United States District Court, D. Nebraska
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, ABDI MOHAMED, et al., Plaintiffs/Intervenors, FARHAN ABDI, et al., Plaintiffs/Intervenors,
JBS USA, LLC, f/k/a JBS SWIFT & CO., a/k/a SWIFT BEEF COMPANY, Defendant
[Copyrighted Material Omitted]
For Equal Employment Opportunity Commission, Plaintiff: Anne E. Gusewelle, Dayna F. Deck, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION - KANSAS, Kansas City, KS; Barbara A. Seely, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION - MISSOURI, St. Louis, MO; Jeffrey A. Lee, PRO HAC VICE, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION - OKLAHOMA, Oklahoma City, OK; Nicholas J. Pladson, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION-MINNEAPOLIS, Minneapolis, MN; Peter F. Laura, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION - SAN FRANCISCO, San Francisco, CA; Rebecca S. Stith, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION - SEATTLE, Seattle, WA.
For Mr. Abdi Mohamed, Ahmed Mohamed, Adbirahman Ali Diriye, Fartun Warsame, Sahra Mohamud, Abdifatah Warsame, Mohamed Mohamed, Amina Hassan, Nimo Musse, Burhan Yusuf, Abdulkadir Adan, Leyla Ahmed, Muhubo Ahmed, Istar Said, Fowsiya Ibrahmim, Ahmed Dalmar, Adbirizak Sahal, Faysal Mahamud, Ahmed Qurey, Abdisamad Farah, Mohamed Jama Farah, Mustafa Jama, Said Nuuh, Asha Abdi, Fartun Farah, Abdulahi Hashi, Fatuma Abdullahi, Abdisalann Ahmed, Halimo Abdullahi, Amina Hussien, Habsa Ibrahim, Asha Hussein, Ahmed Jibril, Abdulazia Warsame, Mohamed Ali, Abdirisaak Ali, Maymun Yusuf, Mohamud Ali, Fadumo Abdi, Rahma Hussein, Ifra Abdullahi, Khadija Hassan, Ayan Mohamud, Hodan Abdulle, Ayan Geedi, Deeq Said, Abdiwali Adan, Abdiaziz Yusuf, Barlin Ali, Ahmed Hassan Yusuf, Hawo Mohamed, Mohamed Elmi, Kaltun Ali, Khadro Abdirahman Osman, Hawo Sharif, Maryan Yusuf, Shamso Abdulakadir Abshir, Dhoofo Mohamed, Naima Mohamed, Jama Yusuf, Abdullahi Sheekh, Sahara Noor, Astur Nor Egal, Sainab Gurhan, Muna Mohamed, Shukri Wais, Sirad Adan, Farhiya Ahmed, Intervenor Plaintiffs: Barbara A. Seely, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION - MISSOURI, St. Louis, MO; Kathleen M. Neary, Vincent M. Powers, POWERS LAW FIRM, Lincoln, NE.
For Farhan Abdi, Hassan Duwane, Intervenor Plaintiffs: Barbara A. Seely, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION - MISSOURI, St. Louis, MO; Christina Abraham, Rabya Khan, PRO HAC VICE, COUNCIL ON AMERICAN ISLAMIC RELATIONS, Chicago, IL; Kathleen M. Neary, POWERS LAW FIRM, Lincoln, NE.
For Mohammed Jama, Intervenor Plaintiff: Barbara A. Seely, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION - MISSOURI, St. Louis, MO; Christina Abraham, Rabya Khan, PRO HAC VICE, COUNCIL ON AMERICAN ISLAMIC RELATIONS, Chicago, IL.
For Bashir Abdi, Rahma Mohamed Abdi, Faydero Abdirahman, Ahmed Adam, Mohamed Adan, Said Adoow, Noor Ahmed, Said Ali Ahmed, Ahmed Farah Ali, Muhydin Avidrahman, Ayan Ali, Farah Awil, Sahra Botan, Saynab Farah, Amina Farah, Hassan Gabow, Amina Gelle, Siraj Guled, Abdikhadar Hassan, Rashid Yusuf Hundule, Hussein Hussein, Mohammed Isak, Mohamed Isman, Asli Abdille Abdullahi, formerly known as Ambiya K. Roble, Intervenor Plaintiffs: Barbara A. Seely, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION - MISSOURI, St. Louis, MO; Christina Abraham, PRO HAC VICE, COUNCIL ON AMERICAN ISLAMIC RELATIONS, Chicago, IL; Kathleen M. Neary, POWERS LAW FIRM, Lincoln, NE.
For Abdulkadir Jama, Hawa Jama, Abdalle Hassan Mahamud, Hanad Mohammed, Omar M. Mohamed, Nimo Mohamed, Amina Mohamed, Musa Abdalla Mohamed, Hawa Mohamud, Abdalle Ali Mohamud, Astur Mur, Maryan Muse, Abdighani Muse, Warsame Nur, Mukhtar Omar, Ayan Osman, Sugra Olad, Ali Abdi Hakim Said, Ali Shire, Yusuf M. Soldad, Ahmed Sugule, Abdulqani Yusuf, Intervenor Plaintiffs: Barbara A. Seely, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION - MISSOURI, St. Louis, MO; Christina Abraham, PRO HAC VICE, COUNCIL ON AMERICAN ISLAMIC RELATIONS, Chicago, IL.
For Yasin Ahmed, Yusuf Dulane, Abdirizaq Abdulle, Intervenor Plaintiffs: Barbara A. Seely, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION - MISSOURI, St. Louis, MO; Christina Abraham, COUNCIL ON AMERICAN ISLAMIC RELATIONS, Chicago, IL; Kathleen M. Neary, POWERS LAW FIRM, Lincoln, NE.
For JBS USA, LLC, formerly known as JBS Swift & Co., also known as Swift Beef Company, Defendant: Andrew W. Volin, Kelly K. Robinson, Theodore A. Olsen, PRO HAC VICE, Heather M. Fox Vickles, Walter V. Siebert, SHERMAN, HOWARD LAW FIRM - DENVER, Denver, CO; Barbara A. Seely, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION - MISSOURI, St. Louis, MO; Roger J. Miller, MCGRATH, NORTH LAW FIRM, Omaha, NE.
For NE Equal Opportunity Commission, Movant: Barbara A. Seely, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION - MISSOURI, St. Louis, MO; Gregory J. Walklin, ATTORNEY GENERAL'S OFFICE - NEBRASKA, Lincoln, NE.
Laurie Smith Camp, Chief United States District Judge.
MEMORANDUM AND ORDER
This matter is before the Court on the Motion for Summary Judgment (Filing No. 342) filed by Defendant JBS USA, LLC f/k/a JBS Swift & Co., a/k/a Swift Beef Company (" JBS" ), and the Motion for Partial Summary Judgment (Filing No. 343) filed by Plaintiff Equal Employment Opportunity Commission (" EEOC" ). The parties have filed briefs and indexes of evidence in support of their respective positions. For the reasons stated below, JBS's Motion will be granted in part and denied in part. The EEOC's Motion will be denied.
The EEOC alleged in its initial Complaint (Filing No. 1) that JBS engaged in a pattern or practice of discrimination against Somali Muslim employees at its
Grand Island, Nebraska, facility. In its Amended Complaint (Filing No. 99), the EEOC identified 153 individuals for whom it seeks relief. Two groups of allegedly aggrieved employees  filed Complaints in intervention, but no class has been certified pursuant to Fed.R.Civ.P. 23.
On April 15, 2011, the parties entered into a bifurcation agreement (Filing No. 76-1) that Magistrate Judge Gossett adopted and approved (Filing No. 81). The agreement divided the discovery and trial into two phases: Phase I relates to pattern-or-practice claims to be addressed using the Teamsters method of proof,  and to employment practices and workplace events leading up to and encompassing Ramadan 2008. The parties have agreed that Phase I should be tried to the Court and not a jury. (Filing No. 403.) Phase II relates to individual claims and relief and any claims for which no pattern or practice liability was found in Phase I. The Intervenors have been precluded from participating as parties during Phase I; their participation during Phase I is limited to the role of fact witnesses. (Filing Nos. 296, 338.)
The present Motions relate only to the three Title VII, pattern-or-practice claims the EEOC is pursuing in Phase I of this lawsuit: (1) unlawful denial of religious accommodations concerning break times for prayers ; (2) unlawful termination based on religion and/or national origin; and (3) unlawful retaliation for engaging in a protected activity. ( See Filing No. 76-1 at 2.) The unlawful retaliation claim includes adverse employment actions such as termination and discipline, but specifically excludes any alleged harassment or hostile work environment claims, which will be tried in Phase II. ( Id. ) In its Motion, JBS seeks the dismissal of all three of these claims. The EEOC, in its Motion, seeks to establish as a matter of law that JBS engaged in a pattern or practice of denying reasonable accommodations to its aggrieved Somali Muslim employees' requests for break times to pray.
Unless otherwise indicated, the following facts are stated in the briefs and supported by pinpoint citations to admissible evidence in the record, that the parties have admitted, and that the parties have not properly resisted as required by NECivR 56.1  and Fed.R.Civ.P. 56. The undisputed fact derive from both parties' Motions:
I. JBS Operations and Background
A. JBS's Grand Island Facility and Operations
JBS, at all relevant times, owned and operated a beef slaughter and fabrication facility in Grand Island (the " Facility). The United Food and Commercial Workers Union Local 22, which merged with Local 293 in the summer of 2011 (the
" Union" ), represented all of the hourly production and maintenance employees at the Facility. A collective bargaining agreement entered into by JBS and the Union (the " CBA" ) governed the terms and conditions of employment for the hourly production and maintenance employees. The CBA required JBS to provide two paid rest periods, and an unpaid meal period. The precise timing of the rest periods was to vary according to production needs or emergencies. The CBA also expressly prohibited strikes or work stoppages by the Union or its members, and gave JBS the right to determine the appropriate discipline for any employee in breach of this provision. The CBA also had a non-discrimination clause, and required JBS and the Union to provide religious accommodations based upon employees' religious tenets. The CBA required employees to make written requests for religious accommodation, and to cooperate with JBS and the Union to explore reasonable alternatives.
In 2007 and 2008, the Facility operated three shifts: two production shifts and a clean-up shift. One of the production shifts ran from 6:00 a.m. to 2:30 p.m. (the " A Shift" ), and the other production shift ran from 3:00 p.m. to 11:30 p.m. (the " B Shift" ). (Dep. of Mary Chmelka, Filing No. 347-1 at 92:4-22; Dep. of Cindy Davis, Filing No. 347-4 at 85:10-86:20.)  A majority of Somali Muslim employees working at the Facility worked in fabrication on the B Shift.
Under the CBA, the B Shift's first scheduled break occurred between 5:00 p.m. and 6:00 p.m., and the lunch or meal break occurred between 7:30 p.m. and 8:30 p.m., with employees beginning these breaks on a " rolling basis." That is, employees would leave the production line to go on these breaks once they finished processing the meat in front of them and no more meat was coming down the line. As a result, employees at the beginning of the line went on their thirty-minute meal break first while those at the end of the line went on their thirty-minute meal break last. Twenty to thirty minutes could elapse between the time the first employee left the production line to start his or her break to the time the last employee left the production line for the break. If the employees were to take a " mass break" instead of taking their breaks on a " rolling basis," all employees would leave the production line at the same time and meat would remain on the line. Mass. breaks were unpopular, because when all employees left the production line at once, there was insufficient time for everyone to go to the cafeteria, eat, use the restroom, and get back to the line before the break is over.
In addition to the regularly scheduled rest and meal breaks, an employee could make a request to his or her supervisor for an unscheduled break. For example, an employee could request to leave the production line to use the restroom. The EEOC presented evidence that in 2007 and 2008, there was no authorized unscheduled break policy to allow a person to pray, as opposed to using the restroom.  The only authorized unscheduled break was for restroom use. (Filing No. 344-2 at 247:15-248:10.) Under the informal break policy, employees could ask for time
to go to the restroom, and such breaks had no specific set time limit and could last up to fifteen minutes. ( Id. at 33:14-22, 34:24-35:6.) The company's " standard practice" was not to allow employees to leave the line, other than for physical needs. (Filing No. 344-2 at 259:21-260:6.)
The Facility's operations were divided into two separate areas: slaughter and fabrication. Both areas operated on a production-line basis. That is, a " chain" moved beef, in one direction, from slaughter to a cooler, then from the cooler through fabrication,  and then from fabrication into packaging. The chain could stop for various reasons, such as mechanical failure, cattle grade changes, a cattle abscess, or employee fights. It also could be set to move at varying speeds, calculated on a " head per hour basis." Working on the production line consisted of hard, manual labor, and required employees to wear safety equipment that included a frock, hair net, beard net, hard hat, ear protection, gloves, and steel toed boots. It usually took at least two to three minutes for an employee to don or doff this equipment, which the employee had to do to leave the production line to go on or return from a break.
B. JBS's Discrimination Policies and Training
The Facility had an employee handbook that included policies that prohibited discrimination, retaliation, and harassment. (Filing No. 356-1.) JBS also had separate policies, a Harassment and Retaliation Policy (Filing No. 356-2) and a Zero-Tolerance Policy (Filing No. 356-3), that prohibited discrimination and retaliation. These separate policies were disseminated and posted at the Facility. During orientation, representatives from the Union also mentioned that, in general terms, discrimination was prohibited at the Facility.
C. JBS's Industry and Employee Break Schedules
JBS is in a competitive industry with very low margins, and having employees off the production line had an adverse financial impact on JBS. The negative financial impact increased the longer an employee was off the line and with each additional employee that stepped off the line. An employee leaving the production line for an unscheduled break could affect other employees and production levels depending on the number of employees leaving the line at one time and whether or not there were other employees available to cover for those leaving. For example, those who remained on the line needed to work harder and faster when someone stepped off the line. There is evidence that meat piled up when employees stepped away from the production line for restroom breaks.
Rigid break schedules would prevent the Facility from minimizing the disruption of mechanical breakdowns. Flexible breaks would minimize such disruptions by allowing employees to go to break when machinery was inoperable and being repaired. Equipment breakdowns and cattle-grade changes are unpredictable. If an equipment breakdowns occur during the flexible window of time for a rest or meal break, employees may go on a break while the equipment is repaired.
D. General Tenets of the Muslim Faith & Intervenors' Varied Beliefs
Muslims believe the Qur'an is the literal word of God. They also believe that they
should pray in accordance with the Prophet Muhammad's teachings, which call for five prayers a day: (1) morning, referred to as the fajr prayer; (2) noon, referred to as the dhur or zuhr prayer; (3) afternoon, referred to as the asr prayer; (4) evening/sunset, referred to as the maghrib prayer; and (5) night, referred to as the isha prayer. Ramadan is one month of the year in which Muslims are expected to, among other things, fast from dawn to dusk. Muslim prayer requirements, however, are year round.
The individual Intervenors in this case have varied beliefs with respect to: (1) the window of time within which they must recite their daily prayers; (2) the length of time required to complete their daily prayers; (3) the prayer schedule that should be followed; (4) the exact time at which each of the five daily prayers should be recited; (5) when it is permissible to skip a payer, combine prayers, or pray late. For example, while some of the Intervenors believe there is no permissible window of time (the prayer must be performed at an exact time), others believe it is permissible to perform the prayers within five, ten, or fifteen minutes--and depending on the prayer, within certain hours--of a specified prayer time. With respect to all of the prayers except the morning prayer, the time it takes the Intervenors to perform their prayers can be anywhere from less than five minutes to up to fifteen minutes.
In 2007 and 2008, JBS permitted its employees to pray in the Facility, at least during regularly scheduled breaks, except in areas that posed a safety risk. The EEOC presented testimony that the company's policy was that Muslim employees could only pray on regularly scheduled breaks, which were the first break and the meal break. (Filing No. 344-3 at 131:14-17.) " They were not allowed to use what you call an informal break to pray. It was only for restroom breaks." ( Id. at 131:24-132:3.)
II. Events Leading To EEOC's Charge
In Spring of 2007, a group of Somali Muslim employees took part in a " walk out" due to break-time issues with their sunset prayer. In an attempt to avoid a possible work conflict with sunset prayer practices, management at the Facility told some of the Somali Muslim employees they could request a transfer to the A Shift. Four or five Somali Muslim employees so requested, and were transferred to the A Shift.
In July 2007, JBS began to analyze the impact of accommodating prayer requests. As part of this process, JBS requested that the average cost of one minute of down time be calculated for both the slaughter and fabrication areas of the Facility. The calculation revealed that down time necessary to accommodate prayer requests would result in a cost that JBS considered significant.
In September 2008, JBS sought to determine whether it should adjust meal breaks to coincide with the evening prayers, and JBS compared production and break schedules with Islamic prayer times throughout the year. JBS also considered the possibility of a ...