — not this Court — may "decide the kind and extent of discussions appropriate in a given case." Id. at 1654, 1656. It is also up to the EEOC to decide when conciliation has failed. Id. at 1654 (noting that the EEOC may decide "when to quit the effort" and the "pace and duration" of conciliation efforts).
It is undisputed that the EEOC did, in fact, engage in substantive conciliation efforts with Defendant. Specifically, in exchanging multiple settlement offers and in meeting in person with JetStream, the Commission tried "to engage [JetStream] in some form of discussion ... so as to give [it] an opportunity to remedy the allegedly discriminatory practice." See id. at 1653, 1655-56. Applying the "limited" scope of review mandated by Mach Mining, Court finds that the Commission's settlement efforts here were sufficient to fulfill Title VII's conciliation requirements.
Defendant contends that Ms. Oba's religious accommodation and disparate treatment claims should be dismissed because she did not inform JetStream that she desired a religious accommodation, wore pants and did not wear a headscarf while at work, and "there is no evidence that Kinsella and Alexander [i.e., the individuals who it claims made the layoff decisions] even knew Oba was Muslim." (Doc. #83 at 11, 13.) The Tenth Circuit
135 S.Ct. at 2032, 2033 (emphasis added). Thus, although "[a] request for accommodation, or the employer's certainty that the [religious] practice [requiring accommodation] exists,
Because Defendants relied extensively on the Tenth Circuit's Abercrombie & Fitch decision in moving for summary judgment on this claim, and because that decision was abrogated by the Supreme Court after the parties had filed their Motions
Under the "failure to accommodate" burden-shifting analysis, the plaintiff employee bears the initial burden of production with respect to making out a prima facie case for failure to accommodate. Although the United States Supreme Court did not explicitly rework the elements of the prima facie case in Abercrombie & Fitch, the decision makes it clear that a plaintiff may establish such a case by showing that (1) she had a bona fide religious belief that conflicted with an employment requirement; and (2) her need for an accommodation was a motivating factor in the employer's decision to take an adverse employment action against her. Compare E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 798 F.Supp.2d 1272, 1282 (N.D.Okla.2011) (describing the prima facie case as a "showing that (1) she had a bona fide religious belief that conflicts with an employment requirement; (2) she informed the employer of this belief; and (3) she was not hired for failing to comply with the employment requirement") to 135 S.Ct. at 2032 ("Abercrombie's primary argument is that an applicant cannot show disparate treatment without first showing that an employer has `actual knowledge' of the applicant's need for an accommodation. We disagree. Instead, an applicant need only show that his [or her] need for an accommodation was a motivating factor in the employer's decision.") If the employee establishes a prima facie case, the burden shifts to the defendant employer to "(1) conclusively rebut one or more elements of the plaintiff's prima facie case, (2) show that it offered a reasonable accommodation, or (3) show that it was unable to accommodate the employee's religious needs reasonably without undue hardship." Thomas v. National Ass'n of Letter Carriers, 225 F.3d 1149, 1156 (10th Cir.2000).
JetStream argues that Ms. Oba fails to proffer a prima facie claim for religious accommodation or for disparate treatment, even post-Abercrombie & Fitch, because there is "no evidence" that JetStream's desire to avoid a religious accommodation was a "motivating factor" in its decision to lay her off. (Doc. #165 at 9.) Specifically, JetStream points to the fact that it is undisputed that Ms. Oba never requested an accommodation, did not discuss her religion during her JetStream interview (which was not with Mr. Norris), always wore pants and never wore a hijab (prior to her layoff) while working for Jetstream, and also never spoke with David Norris. (Id. at 6-9)
The EEOC counters, and the Court agrees, that there is sufficient evidence to create a disputed issue of fact as to whether JetStream's decisionmakers knew — or, at the very least, suspected — that Ms. Oba desired an accommodation and laid her off to avoid giving her one. Significantly, far from being secretive about her religious clothing, Ms. Oba consistently wore religious garments in the workplace during non-work hours, donning and doffing them at the workplace several times each workday, including during her work breaks and when she arrived and left for the day. The Court also notes that the circumstances surrounding Ms. Oba's layoff
In addition to this, there is, of course, the obvious fact that Ms. Oba might well have been associated in Norris's (or Austin's) minds with the Intervenors, who personally informed Mr. Norris that they identify as Muslims and that they desired a religious accommodation. Defendant argues that merely because the Intervenors did so "does not establish that JetStream knew or suspected" that Ms. Oba "harbored the same religious beliefs as the Intervenors," and cites the Tenth Circuit's reasoning behind its (now-abrogated) requirement of actual knowledge of a need for a religious accommodation — namely, that "religious beliefs and practices are individualized and idiosyncratic, and employees may engage in apparently religious practices for secular reasons and not need an accommodation, or may not view their religious practice as inflexible." (Doc. #165 at 8-9.) However, not only has the EEOC proffered competent (albeit hotly disputed) evidence that Mr. Norris might not have been one to recognize the finer distinctions among Muslims, it is significant that Ms. Oba was one of a group of African women who immigrated from the same region of Africa as the Intervenors, spoke the same language as the Intervenors, and came to work wearing (and regularly donned and doffed) a headscarf and a skirt, including on JetStream's premises and in view of her fellow employees. Moreover, Ms. Oba's layoff occurred under questionable circumstances, and within three and half months of the Intervenors' initial requests for accommodation. This
In sum, although the EEOC has not been able to proffer a "smoking gun," it has pointed to sufficient evidence of smoke to require JetStream to convince a jury that "despite the smoke, there is no fire." See Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1187 (2d Cir.1992) (citing Price Waterhouse, 490 U.S. 228, 266, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (O'Connor, J., concurring)).
Title VII's anti-retaliation provision forbids an employer from discriminating against an individual because that individual "has opposed any practice made an unlawful employment practice" by Title VII.
JetStream contends that Ms. Oba's retaliation claim should be dismissed because
In University of Texas Southwestern Medical Center v. Nassar, ___ U.S. ___, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013), the Supreme Court explained the differences Title VII's antidiscrimination provision (§ 2000e-2) and its anti-retaliation provision (§ 2000e-3(a)):
Id. at 2525-26; see also Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 63, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (emphasis added) ("The antidiscrimination provision seeks a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status. The
Applying this distinction here, Ms. Oba's religious accommodation and disparate treatment claims allege that she was discriminated against
However, something more than conduct that is perfectly consistent with one's protected status (that is, something more than wearing a headscarf on the job during breaks) must be alleged for a plaintiff to have engaged in "protected activity." See Petersen v. Utah Dep't of Corr., 301 F.3d 1182, 1188-89 (10th Cir. 2002) ("The purpose of § 2000e-3(a) is to
The Court recognizes that there are a variety of ways to "convey a concern" to an employer in order to "oppose" an unlawful practice. See Crawford v. Metro. Gov't of Nashville & Davidson Cnty., Tenn., 555 U.S. 271, 277, 129 S.Ct. 846, 172 L.Ed.2d 650 (2009) ("Countless people were known to `oppose' slavery before Emancipation, or are said to `oppose' capital punishment today, without writing public letters, taking to the streets, or resisting the government. And we would call it `opposition' if an employee took a stand against an employer's discriminatory practices not by `instigating' action, but by standing pat, say, by refusing to follow a supervisor's order to fire a junior worker for discriminatory reasons.") Refusing to remove a hijab, for example, might —
It is undisputed that Ms. Haji was assigned three part-time shifts when she initially began working for JetStream in December of 2008, but that, beginning with her fourth shift, she began doing full-time work. Although JetStream does not explicitly argue that Ms. Haji's religious accommodation and disparate treatment claims should be dismissed because she did not experience an adverse employment action, it
(Doc. #117 at 21.) A close examination of Ms. Haji's deposition excerpts actually submitted by the EEOC reveals that the excerpts
In its statement of facts, the EEOC also asserts that "
To survive summary judgment, the party resisting the motion "may not rest upon the mere allegations" of her pleadings, including the arguments in the EEOC's Response. See Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505. Rather, disputed issues of fact must be supported by evidence on which a jury could reasonable find in favor of the non-moving party; a "mere scintilla" of evidence will not do, and if the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Id. at 251, 106 S.Ct. 2505; Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 678 n. 5 (10th Cir.1998). However, on the evidence before the Court (namely, the "Time Card" and "New Hire Processing" form), a jury would not be reasonably warranted in finding that Ms. Haji was supposed to start work on November 13, 2008. The "Time Card" merely appears to be a mistaken entry for hours which Ms. Haji undisputedly did not work; it is not a prospective work schedule, but rather is backward-looking (it states that "I certify that the above time card is correct", and notes that she had 7.5 "hours worked" on November 13, 2008). (Doc. #117-41 at 1.) Even assuming that it does represent a prospective work schedule, it has no entries for November 14th through 22nd — which would be expected given that Ms. Haji regularly worked five days a week. (Id.) Similarly, the mere fact that a date in November (11/12/08) is written on the bottom of Ms. Haji's "New Hire Processing" form — notably, this date is within one day of, but does not match, the alleged November start date — is simply not competent evidence that Ms. Haji was supposed to start that day. (Doc. #117-5.) At best, these documents represent a mere scintilla of evidence that Ms. Haji was supposed to start sooner than she did; they are certainly not probative, much less "significantly" probative, of the fact that she was supposed to start in November, and accordingly do not create a genuine issue of material fact sufficient to withstand summary
Although the Tenth Circuit "liberally interpret[s] the second prong of the prima facie case and take[s] a case-by-case approach, examining the `unique factors relevant to the situation at hand,'" an employer's act must do more than de minimis harm to be "materially adverse." Hillig v. Rumsfeld, 381 F.3d 1028, 1033 (10th Cir.2004). Specifically, for a Title VII discrimination claim, "[c]onduct rises to the level of adverse employment action when it constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a
Under either standard, the Court concludes that Ms. Haji's de minimis reduction in hours over the course of only three shifts does not qualify as an adverse action: her part-time status was temporary, and although she was paid less than she would have been had she worked full time over those three days, Ms. Haji was ultimately denied the equivalent of a single day's pay (seven and a half hours), because she worked five and a half hours, rather than eight, over the course of three shifts. See Cham v. Station Operators, Inc., 685 F.3d 87, 94 (1st Cir.2012) (holding that an employee's loss of three shifts on holidays "simply does not rise to the level of an adverse employment action"); Embry v. Callahan Eye Found. Hosp., 147 Fed. Appx. 819, 829 (11th Cir.2005) (an employee's one-day suspension resulting in a loss of $88.73 was not an adverse action because it did not constitute "a serious and material change in the terms, conditions, or privileges of employment"); Shaver v. Rottinghaus Co., Inc., 09-1193-EFM, 2011 WL 3880893, at *18 (D.Kan. Sept. 2, 2011) (finding that employer's reduction of employee's hours by approximately 2 hours a week was de minimis harm and did not constitute an adverse employment action); Roe v. Estee Lauder Companies, Inc., 3:04CV429, 2007 WL 1024120, at *11 (S.D.Ohio Feb. 7, 2007) (finding that a "temporary reduction of her work hours" and the resulting "de minimis reduction in pay" were not materially adverse employment action); Allen v. St. Cabrini Nursing Home, Inc., 198 F.Supp.2d 442, 449 (S.D.N.Y.2002) (denial of opportunity to work one day's worth of overtime not an adverse employment action where plaintiff had other opportunities to earn overtime pay); Rivers v. Potter, No. 05-4868, 2007 WL 4440880, at *7 (D.N.J.2007) (denial of a single instance of overtime work did not constitute an adverse employment action sufficiently impacting the terms, conditions, or privileges of employment). Accordingly, Ms. Haji has failed to allege that she was subjected to a materially adverse action — a necessary element of a prima facie case for religious accommodation, discrimination, and retaliation claims — and her claims will be dismissed.
Section 706 of Title VII requires
42 U.S.C. § 2000e-5(b) outlines the prerequisites when the EEOC brings an enforcement action in its own name, providing that the Commission must: (1) have received a formal charge of discrimination against the employer; (2) given notice of the charge to the employer; (3) investigated the charge; (4) made a determination that there was reasonable cause to believe that a violation of Title VII occurred and given notice of this same determination to the employer; and (5) made an effort to conciliate the charges. 42 U.S.C. § 2000e-5(b); accord Original Honeybaked Ham Co. of Georgia, 918 F.Supp.2d at 1176 (outlining 5 steps); Cont'l Oil Co., 548 F.2d at 889 (noting that the EEOC may bring a private enforcement action to vindicate further acts or incidents of discrimination discovered in the process of investigation, "so long as a finding of reasonable cause is made and conciliation is attempted as to the additional acts"); EEOC v. Gen. Elec. Co., 532 F.2d 359, 366 (4th Cir.1976) ("the original charge is sufficient to support action by the EEOC as well as a civil suit under the Act for any discrimination stated in the charge itself or developed in the course of a reasonable investigation of that charge, provided such discrimination was included in the reasonable cause determination of the EEOC and was followed by compliance with the conciliation procedures fixed in the Act.").
Defendant contends that Ms. Oba's claims must be dismissed because she did not file charges with the EEOC and thus "ha[s] not administratively exhausted [her] allegations." (Doc. #83 at 16). Specifically, it asserts that
(Doc. #83 at 16, n.2.) However, as the authority cited above indicates, Defendant
Defendant also contends that it was never given adequate notice "as to the nature of Oba's claims" before the EEOC filed suit, because the EEOC "did not conduct an investigation with regard to ... Oba's claims, include [her] claims in its determination letters, or advise JetStream of [her] claims during conciliation." (Doc. #116 at 20.)
As for the EEOC's investigation, Defendant sole basis for objection is that the EEOC made a single request for information regarding Ms. Oba and "never requested that JetStream identify the basis for laying Oba off." (Doc. #116 at 21). JetStream cites no legal authority for the notion that multiple requests for information are required for an investigation to be sufficient, and the extent of the investigation is the Commission's prerogative. See EEOC v. Keco Industries, Inc., 748 F.2d 1097, 1100 (6th Cir.1984) (holding that district court erred in inquiring into the sufficiency of the Commission's investigation because "the nature and extent of an EEOC investigation into a discrimination claim is a matter within the discretion of that agency."); EEOC v. Caterpillar, Inc., 409 F.3d 831, 832-33 (7th Cir.2005) (holding "[n]o case actually holds that the scope of the EEOC's investigation is a justiciable issue in a suit by the EEOC"). Additionally, JetStream's assertion about the EEOC's failure to inquire about the basis for Oba's layoff is puzzling in light of the fact that on May 24, 2012, the EEOC undisputedly made a request for this information when it asked JetStream to "[d]escribe the details of the lay-off or reduction-in-force
Additionally, the EEOC's Letter of Determination notified JetStream on August 29, 2012 that "there is reasonable cause to believe that there is a violation of Title VII in that the Respondent unreasonably refused to accommodate the Charging Party and a
JetStream also argues that the EEOC's conciliation efforts on behalf of Ms. Oba were insufficient, because "the EEOC provided
In sum, because Ms. Oba was an "aggrieved individual" identified by the EEOC in the course of its investigation;
Generally speaking, a Title VII claimant's rejection of a defendant's job
The EEOC argues that summary judgment is precluded on this issue, because whether JetStream's job offer was "unconditional" and whether it was reasonable for the Intervenors to reject it is a disputed issue of fact. Specifically, it notes that if the acceptance of the offers would have required the Intervenors to swallow their sincerely held religious belief and to wear pants, as well as to complete new applications and submit to drug testing.
Plaintiff's Cross-Motion for Summary Judgment requests that the Court grant summary judgment in its favor on several
The Court has already determined that the EEOC sufficiently engaged in conciliation efforts with respect to the Intervenors' claims, and also that the EEOC fulfilled the other necessary administrative prerequisites with respect to Ms. Oba's claims (including investigation, notification in a reasonable cause determination, and conciliation). As such, summary judgment will be entered on Defendant's third, fourth and fifth defenses (that Plaintiff/Intervenors' claims are barred due to the failure to exhaust "administrative remedies" and "conditions precedent to filing suit," and because "they exceed the scope of the administrative charges, the scope of the administrative investigation, or the scope of the administrative determinations," respectively). (Doc. #13 at 19.)
Defendant argues that it has viable statute of limitations, waiver, and estoppel defenses because the EEOC failed to exhaust its administrative requisites with respect to Ms. Oba's claims when it did not file charges within 300 days of any alleged discriminatory actions.
The EEOC is not required to conclude its conciliation efforts and bring an enforcement suit within any maximum period of time. Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 360, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977). Nevertheless, laches may constitute an equitable defense to a Title VII action when the EEOC's "unexcused or unreasonable delay has prejudiced [its] adversary." Bratton v. Bethlehem Steel Corp., 649 F.2d 658, 667 (9th Cir.1980) (internal quotation marks and citation omitted). The laches defense has two components: "(1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense."
JetStream has failed to provide adequate evidence in response to Plaintiff's Cross Motion to create a factual dispute as to whether it was "substantially prejudiced" by such delay. Defendant asserts that "due to the passage of time, many of JetStream's witnesses — and, most importantly, Norris — do not recall many of these events needed to respond to the Plaintiff's allegations," including whether Mr. Norris told them that they could not wear hijabs or skirts at work. (Doc. #116 at 26.) Specifically, Mr. Norris has submitted a declaration asserting that "due to the fact that it is has been more than five years since the 2008 hiring process occurred, I do not remember many details of those events needed to respond to the specific allegations made by the five women in this lawsuit." (Doc. #116-4 at 48.) The only specific examples of lapsed memory he can provide, however, are (1) he cannot remember whether the Intervenors offered to get him a letter from a mosque in support of their accommodation request, and (2) he "cannot remember the identity of the AirServ employees that I spoke with during the 2008 hiring process. Based on reading the deposition testimony of one of the women in this case, Amino Warsame, which indicated she had a dispute about her pay rate, I recall a pay rate dispute, and so I might be remembering her, but I am not certain whether the woman I spoke to was Ms. Warsame, or whether my recollection involves someone else entirely." (Id. at 48-49; Doc. #116, ¶ 24.) JetStream also alleges that prejudice resulted from Mariela Feliciano's inability to remember "many facts needed to respond to the allegations in this case," specifically, details about her interviews and why JetStream provided the reasons it did in its March 2009 Position statement provided to the CCRD. (Doc. #116, ¶¶ 25-28.)
However, the Intervenors' charges were filed almost immediately after the conversations
Indeed, although Mr. Norris claims that he cannot remember "the identity of the AirServ employees that I spoke with during the 2008 hiring process" (Doc. #116-4 at 48-49), the record reveals that his memories about their identities are no worse now than they were when Mr. Norris was interviewed by the CCRD several months after the events in question — in August of 2009. (Doc. #132-7.) Even at that time, Mr. Norris could not remember the names of the women he interviewed. (Id.) ("Norris cannot remember any of the names of the people he interviewed, but he remembers a group of girls.") Similarly, Feliciano investigated and provided the reasons why Intervenors were not hired in February 2009, a point which was very close to the events in question, and these reasons were memorialized in JetStream's position statement.
As for the fact that JetStream will pay "much more" in back pay if found liable, JetStream has pointed to no authority which indicates that this factor alone suffices to show prejudice; regardless, because backpay is an equitable remedy and subject to mitigation, the Court has the discretion to take the EEOC's delay into account when fashioning a remedy. See 42 U.S.C. § 2000e-5(g) (authorizing courts to order "such affirmative action as may be appropriate, which may include" back pay); Occidental Life, 432 at 373, 97 S.Ct. 2447 (noting that the trial court may restrict or even deny backpay relief when the EEOC is the plaintiff if there is "unexcused" delay); EEOC v. Great A. & P. Tea Co., 735 F.2d 69, 84-85 (3d Cir.1984) (denying employer's laches defense and noting that "[t]he district court has ample authority to tailor the scope of [backpay] relief" to account for any delay.)
Title VII makes it unlawful for an employer 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). "Religion" is defined to include only those "aspects of religious observance and practice" that an employer is able to "reasonably accommodate ... without undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j).
Once a plaintiff has made out a prima facie case of religious discrimination or the failure to accommodate, "the burden shifts to the employer to show that it was unable reasonably to accommodate the plaintiff's religious needs without undue hardship." Lee v. ABF Freight Sys., Inc., 22 F.3d 1019, 1022 (10th Cir.1994). The determination of whether a particular accommodation constitutes an undue hardship "must be made by considering `the particular factual context of each case.'" Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1490 (10th Cir.1989) (quoting Protos v. Volkswagen of America, Inc., 797 F.2d 129, 134 (3d Cir.1986)); see also United States v. City of Albuquerque, 545 F.2d 110, 114 (10th Cir.1976) (explaining that, with respect to an undue hardship determination, "[e]ach case necessarily depends upon its own facts and circumstances, and in a sense every case boils down to a determination as to whether the employer has acted reasonably.") An accommodation that requires an employer to bear more than a de minimis burden imposes an undue hardship. See Trans World Airlines, 432 U.S. at 84, 97 S.Ct. 2264. "[S]afety considerations are highly relevant in determining whether a proposed accommodation would produce an undue hardship on the employer's business. Title VII does not require that safety be subordinated to the religious beliefs of an employee." Draper v. U.S. Pipe & Foundry Co., 527 F.2d 515, 521 (6th Cir.1975); see also Kalsi v. New York City Transit Auth., 62 F.Supp.2d 745, 760 (E.D.N.Y.1998) aff'd, 189 F.3d 461 (2d Cir.1999) ("Even assuming that [plaintiff] is correct about the degree of risk, Title VII does not require employers to absorb the cost of all less than catastrophic physical injuries to their employees in order to accommodate religious practices.") Any proffered hardship, however, must be
JetStream contends that it would be an undue hardship for safety reasons to allow its employees to wear hijabs and skirts. (For ease of reference, the Court will refer to the proposed accommodation to allow employees to wear hijabs as "the hijab accommodation," and the proposed accommodation to allow employees to wear skirts as "the skirt accommodation"). As discussed in greater detail below, with respect to the hijab accommodation,
As for hijabs, the EEOC notes that JetStream's management has admitted that as long as a head covering is not loose or flowing, such a garment poses
(Doc. #116-4 at 22.)
JetStream does not dispute these facts specifically; instead, it generally refers to "safety risks" and "engine ingestion hazards" that exist on airport ramp areas from "
However, Jetstream has presented sufficient evidence to create a disputed issue of fact as to whether it would pose an "undue hardship" for JetStream to permit its cabin cleaners to wear long skirts while working. JetStream is self-insured for worker's compensation, up to the limit of its "stop loss" policy (which is $250,000 per claim), such that an increase to its employee injury risk could represent a financial burden. (Doc. #115, ¶ 71.) Additionally, JetStream has presented non-speculative — albeit weak — evidence that its employees could face additional safety risks if they wore skirts.
Unlike airline passengers, cabin cleaners do not enter the airplanes through the airport's gates; rather, they often move and work in and around the ramp area at DIA and are required to ascend and descend jetway stairs, such that they are at risk for tripping, slipping, or falling up or down those stairs and injuring themselves. (Doc. #116, ¶ 34.) JetStream's expert, Dr. Nancy Gruble, conducted an experiment in which she asked 10 women who wore long skirts on a somewhat-regular basis to traverse a set of jetway stairs for a total of 540 ascents and descents under varying conditions (including wearing pants, wearing a loose, long skirt, or gathering a long skirt; using the handrail and not using the handrail; and carrying zero, one, or two objects). (Doc. #84-3 at 3, 12.) The EEOC points to the fact that the experiment showed no statistically significant difference between the number of slips, trips, stumbles, or losses of balance by participants who wore skirts and those who wore pants, and that none of the participants actually injured themselves in the experiment. (Doc. #84, ¶ 38.) Defendant counters, however, that Dr. Gruble still concluded that "[s]tair users are more at risk of a safety incident during stair use while wearing a long loose skirt," because such safety incidents include not only slipping, tripping, stumbling, or falling, but also so-called "task interference" — i.e., an interruption to the employee's stair-climbing "task" "due to the presence of the clothing
Additionally, JetStream submitted a declaration from safety expert Matthew Lykins, who personally observed JetStream's cabin cleaners walking and working in the ramp area and concluded that "Allowing cabin cleaners to wear [loose] clothing is contrary to industry safety standards and creates a foreseeable safety risk," due to the fact that the cleaners are within close proximity to belt loaders, power tools, and jet engines. (Doc. #116-4 at 2-4.) The EEOC presents evidence about other company's practices in providing religious accommodations for employees to wear skirts; for instance, it points to the fact that JetStream previously offered an accommodation to allow the Intervenors to wear skirts, and that a representative for United Airlines testified that United has no objection to cabin cleaners servicing its airplanes while wearing skirts. Although this lends very strong support to the argument that such an accommodation would not be an undue hardship for JetStream, it does not establish, as a matter of undisputed fact, that it is not an undue hardship. Accordingly, the EEOC's Motion is denied with respect to the undue hardship defense as it pertains to the skirt accommodation.
On June 8, 2015, this Court ordered the parties to submit simultaneous, supplemental briefing on the effect of Supreme Court's interim decision in EEOC v. Abercrombie & Fitch Stores, Inc., ___ U.S. ___, 135 S.Ct. 2028, 192 L.Ed.2d 35 (2015) on the pending summary judgment motions. (Doc. #157.) The EEOC filed a Motion to Strike two portions of Defendant's supplemental brief, arguing that they raised new arguments that should have been made in Defendant's Motion for Summary Judgment. (Doc. #170.) Specifically, the EEOC argues that the court should strike (1) Defendant's arguments about the impact of the Abercrombie & Fitch decision on the prima facie case for failure-to-accommodate claims and (2) Defendant's arguments about Plaintiff's retaliation claims.
As for the impact of Abercrombie & Fitch on the prima facie case, the EEOC asserts that this portion of Defendant's brief should be struck because the EEOC "could not have anticipated that Defendant would propose a new construction of the prima facie framework for analyzing EEOC's failure-to-accommodate claims." (Doc. #170 at 9.) The Court disagrees. As discussed in pages 1318-19, supra, the Abercrombie & Fitch decision at least implicitly
JetStream's retaliation arguments present a closer call. Defendant's own supplemental brief concedes that Abercrombie & Fitch involved a failure to accommodate claim, not a retaliation claim, such that "prior precedent regarding retaliation claims continues to apply." (Doc. #165 at 11-12.) Nevertheless, Defendant still proceeded to discuss how Ms. Oba did not engage in protected activity by wearing her hijab at work while off duty, as "[s]uch conduct cannot be construed as opposition to lawful discrimination," and made further arguments about the lack of a causal connection between protected activity and the lack of sufficient evidence about pretext. (Id. at 12-13.) In support of these propositions, it cited to a handful of cases, including Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir.2008) — but not to Abercrombie & Fitch. (Id.) Defendant asserts that it included these arguments because it wished to explain that
(Doc. #174 at 5.) However, a close reading of its supplemental brief reveals that JetStream goes much further than merely stating that the failure to request an accommodation is "still relevant" despite Abercrombie — and thus goes beyond the permissible scope of the supplemental briefing — in arguing why, for example, there is no casual connection or insufficient evidence of pretext. Nevertheless, this portion of the brief need not be struck because it was not actually a new argument. As the Court explained in pages 1321-22, supra, Defendant cited Hinds and made the argument that Ms. Oba had not engaged in sufficient protected activity for a retaliation claim. See (Doc. #84 at 15) ("the EEOC cannot establish the first element of its prima facie case, as neither Oba nor Haji engaged in any protected activity.... [Additionally,] the EEOC must show that those who decided to take any alleged adverse action had knowledge of Oba and Haji's protected activity. Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187,
Accordingly, the Court ORDERS that Defendant's Motion for Summary Judgment (Doc. #83) is GRANTED IN PART, insofar as Ms. Oba's retaliation claim and Ms. Haji's disparate treatment, religious accommodation, and retaliation claims are hereby DISMISSED. It is DENIED in all other respects.
Plaintiffs' Motion for Partial Summary Judgment (Doc. #84) is GRANTED IN PART, insofar as summary judgment is entered in Plaintiff's favor as to Defendant's third, fourth and fifth defenses (the exhaustion of administrative remedies and conditions precedent to filing suit (including conciliation)); sixth, seventh, and eighth defenses (the statute of limitations, laches, and waiver and/or estoppel). As for the ninth and tenth defenses, summary judgment is entered in Plaintiff's favor with respect to the hijab accommodation, but DENIED with respect to the skirt accommodation. It is
FURTHER ORDERED that Plaintiffs' Motion to Strike (Doc. #170) is DENIED.
Rodriguez v. Wet Ink, LLC, 603 F.3d 810, 813 (10th Cir.2010) (internal citations omitted).
