Statement of Jurisdiction

The Equal Employment Opportunity Commission (EEOC) alleges claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The district court had subject matter jurisdiction under 28 U.S.C. §§ 1331 (federal question) and Title VII, 42 U.S.C. § 2000e-5(f)(3).

On August 19, 2022, the district court granted Center One’s motion for summary judgment, denied EEOC and Intervenor Demetrius Ford’s joint motion for summary judgment, and entered final judgment for Defendants Center One LLC and Capital Management Services, LP (CMS). JA.1-30. The Commission filed a timely notice of appeal on October 17, 2022. JA.31-32; see also Fed. R. App. P. 4(a)(1)(B). This Court has jurisdiction over the appeal under 28 U.S.C. § 1291.

Statement of the Issue

Whether EEOC made out a prima facie case of religious discrimination by producing evidence from which a jury could find that (a) Center One constructively discharged Ford when it refused to reasonably accommodate his religious observance, and (b) Center One altered Ford’s terms, conditions, or privileges of employment when it assigned Ford attendance points for his absences on days that his religion forbid working.

This issue was raised before the district court in the following filings: Plaintiff EEOC’s and Intervenor Demetrius Ford’s Joint Memorandum in Support of Joint Motion for Summary Judgment, R.99 at 5-23;[1] Consolidated Memorandum of Law in Support of Defendant Center One, LLC’s Motions for Summary Judgment as to All Claims of Plaintiff EEOC and Intervenor Demetrius Ford, R.103 at 9-25; Plaintiff EEOC’s and Intervenor Demetrius Ford’s Joint Response in Opposition to Defendant Center One, LLC’s Motions for Summary Judgment, R.110 at 2-19; Defendants Center One, LLC and Capital Management Services, L.P.’s Joint Memorandum of Law in Opposition to Plaintiffs’ Joint Motion for Summary Judgment, R.117 at 4-18; Defendants’ Consolidated Brief in Reply to Plaintiffs’ Opposition to Defendants’ Motions for Summary Judgment, R.119 at 1-5; Plaintiff EEOC’s and Intervenor Demetrius Ford’s Joint Reply in Support of Joint Motion for Summary Judgment, R.121 at 2-6; District Court’s Opinion, JA.1-27.

Statement of Related Cases and Proceedings

EEOC is not aware of any related cases or proceedings.

Statement of the Case

A. Course of Proceedings

This is an employment discrimination case arising from the defendants’ failure to provide a reasonable religious accommodation to Ford. This appeal is from a final order of the District Court for the Western District of Pennsylvania (Weigand, J.) granting Center One’s motion for summary judgment, denying EEOC and Ford’s joint motion for summary judgment, denying as moot CMS’s motion for summary judgment, and entering judgment in favor of Center One and CMS.

EEOC filed its complaint on September 27, 2019, and an amended complaint on June 2, 2021. EEOC’s amended complaint alleged that Center One and CMS, acting as a single employer, denied Ford a reasonable accommodation to observe holy days as required by his Messianic Jewish faith and constructively discharged Ford because of his religion, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1). JA.70. Ford filed an amended complaint on June 2 as well, asserting the same claims. JA.56.

On October 7, 2021, the parties filed cross-motions for summary judgment. EEOC and Ford moved jointly, seeking summary judgment on the claims that Center One and CMS failed to accommodate Ford’s religious observance and that Center One and CMS constructively discharged Ford and imposed discipline, and asking the court to hold that Center One and CMS are a single employer as defined by 42 U.S.C. § 2000e(b). R.98-R.101. Center One moved for summary judgment on all claims, focusing its arguments on EEOC and Ford’s purported failure to show that Ford experienced an “adverse employment action” arising from the conflict between his religious practice and his work requirements. R.102-R.105. CMS moved separately for summary judgment, arguing that it is not a single employer with Center One and that EEOC and Ford failed to comply with prelitigation requirements as to CMS. R.106-R.109. On August 19, 2022, the district court denied EEOC and Ford’s motion, granted Center One’s motion, denied CMS’s motion as moot, and entered final judgment in favor of the defendants. JA.1-30.

B. Statement of Facts

Ford’s religious beliefs and practice

Ford practices Messianic Judaism, having converted to the religion in 2006, a decade before his employment with Center One. JA.455-56.[2] On certain Jewish holy days, including Rosh Hashanah (called Feast of Trumpets in Messianic Judaism) and Yom Kippur (Feast of Atonement), Ford is forbidden by his religion from working. JA.438-39, 456-61. In addition to abstaining from work, Ford observes holy days by reflecting on his sins, contemplating how he can better himself, reading scripture, and sharing his beliefs and morals with others. JA.460-61.

From 2012 through the spring of 2016, Ford was associated with a congregation that met at a place called Prayer Mountain and was led by Mark Guy. JA.446-49; JA.609-10. In the fall of 2016, Ford reached out to Guy, but Guy did not respond. Ford contacted others associated with his congregation and learned that the owner of the Prayer Mountain location had died, the congregation had dissolved, and no one could locate Guy. JA.446-49, 464-65. At least one of Ford’s former co-congregants had trouble finding another Messianic congregation, traveling as far as Warren, Ohio. JA.465.

Center One and its employee handbook and practices

Center One operates a credit-related call center in Beaver Falls, Pennsylvania. JA.692; see also JA.409. Center One is a wholly owned subsidiary of CMS, a debt-related customer service company. JA.282, 366.

Center One gives new employees a handbook that includes an attendance and punctuality policy that assigns demeritorious points to certain attendance infractions. JA.151. Absences generally accrue one point, but an absence on Monday accrues two points. Id. An absence for which the employee fails to call in to Center One accrues three points. Id. Attendance is strictly regulated for new employees. For the first two weeks of employment, employees are in training and are allowed no absences. JA.96, 150. For two weeks after training, employees are in “transition” and “will be terminated” if they accrue two unexcused absence points. Id. Employees who accrue three points in their first ninety days of employment receive a “final warning” and are subject to a meeting with an Employment Review Committee (ERC). JA.95, 152. Accruing four points in the first ninety days of employment results in “termination.” JA.152; see also JA.640. Center One allows employees to request up to two temporary schedule changes per month, subject to supervisory approval, without incurring attendance points. See JA.162.

It is also apparently Center One’s policy, though not articulated in the handbook, that an employee may request a religious accommodation to the attendance policy by notifying Human Resources Assistant Heather Altman, Human Resources Generalist Andrea Brugos,[3] or the employee’s direct supervisor. JA.394-96.

Ford interviews and requests religious accommodation

On August 30, 2016, Ford applied to work at Center One as a Customer Care Specialist. JA.642-45. The next day, Ford interviewed with Altman and Shawnrika Vaughn, who would later supervise Ford. During the interview, Ford told Altman that he practiced Messianic Judaism, that he attended festivals as part of his religion, and that he was forbidden from working on certain holy days. JA.438-39. According to Ford, Altman responded, “we have Muslims that work here. And we let them go out and do their prayers. . . . So probably she said it wouldn’t be no problem.” JA.439. Altman did not ask, and Ford did not specify, the dates Ford needed to abstain from work. JA.440. Altman also did not tell Ford that she required any more information from him to validate his request for a religious accommodation.Id.

Also during the interview, Ford signed a schedule form setting his weekly schedule as 12-4 p.m. on Saturday and 12:30-9 p.m. Monday-Friday. JA.648. Ford circled “No,” in response to the question, “Do you have any prepaid vacation or any appointments scheduled within the ninety (90) day probation period that you would require off?” Id. Under Center One’s unwritten policies, the fact that Ford did not specify on his application form that he would need a religious accommodation, or list dates that he would need off from work for religious reasons, did not preclude him from later requesting an accommodation. JA.254-55; JA.355. Brugos testified it would be “more appropriate” to disclose an accommodation request during the candidate’s interview, as Ford did. JA.255.

Ford begins work and renews his request to have holy days off

Ford began work at Center One on September 12. He “loved the company,” which he described as a “good company,” JA.452, but ran into attendance issues shortly after completing his training. He missed work on September 29 for reasons unrelated to his religious obligations and accrued one attendance point. JA.445, 631. One to two days in advance of October 3, Ford told Altman that he would be absent to observe Rosh Hashanah (Feast of Trumpets) on October 3 and 4. JA.498-99. He asked Altman what code he should use when calling in absent those days. She told him to “just put personal reasons.” JA.499. She did not ask him to further document his need for accommodation, nor did she tell him his absence would be unexcused.

Following Altman’s instructions, on the mornings of October 3 and 4, Ford dialed Center One’s attendance line and selected the prompt to indicate he would be absent for personal reasons. JA.443, 482. When Ford returned to work on October 5, Altman told Ford the absences on October 3 and 4 were unexcused and that he would need to speak with Brugos. JA.481, 493. Ford went to speak with Brugos outside her office. JA.443. There, Brugos told Ford that his absences were unexcused. He explained that he was absent for a religious holiday. Brugos then told Ford he had “to come up with a letterhead to show what [his] religion is” in order to excuse the absences. JA.444; see also JA.213. This was the first time anyone at Center One asked Ford to document or verify his religious practice.

Brugos was apparently enforcing Center One’s unwritten policy to require written validation from an institution before accommodating a religious practice. See JA.373 (Center One corporate representative testifying to need for “[s]omething from an institution or something on letterhead”); see also JA.213-14 (Brugos testifying that the “policy” was to accommodate but only with “a letter on an official letterhead from the church, congregation, religious entity”); JA.308-09, 311 (Julie Fulciniti, Chief Administrative Officer of CMS, who oversaw human resources for Center One, testifying to need for “substantial” documentation, “[s]omething from their congregation”); JA.333 (Fulciniti testifying, “we would prefer a document to come from the place of worship that they were going to be attending . . . At that time, that’s what we would require.”). Ford told Brugos he would try to comply. JA.444. As it stood, Ford had accumulated four absence points and was eligible for termination, having called out from work three times, once on a Monday. See JA.631, 653.

That same day, Ford completed a temporary schedule change form later approved by his supervisor to shift his hours to accommodate the start of Yom Kippur at sundown on October 11. JA.660; JA.475-80. As noted above, Center One employees are allowed two schedule changes per month; such changes do not accrue attendance points. JA.162.

Ford unsuccessfully seeks official “letterhead” listing holy days

Also on October 5, Ford explained to Brugos that he could not reach his rabbi to satisfy the verification requirement, but he brought her an internet printout calendar that listed the holy days he intended to observe. See JA.528-29. Brugos told Ford she could not accept the internet calendar “since anyone could print this.” Id.; see also JA.220-21. She said that Ford “could have made this up on the Internet,” and instructed him to “go and get a priest, or something, to get a letterhead.” JA.483.

The next day, October 6, Ford gave Brugos an email from a congregation he was considering joining that also listed the upcoming holy days. JA.621-29; JA.528-29; JA.430. Brugos emailed Altman, Human Resources Generalist Paula Hurtgam, and Time and Attendance Coordinator Jake Szarowski, asking whether the documentation was sufficient to verify Ford’s request for accommodation and to excuse the October 3 and 4 absences. JA.528-29. Szarowski responded that excusing the absence or not was a “decision that HR needs to make.” JA.525. Hurtgam replied asking whether Ford could get a letter from the new congregation. Brugos replied that she had asked Ford that on October 6 and that he “seemed discouraged and said he could try . . . . With that being said, it seems like the letter with the letter head is the only acceptable documentation?” Id.; see also JA.227-28.

Center One schedules an Employment Review Committee meeting on Yom Kippur

On October 7, Center One notified Ford that it had scheduled an Employment Review Committee (ERC) meeting for October 12 to discuss Ford’s attendance. JA.679. At the bottom of the ERC notification form, someone wrote, “H.R. waiting on one final piece of documentation.” Id. October 12 was Yom Kippur and was listed as a “holiday” for which “[n]o work is permitted” on the printout that Ford gave to Brugos before October 7. See JA.624.

On October 9, Ford emailed the rabbi in the congregation he was considering joining to ask him to write a letter verifying Ford’s need to abstain from work on the holy days in October. JA.786. The rabbi responded on the morning of October 12, Yom Kippur, saying he could not help Ford because Ford was unknown to the congregation. Id.

Later that day, Ford, Brugos, Vaughn, and Vice President of Human Resources Patti Sue O’Malley (via phone) attended Ford’s ERC meeting. O’Malley began the meeting by saying, “Well, this is a High Holy Day, why are you here?” JA.451. Ford responded that Center One had scheduled the meeting for the holy day and asked, “Why would you schedule it at this time?” Id. O’Malley then asked Ford why he could not produce an official letter from a congregation leader. JA.494. Ford explained that his former rabbi was nonresponsive and the leader of a potential new congregation would not write a letter for him. JA.431. Brugos said that Ford had provided calendars, but either Brugos or O’Malley then said, “I don’t believe the calendars.” JA.494. O’Malley asked Ford how he could effectively practice his religion without a congregation. JA.431. And O’Malley explained that Center One could work with Ford, but only if he provided the official documentation. JA.244. According to Brugos, at the end of the ERC meeting, Ford “was once again told that if we receive the documentation, we will relieve any applicable attendance points and will be able to accommodate him going forward.” JA.431. Brugos also told Ford that he could not have any more unexcused absences, which Ford understood to mean Center One would fire him if he missed one more day without providing a letter. JA.488, 518; see also JA.353 (Fulciniti testifying that after the ERC, Center One was “just going to keep the attendance points as was . . . unless he had anything else to submit”). Brugos agreed during her deposition that she was aware as of October 12 that “there was no congregation leader that could have provided documentation for Mr. Ford.” JA.249-250.

Ford accrues an attendance point for not working on Yom Kippur and then resigns because he cannot secure “a letter from his Rabbi”

Because the 12th was Yom Kippur, Ford called out from work that day and attended only the ERC meeting, thereby accruing one more attendance point. JA.631; JA.653. Ford then worked without incident until October 20, when he determined that he had more holy days coming up and that he would not be able to meet Center One’s requirement that he provide an official letter from a congregation documenting his need for a religious accommodation. JA.452-53. That day, he told Altman that he was resigning because “he could not continue to work for a company that did not accommodate his religious beliefs.” JA.433. Altman responded that Center One would accommodate him but only if he provided “a letter from his Rabbi stating that [he] practice[s] that religion and if he could not provide the letter [then] we could not accommodate that religion.” Id. She then accepted his resignation and filled out a personnel action form noting that Ford “voluntarily resigned” and “could not provide proper documentation for his religion needed for Human Resources.” JA.647; see also JA.684. At no point did anyone tell Ford that he was not required to provide an official letter from a congregation to be granted an accommodation going forward or to clear his past attendance points. See JA.556, 559-560; see also JA.785.

In 2017, Center One revised its policy and “no longer request[s] written documentation” when an employee asks for a religious accommodation. JA.399. Center One made the change “in regard[] to the Mr. Ford case . . . . To ensure that there are no . . . obstacles in approving any request.” JA.400-01.

C. District Court Decision

The district court granted summary judgment to Center One on all claims and entered judgment in Center One and CMS’s favor.

In its factual recitation, the court noted the sincerity of Ford’s adherence to Messianic Judaism was uncontroverted in the record. The court also noted that Center One did not dispute that, at least as of October 7, Ford had told Center One that he required time off to observe holy days. JA.2 n.2, 15.

Turning to the legal analysis, but before addressing whether EEOC and Ford made out a prima facie case of religious discrimination under T itle VII, the court addressed what it deemed the “reasonableness” of Center One’s verification requirement. JA.14. It held that Center One’s request for an official letter from a congregation verifying Ford’s request for time off to accommodate his religious beliefs was reasonable to remedy the “lack of specific information” Ford provided regarding the days and times he needed off. JA.16. The court acknowledged Ford’s testimony that he told Altman during his pre-employment interview that “he would, from time to time, need to be absent from work to observe religious holidays.” JA.15. It also acknowledged Ford’s testimony that he told Altman in advance about his Rosh Hashanah absences. But the court nevertheless said, “the record is clear that Mr. Ford did not provide Center One with any detailed information—i.e., dates and times—about his need for time off for religious observance until after he had accrued attendance points . . . on October 3 and 4.” Id. And, the court said, Ford’s testimony that he typically looked to a congregation leader to guide his religious observance, including to advise him of the dates he was required to abstain from working, also supported Center One’s clergy verification request. Id. Paradoxically, the court also observed that “Center One may not ultimately have been able to insist on clergy verification.” JA.16.

In holding that Center One’s clergy verification requirement was reasonable, the court relied in part on the section of EEOC’s Compliance Manual that addresses religious discrimination, section 12, and cited specifically subsection 12-I-A-3,[4] which provides that employers may ask for “additional supporting information” when there is “an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice.” JA.14. The district court also quoted §12-IV-A-2, which says that when discussing an accommodation request, employers may make a “limited inquiry” into an employee’s claim of a sincerely held religious belief or practice giving rise to the need for accommodation when the employer needs more information to determine whether it can provide a reasonable accommodation and has a “bona fide doubt” as to the basis for the request. JA.14-15.

Having determined the clergy verification requirement was reasonable, the court next addressed whether Ford suffered an “adverse employment action sufficient to satisfy the third element of Plaintiffs’ prima facie case.” JA.17.

Turning first to the attendance points, the court held that no jury could find that Ford had suffered “discipline ‘that is serious and tangible enough to alter [the] employee’s compensation, terms, conditions, or privileges of employment.’” JA.17-21. The court acknowledged that Ford had accumulated attendance points for the absences associated with his religious observation, and that those points had resulted in an ERC meeting at which Center One representatives reiterated the letterhead requirement and told Ford he could afford no more unexcused absences. JA.19. But the court considered the attendance points and the ERC meeting insufficient to alter Ford’s conditions of employment. Citing two district court opinions, the court held that “merely assigning points” and requiring Ford to attend an ERC meeting “does not constitute an adverse employment action.” Id. The court also relied on the fact that Center One did not terminate Ford, even though he had accumulated enough points to “twice over” merit termination. JA.19-20, 26.

The court then held that Center One did not constructively discharge Ford. JA.22-26. Applying factors this Court articulated in Clowes v. Allegheny Valley Hospital, 991 F.2d 1159, 1161 (3d Cir. 1993), the court held that Ford was not “threatened with discharge; demoted; subject to a reduction of pay or benefits; transferred to a less desirable position or altered job responsibilities; or urged to resign.” JA.22. The court rejected the argument that Ford reasonably perceived he would be terminated if he failed to provide the requested letterhead, finding that the evidence revealed only a “subjective belief” on Ford’s part “that Center One would have ultimately terminated him if he failed to produce such a letter.” JA.25. According to the court, a reasonable employee in Ford’s position would have continued to work with Center One rather than make the “unilateral decision to cut that process off.” JA.26.

Finally, the court held that the question whether CMS and Center One are a single employer was moot and therefore did not engage with its merits. JA.27.

Summary of Argument

The district court erred in granting summary judgment to Center One and entering judgment in the defendants’ favor on EEOC’s T itle VII religious accommodation claims. By demanding an official verification of Ford’s religious practice, Center One imposed an unreasonable prerequisite to accommodation that Ford could not meet, and that Center One knew Ford could not meet. Despite its knowledge of Ford’s need for accommodation, Center One assigned Ford demeritorious attendance points for days he missed to observe holy days. It then presented Ford with the choice between adhering to the tenets of his religion and keeping his job. Title VII forbids placing employees in such an intolerable position.

The district court correctly held that EEOC established that Ford adheres to Messianic Judaism and must abstain from work on holy days. It also correctly held that Ford gave Center One notice of the conflict between his religious observance and his attendance at work no later than October 7. But the district court erred when it discounted the notice Ford gave regarding this conflict before he started work at Center One and before he missed any workdays for religious reasons. This error led the court to the mistaken conclusion that Center One reasonably required Ford to provide an official letter from a congregation verifying his need for a religious accommodation. That holding had no basis in law or fact and tainted the court’s remaining analysis.

The court further erred in holding that no rational jury could find that Ford suffered an alteration to the terms, conditions, or privileges of his employment that was sufficiently adverse to violate T itle VII. In fact, in refusing to accommodate Ford’s religious observance and holding him to an unlawful verification requirement that he could not meet, Center One forced Ford to choose between observing his religion and keeping his job. Putting Ford to that intolerable choice amounted to a constructive discharge. Moreover, even if Ford was not constructively discharged, Center One’s assignment of demeritorious attendance points to Ford for days his religion compelled him to miss work made him eligible for termination at any time, thereby altering his terms, conditions, or privileges of employment.

Because EEOC made out a prima facie case of discrimination, it should be allowed to present its claims to a jury.

Standard of Review

This Court reviews the district court’s order granting summary judgment de novo. Meditz v. City of Newark, 658 F.3d 364, 369 (3d Cir. 2011). Summary judgment should be granted only where the record shows “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).

Argument

Title VII prohibits employers from discriminating against any individual “with respect to . . . compensation, terms, conditions, or privileges of employment, because of such individual’s . . . religion.” 42 U.S.C. § 2000e-2(a)(1). Title VII defines religion to include “all aspects of religious observance and practice, as well as belief.” 42 U.S.C. § 2000e(j). Under Title VII, an employer must reasonably accommodate an employee’s religious observance or practice that conflicts with a work requirement, unless the employer demonstrates that making that accommodation would pose an “undue hardship on the conduct of the employer’s business.”[5] Id.; see also Storey v. Burns Int’l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004); and see EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 775 (2015) (“Title VII requires otherwise-neutral policies to give way to the need for an accommodation.”). Employers must accommodate even “non-traditional” practices, “regardless of whether they are recognized by any organized religion.” EEOC Compliance Manual § 12 (overview) (Jan. 15, 2021) (citing Cooper v. Gen. Dynamics, Convair Aerospace Div., 533 F.2d 163, 168 (5th Cir. 1976)).

EEOC established a prima facie case that Center One failed to accommodate Ford’s religious practice.

To make out a prima facie case of religious discrimination based on a failure to accommodate, this Court requires the plaintiff to establish that (1) the employee had a sincerely held religious belief that conflicted with an employment requirement, (2) of which the employee informed the employer, and (3) the employee faced discipline, or another adverse employment action, because the employee failed to comply with the conflicting work requirement. Webb v. City of Phila., 562 F.3d 256, 259 (3d Cir. 2009). An adverse employment action in this Circuit is one that is “serious and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of employment.” Storey, 390 F.3d at 764 (quoting Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001)).

An employer may rebut the plaintiff’s prima facie case by showing it “made a good-faith effort to reasonably accommodate the religious belief,” or that accommodation would pose an “undue hardship upon the employer and its business.” Webb, 562 F.3d at 259. Only the prima facie case is at issue on appeal; Center One did not argue in the district court that it made a good-faith effort to accommodate Ford or that it established that accommodating Ford would constitute an undue hardship.

A. The district court correctly concluded that EEOC established the first two prongs of the prima facie case but erred in finding the verification requirement reasonable.

Although the district court held correctly that EEOC established the first two prongs of the prima facie case—that Ford’s religious beliefs were sincerely held and that he gave Center One notice of the conflict with its attendance requirements—the court inexplicably found that Center One’s “verification requirement” was reasonable. Because the court’s “verification requirement” holding seems to implicate the sincerity of Ford’s religious beliefs and whether he notified Center One of the attendance conflict for the days he observed his religious holidays, we briefly address the first two prongs of the prima facie case. We then explain that the “verification requirement” was unlawful under Title VII.

1. EEOC established that Ford sincerely ascribed to Messianic Judaism, and that his beliefs required him to abstain from work on holy days.

The first element of the prima facie case asks whether the employee held a sincere religious belief that conflicted with a work requirement. Webb, 562 F.3d at 259. This element of the prima facie case is rarely genuinely at issue, see Tagore v. United States, 735 F.3d 324, 328 (5th Cir. 2013); EEOC Compliance Manual § 12-1-A-2, and, as the district court recognized, was indisputably satisfied here, JA.2 & n.2, 15.

Ford testified that he has been an adherent of Messianic Judaism since 2006. JA.455-56; see also JA.605-10 (record correspondence between Ford and his former congregation leader, Mark Guy, dating back to 2013). He also testified about holy days that he observes and explained that on such days his faith requires him to engage in immersive reflection on how to better himself. JA.456-62. His religious observation requires that he abstain from work on certain holy days but does not require that he practice with a formal congregation. Id.; see also JA.507.

Center One did not initially dispute that EEOC established this element. See R.103 at 10 (“For the limited purposes of the instant motion only, Defendant does not dispute that Ford held a religious belief that conflicted with the job requirement of appearing to work during his scheduled hours[.]”). It apparently abandoned that position during the course of briefing, R.117 at 4 (arguing there is “an abundance of evidence in the record calling into question the sincerity of [Ford’s] need for religious observance on October 3-4, 2016 and October 12, 2016”), but, as the district court noted, Center One failed to adduce any evidence that would undermine the sincerity of Ford’s beliefs, JA.2 n.2. In fact, Brugos testified that she did not doubt the sincerity of Ford’s professed religious beliefs. JA.217. And Center One’s corporate representative testified that, as a matter of policy, Center One did not question employees’ professed beliefs, and Ford was no exception. JA.374, 388.

2. EEOC established that Ford gave notice of the conflict between his religious practice and his work obligations.

The second element of the prima facie case, notice, requires only that the employee provide enough information to make the employer aware that there is a conflict between the employee’s religion and a work requirement. Generally, employers may not insist on a specific form of notice if the facts otherwise show the employee conveyed enough information to notify the employer of the conflict. For instance, in Shelton v. University of Medicine & Dentistry of New Jersey, 223 F.3d 220 (3d Cir. 2000), this Court held that an employee gave sufficient notice of a conflict between her religion and her work requirements where her employer requested a note from her pastor, but she instead submitted a note she wrote describing her beliefs. Id. at 223, 225; see also Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 450 (7th Cir. 2013) (“Title VII has not been interpreted to require adherence to a rigid script to satisfy the notice requirement. Quite the contrary: Title VII is a remedial statute that we construe liberally in favor of employee protection.”); Brown v. Polk Cnty., 61 F.3d 650, 654 (8th Cir. 1995) (“An employer need have ‘only enough information about an employee’s religious needs to permit the employer to understand the existence of a conflict . . . .’” (quoting Heller v. EBB Auto Co., 8 F.3d 1433, 1439 (9th Cir. 1993)); see also Dixon v. The Hallmark Cos., 627 F.3d 849, 856 (11th Cir. 2010) (even absent express notice, second prong is satisfied where the employer is nonetheless aware of the conflict).

Ford gave general notice of his need for an accommodation even before he started working for Center One when he told Altman at his interview that “sometimes I have a lot of High Holy Days, a lot of festivals in the religion that I practice,” and, on those days, “I’m not allowed to work.” JA.439. He provided specific notice one or two days before his first absence for religious reasons (Rosh Hashanah), when he told Altman the dates that he would be absent for that holiday. JA.498-99. In response to that notice, Altman told Ford to “put personal reasons” when calling out; she did not ask for further information, including verification, from Ford. JA.499. Ford gave further specific notice of his need for accommodation on October 5 when he gave Brugos a printout of holy days he intended to observe, JA.528-29, and the next day when he gave Brugos an email from a prospective new congregation that also listed the upcoming holy days, JA.621-29; JA.528-29; JA.430.

The district court acknowledged Ford’s testimony that he told Altman at his interview that he required an accommodation and his testimony regarding his Rosh Hashanah notice. But the court faulted Ford for not giving notice to Vaughn, his “direct supervisor,” before the Rosh Hashanah absences and for not giving “any detailed information—i.e., dates and times—about his need for time off for religious observances until after he accrued attendance points for his absences on October 3 and 4.” JA.6-7, 15.

The district court had no basis to fault Ford, however. First, in alerting Altman of his need for accommodation, Ford complied with Center One’s unwritten rules regarding requests for accommodation, which allow employees to request a religious accommodation to the attendance policy by notifying Altman, Brugos, or their direct supervisor. See JA.394-96. Second, the record supports an inference that Ford did notify Vaughn of the conflict before Rosh Hashanah and that Vaughn told Brugos. In her statement, Brugos wrote that Vaughn told her Ford needed a religious accommodation regarding attendance “[i]n the beginning of October,” and characterized that exchange as “a few days” before Ford first gave Brugos the internet printout of holy days on October 5. JA.430; JA.528-29.

Finally, there is no basis to fault Ford for not providing a comprehensive list of holy days to Center One before his absences for Rosh Hashanah because Center One did not ask Ford for such information until after his absences for Rosh Hashanah. Immediately upon Center One’s request for more information, Ford provided a calendar listing the holy days he intended to observe.

In short, Ford gave notice early and often, including advance notice of the dates he would be absent before he missed any days for religious reasons. When asked for more information, he quickly complied. A jury could therefore easily conclude that Ford provided notice of the conflict between his religious observance and his work requirement.

3. Center One unreasonably required Ford to provide official verification of his religious practice.

In the district court, Center One defended against EEOC’s claims partly on the basis that its requirement that Ford provide an official letter from a congregation leader verifying his need for an accommodation was “reasonable.” R.103 at 15-20. The district court seemed to accept this argument in part, stating in a prefatory holding that “Center One may not ultimately have been able to insist on clergy verification” but, contradictorily, that its repeated requests for clergy verification were “reasonable under the circumstances.” JA.16. The “reasonableness” of Center One’s requirement that Ford provide official clergy verification of his religious practice does not fit neatly into any component of the prima facie case, but because it seems to implicate sincerity and notice, we address it here. In any event, the district court’s holding that the request was reasonable was error.

Title VII does not require employees to provide third-party verification of their religious beliefs or practices to merit accommodation. 42 U.S.C. § 2000e(j). EEOC’s interpretive guidance on religious discrimination claims, on which the district court relied in part, explains that employers may request further information to support an employee’s request for religious accommodation, but only in two contexts. First, if the employer “has an objective basis for questioning either the religious nature or the sincerity of a particular belief, observance, or practice, the employer would be justified in seeking additional supporting information.” EEOC Compliance Manual § 12-I-A-3. Second, employers may make a “limited inquiry” into an employee’s claim of a sincerely held religious belief or practice giving rise to the need for accommodation when the employer needs more information to determine whether it can provide a reasonable accommodation and has a “bona fide doubt” as to the basis for the request. EEOC Compliance Manual § 12-IV-A-2. The guidance does not condone a requirement of official documentation merely as a matter of course. Even where an employer has an objective basis for asking for more information, it should not insist on a specific form of information. Id. (“written materials or the employee’s own first-hand explanation may be sufficient”; even “when third-party verification is requested, it does not have to come from a clergy member or fellow congregant”); see also Shelton, 223 F.3d at 225 (rejecting an employer’s claim that its employee could give successful notice of her need for an accommodation only by providing a letter from her pastor).

Here, the district court found the letterhead requirement reasonable to enable Center One to “ascertain the specific contours of any reasonable accommodation” because, in the court’s view, Ford failed to give specific information about the dates and times he had to abstain from work. JA.15-16. In summary judgment briefing, Center One defended its letterhead requirement based on the allegedly “belated” nature of Ford’s request for accommodation, arguing that Ford did not give advance notice of his religious practice’s conflict with his work schedule and that Ford requested accommodation only after he accrued attendance points due to unexcused absences. R.103 at 1, 20. In a later brief, Center One argued that the timing of Ford’s request for accommodation gave Center One “a reasonable basis for questioning the sincerity of Plaintiff’s asserted need for time off for religious observance on October 3-4, 2016 and October 12, 2016,” justifying its request for an official verification. R.117 at 4-9.

The district court’s holding was error and Center One’s argument that it reasonably questioned the sincerity of Ford’s belief fares no better. The district court’s holding was untethered to any relevant legal standard. The court invoked section 12-I-A-3 of the EEOC’s Compliance Manual, which allows employers some leeway to ask for additional information where the employer has “an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice.” JA.14 (quoting EEOC Compliance Manual § 12-I-A-3 (2008)). But the district court had already held that Center One had adduced no evidence undermining either Ford’s stated adherence to Messianic Judaism or the sincerity of his belief. JA.2 n.2. Moreover, Center One representatives testified they did not question Ford’s sincerity. JA.217; JA.374, 388. That section of the Compliance Manual is therefore irrelevant to the reasonableness of Center One’s requirement.

The court also cited Wilkerson v. New Media Technology Charter School, 522 F.3d 315 (3d Cir. 2008), for the proposition that courts “do not charge employers with possessing knowledge about the particularized beliefs and observances of various religious sects.” JA.14 (quoting Wilkerson, 522 F.3d at 319). Wilkerson, however, is inapposite. In that case, the complaining employee informed her employer generally about her Christian faith, but did not inform her employer either before or during an offending school assembly that she objected on religious grounds to participating in a “libations” ceremony. Wilkerson, 522 F.3d at 317-19. The court held the employer had no obligation to accommodate a religious objection of which it was entirely unaware. Id. at 319-20 Here, of course, Ford provided notice regarding his need for accommodation before he missed any workdays. See supra section A.2.

Finally, the court cited as “see also” section 12-IV-A-2 of the EEOC Compliance Manual, which addresses the discussion employers and employees should have about an accommodation request. JA.14-15. As discussed above, that section provides that:

Where the accommodation request itself does not provide enough information to enable the employer to make a determination, and the employer has a bona fide doubt as to the basis for the accommodation request, it is entitled to make a limited inquiry into the facts and circumstances of the employee’s claim that the belief or practice at issue is religious and sincerely held, and that the belief or practice gives rise to the need for the accommodation.

EEOC Compliance Manual § 12-IV-A-2. The court did not explain the relevance of this passage, but it cannot justify Center One’s intransigence. For the reasons discussed above, Center One did not have a basis to question whether “the belief or practice at issue is religious and sincerely held.” If the court viewed Center One’s verification requirement as an attempt to determine future dates that Ford’s beliefs compelled him to take off, the calendar he provided by October 7 should have sufficed. See JA.623-24. Importantly, Ford provided a calendar of holy days immediately after Center One representatives first told him they needed more information from him. See supra section A.2.

The record also undermines any of the factual bases that the district court or Center One relied on to justify the verification requirement. Center One’s argument that Ford’s belated request for accommodation raised a question as to his sincerity ignores Ford’s testimony that he provided advance notice. See supra section A.2. Moreover, Center One’s position contradicts testimony from Center One’s own employees. As noted above, Brugos, the individual who first asked for official verification, and who continued to insist on the same during the ERC, testified that she did not doubt Ford’s sincerity and that she was enforcing a generally applicable “company policy” requiring official documentation, not that she demanded the letter in response to anything Ford had said or done. JA.220-22; see also JA.213-14, 217; JA.430-31. O’Malley also attributed the request to “company policy” during the ERC. JA.244. The only witnesses who attributed the documentation requirement to the timing of Ford’s request, as opposed to Center One’s general policy, were witnesses who never interfaced with Ford. See JA.314, 317-18 (Fulciniti); JA.404-05 (Lewis, corporate representative).

The lack of evidence supporting Center One’s stated justification, and the contrary evidence tending to show that the official letter requirement was a blanket requirement, leads to the reasonable inference that Center One’s letter requirement was in essence an unlawful sincerity requirement, as it would deny a religious accommodation request from anyone unaffiliated with a congregation. Such a policy would violate Title VII and run afoul of precedent invoked in EEOC interpretive guidance defining religion as “‘all aspects of religious observance and practice as well as belief,’” including “religious beliefs that are new, uncommon, [or] not part of a formal church or sect.” § 12-I-A-1 (quoting 42 U.S.C. § 2000e(j)); see also id. n.19 (citing cases). The courts do not premise the protection of religious beliefs on those beliefs’ acceptance by others, let alone by organized religions. See, e.g., Thomas v. Review Bd. of Ind. Empl. Sec. Div., 450 U.S. 707, 714 (1981) (“[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”). In short, the district court’s conclusion that Center One reasonably required an official letter from Ford was based on an erroneous view of the record and the law.

B. A jury could find that Ford suffered two adverse actions based on his absences from work for religious purposes.

The third prong of the prima facie case asks whether the employee’s terms, conditions, or privileges of employment were altered as a result of his failure to comply with the work requirement that conflicts with his religious practice. This Court asks whether the employee suffered discipline or another “adverse employment action,” which it has defined as an action that is “serious and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of employment.” Storey, 390 F.3d at 764 (quoting Cardenas, 269 F.3d at 263).

A jury could find that Ford experienced two alterations to the terms, conditions, or privileges of his employment resulting from Center One’s failure to accommodate his religious practice. First, it could find Ford was constructively discharged when Center One told Ford he could afford no more unexcused absences and that any future absences for religious observance would be unexcused unless he provided a note from a congregation leader. Center One thereby intolerably forced Ford to choose between his job and his religion. Second, a jury could find that Center One’s assignment of attendance points for days Ford missed for religious observance made him eligible for termination, thereby altering the terms, conditions, or privileges of his employment.

1. Center One constructively discharged Ford.

Constructive discharge arises when an employer permits “conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign.” Mandel v. M & Q Packaging Corp., 706 F.3d 157, 169 (3d Cir. 2013) (quoting Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1084 (3d Cir. 1996)); see also Green v. Brennan, 578 U.S. 547, 555 (2016) (Title VII treats resignation in the face of intolerable working conditions “as tantamount to an actual discharge”). This Court has articulated generally relevant, but inexhaustive, factors for courts to consider when assessing a constructive discharge claim, including (1) threats of discharge or urging the employee to resign; (2) demotion; (3) reduced pay or benefits; (4) involuntary transfer; (5) alteration of job responsibilities; and (6) unsatisfactory job evaluations. See Clowes, 991 F.2d at 1161 (discussing Age Discrimination in Employment Act claim). Constructive discharge also arises “[w]hen an employer acts in a manner so as to have communicated to a reasonable employee that she will be terminated, and the plaintiff employee resigns.” Laster v. City of Kalamazoo, 746 F.3d 714, 728 (6th Cir. 2014) (emphasis omitted) (quoting EEOC v. Univ. of Chi. Hosps., 276 F.3d 326, 331-32 (7th Cir. 2002)); see also Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987).

While this Court does not seem to have confronted the exact scenario presented here, other circuits have held that failure to accommodate a religious observance or practice that forces employees to choose between their job and their faith constitutes constructive discharge. In EEOC v. Consol Energy, Inc., 860 F.3d 131 (4th Cir. 2017), for instance, the Fourth Circuit upheld a constructive discharge jury verdict in favor of an employee who retired rather than violate his evangelical Christian beliefs by scanning his hand to check in and out of work. The employer had refused an accommodation that would have resolved the conflict and threatened that if the employee continued to refuse to scan his hand, it would subject him to progressive discipline culminating in suspension with intent to discharge. Id. at 137-39. The employee retired under protest. Id. at 139. The Fourth Circuit held that the employee “was put in an intolerable position” of choosing between violating his religious beliefs or facing discipline and, ultimately, termination, and therefore upheld the jury’s constructive discharge verdict. Id. at 144-45.

Similarly, in Young v. Southwestern Savings & Loan Association, 509 F.2d 140 (5th Cir. 1975), the Fifth Circuit reversed summary judgment to an employer on an employee’s claim that her employer constructively discharged her by forcing her to choose between attending prayer sessions to which she objected or losing her job. The employee, an atheist, opted to skip her employer’s monthly meeting, which was devoted largely to business affairs, but opened with a short religious talk and prayer delivered by a Baptist minister. Id. at 142-43. When the manager confronted her about her meeting absences, the employee explained that the prayer conflicted with her atheist beliefs. Id. at 142. The manger responded that the meetings were mandatory, but she could “‘close (her) ears’ during” the prayer. Id. At the end of the workday, the employee quit. Id. The court held that the employee had made out a prima facie constructive discharge case because her employer forced her to choose between attending the meetings or missing them with the knowledge she would be fired for doing so. Id. at 144. The employer argued that the plaintiff left so quickly that it had no opportunity to try to accommodate her, and that the company’s actual policy, though uncommunicated to the plaintiff, was to excuse employees from the prayer portion of the meeting. Id. at 144-45. The court rejected those arguments, declining to hold the plaintiff to the employer’s “secret policy” and focusing instead on what the employee knew at the time she resigned: that her supervisor had told her unequivocally that her presence at the monthly meetings was mandatory. Id. at 145. The court explained that “it would be too nice a distinction” to require the plaintiff to wait to be fired rather than resign. Id. at 144.

Several district court decisions within this circuit have similarly held that constructive discharge can arise where employees are forced to choose between violating their religious beliefs and losing their jobs. See Mathis v. Christian Heating & Air Conditioning, Inc., 158 F. Supp. 3d 317, 335 (E.D. Pa. 2016) (jury could find employee forced to choose between wearing a badge with a religious message or losing his job was constructively discharged); Yochum v. FJW Inv., Inc., No. 2:11-cv-378, 2016 WL 1255289, at *5-6 (W.D. Pa. Mar. 31, 2016) (jury could find plaintiff who objected to religious aspects of training and told to participate in more training was constructively discharged); Shepherd v. Gannondale, No. 1:14-cv-8, 2014 WL 7338714, at *15 (W.D. Pa. Dec. 22, 2014) (jury could find plaintiff who objected to participation in community meetings was either terminated or constructively discharged); Matos v. PNC Fin. Servs. Grp., No. 03-cv-5320, 2005 WL 2656675, at *5-6 (D.N.J. Oct. 17, 2005) (employee denied time off for Jehovah’s Witness convention and told to choose between God and work created a factual question as to whether she was constructively discharged).

Center One put Ford to this intolerable choice. At the time he resigned, Center One had consistently told Ford that he would be accommodated only if he provided an official letter verifying his need for an accommodation. He knew he could not obtain that letter, as did Center One representatives. And he knew that he had more holy days coming up. See supra at 14-15.

Center One never backed off the unlawful verification requirement during Ford’s employment with the company. Brugos first told Ford of the official letter requirement on October 5. She reiterated the requirement when Ford gave her his calendar that same day, and again on October 6 when Ford gave her the email and calendar from his prospective congregation. See supra at 11-12. On October 7, Ford’s ERC notice included a note that he was to follow up with HR to provide documentation, another reference to the unlawful verification requirement. JA.679. At the ERC, O’Malley and Brugos repeated the official letter requirement, and Brugos told Ford he could afford no more unexcused absences. See supra at 13-14; see also JA.785 (Brugos email on October 12 saying Ford “still did not provide me documentation with the official letter head.”). And when Ford told Altman he was resigning, her response was that Center One was happy to accommodate Ford if he could provide the necessary documentation. See supra at 14-15. Brugos even acknowledged during her deposition that she knew at the ERC that Ford had no present avenue to obtain an official letter. JA.249-250. And yet, Center One persisted in enforcing its requirement.

A rational jury could easily conclude on these facts that Ford reasonably understood that he was being asked to choose between his job and his religion. In fact, during discovery, multiple Center One representatives corroborated Ford’s conclusion that more unexcused absences after the ERC would have inevitably resulted in termination. E.g., JA.231 (Brugos testifying that an employee who had accumulated enough points to warrant termination and who could not provide documentation excusing the absences after an ERC “would be terminated”); JA.330-31 (Fulciniti testifying that an employee who had accrued termination-level attendance points and conveyed an intention to continue missing work at an ERC would “be terminated”); JA.575 (O’Malley testifying that an “employee [who] had another attendance infraction after the ERC meeting” would be terminated).

The district court erred in holding otherwise. The court began by noting that Ford did not suffer any of the Clowes factors that could give rise to a constructive discharge. JA.22. Of course, Clowes does not encompass the entire universe of constructive discharge fact patterns. See Duffy v. Paper Magic Grp., Inc., 265 F.3d 163, 168 (3d Cir. 2001) (Clowes factors illustrative, not dispositive). EEOC is unaware of this Court ever applying Clowes to a religious accommodation claim where, as here, an employee is forced to choose between adhering to his religious beliefs or losing his job. And a jury could easily find that Ford was “threatened with discharge”—one of the Clowes factors—based on Center One’s imposition of attendance points for his absences on his holy days and its steadfast insistence that he obtain an official letter to avoid accruing more attendance points, which would have led inexorably to his termination.

The district court disputed that Ford faced inevitable termination, saying he resigned based on his “subjective belief” that Center One would terminate him if he continued to take days off for religious reasons without complying with its official verification requirement. JA.22-23, 25-26. On this basis, the court distinguished Young and Matos, saying that in those cases “a reasonable employee . . . would have understood that her employer was requiring her to choose between her job and her faith. That is not the case here.” JA.25. But that was precisely the choice Center One forced Ford to make.

The district court’s failure to see the clear analogy to Young and other cases where an employee has been forced to choose between work and religion was based on multiple misapprehensions of the record. For instance, the court relied in part on Ford’s testimony regarding his “feeling . . . that I was going to be fired the next time I had another day off.” JA.22 (quoting JA.452-53). But the court failed to acknowledge that Ford’s “feeling” was based on what Center One representatives had conveyed to him about what they required of him before they would accommodate him either retroactively or going forward. See supra at 9-15. As the district court acknowledged, Center One employees warned Ford “against future unexcused absences” at the ERC. JA.25. As far as Ford knew, any future absences for religious observation would be unexcused unless he could produce an official letter from a congregation leader verifying his need for accommodation, which he could not do in the near term.

The also court also pointed to Center One’s “accommodation” of Ford’s schedule change on October 11 to suggest that Center One was open to accommodating Ford’s religious observances had he only “continued to communicate” with Center One rather than resigning. JA.25-26. But the schedule change is a red herring. Schedule changes are dealt with differently than absences in the employee handbook and do not accrue attendance points. See JA.162 (employee handbook); JA.441 (Ford testifying supervisors “normally just always approve” temporary schedule change requests). The fact that Center One did not penalize Ford for changing his schedule on October 11 thus says nothing about whether it would excuse absences to observe holy days without an official letter.

Elsewhere in the opinion, the court said that the parties agreed that “the calendars and e-mail from Mr. Ford’s potential new congregation would have sufficed” to support “future requests for time off.” JA.9. The record shows the opposite. Although Center One’s corporate representative Ryan Lewis and Center One and CMS’s Chief Administrative Officer Julie Fulciniti both testified during discovery that the calendars that Ford provided should have been enough, JA.317-18 (Fulciniti); JA.404-05 (Lewis), the record is unequivocal that, in October 2016, Center One representatives uniformly told Ford he had to provide an official verification—a letter from a clergy on letterhead—in order to receive any accommodation, retrospective or prospective. See supra at 9-15. Moreover, the fact that Center One assessed Ford attendance points for his absence on October 12 (Yom Kippur), which O’Malley knew was a holiday for Ford, undermines the district court’s (mistaken) reasoning that Center One treated the documents he submitted on October 7 as sufficient to excuse absences going forward.

The district court failed to properly construe the record and as a result wrongfully held that no reasonable jury could conclude that Center One constructively discharged Ford. In fact, a jury could easily find that a reasonable employee in Ford’s situation would have understood that Center One was forcing him to choose between observing his religion and keeping his job, amounting to a constructive discharge.

2. Center One assigned demeritorious attendance points to Ford, altering the terms or

conditions of his employment.

A jury could also find that, apart from the constructive discharge, Center One’s assignment of attendance points to Ford for the days he missed to observe holy days was sufficiently “serious and tangible” to alter the terms, conditions, or privileges of his employment under this Court’s precedent because it made him eligible for termination. Storey, 390 F.3d at 764.^{^[6]}

Although this Court has not confronted the exact scenario presented here, where an employee has accrued enough demeritorious attendance points to be fired, this Court has reasoned in the harassment context that “[f]ormal reprimands that result in a notation in an employee’s personnel file could be sufficiently concrete” to constitute a Title VII violation. Robinson v. City of Pittsburgh, 120 F.3d 1286, 1298 (3d Cir. 1997), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Recently, a court in the District Court for the Eastern District of Pennsylvania held that where a written warning increases the chance of termination, it is sufficiently adverse to constitute an adverse employment action under this Court’s precedent. Dominici v. Reading Hosp./Tower Health, No. 5:18-cv-04181, 2020 WL 2898658 at *16 (E.D. Pa. June 3, 2020). Other courts have likewise acknowledged that reprimands with “signposts on a predetermined path to a true adverse employment action” could be actionable. Adams v. Anne Arundel Cnty. Pub. Schs., 789 F.3d 422, 429 (4th Cir. 2015); see also Dawson v. Wash. Gas Light Co., No. 1:18-CV-971, 2019 WL 4307865, at *5 (E.D. Va. Sept. 9, 2019) (written reprimand that progresses employee along discipline path “allowing further, more severe action to be taken . . . may be considered an adverse action”), aff’d, No. 19-2127, 2021 WL 2935326 (4th Cir. July 13, 2021); Dean v. Boeing Co., No. 05-1342-MLB, 2007 WL 9751652, at *6 (D. Kan. Jan. 25, 2007) (finding adverse action where discipline “was not just a warning, it was the second step in a three-step progressive discipline plan that could end in termination”), aff’d, 260 F. App’x 124 (10th Cir. 2008).

Here, it is undisputed that Center One’s assignment of attendance points to Ford made him eligible for termination, allowing a jury to find an alteration of the terms, conditions, or privileges of his employment. Center One’s employee handbook sets out a schedule of discipline associated with attendance violations. Accruing one point results in a first warning; two points invoke a second warning; three points trigger a final warning and ERC; four points merit termination. JA.152. Elsewhere, the handbook explicitly says, “[y]ou will be terminated if you reach two (2) attendance points within your Transition Period.” JA.150 (emphasis added). The separate attendance policy form that Ford signed provided that employees accruing or exceeding four points in their first ninety days of employment “are subject to disciplinary actions up to and including termination.” JA.640.

In depositions, Center One representatives agreed that the accrual of attendance points as set out in the handbook makes employees eligible for termination, which could inform a jury’s conclusion that the imposition of attendance points altered the terms or conditions of Ford’s employment. Brugos testified that “if you accrued a certain amount of points, you could potentially be terminated.” JA.216. She described the ERC as held to “discuss the attendance issues” “when somebody could potentially be eligible for termination.” JA.229. Fulciniti explained that Center One tried “to keep the employee with us” by putting employees who had hit their points limit on a “last chance agreement,” JA.335-36, though such an agreement was never offered to Ford, JA.353-54. O’Malley described the point system as “escalat[ing employees] in corrective action.” JA.562; see also JA.569 (describing ERC as for “employees who are at a point in the disciplinary process that may result in any further actions on the same track . . . that may result in them no longer being employed with us”).

Although Center One did not terminate Ford immediately after he accrued a termination-eligible attendance-point balance, under Center One’s employee handbook, Ford was eligible for termination at any time. Ford accrued four points during his transition period, double the amount required to make him eligible for termination. By October 4, Ford had been marked for final warning in the attendance system. JA.653. Ford, knowing he could be terminated at any time, was operating under materially different working conditions than an employee who had accumulated enough points to merit merely a first or second warning and could therefore afford to miss a day or more of work without facing termination. See JA.489 (Ford testifying regarding his understanding that “if you get more than four points, or four points or more, you are fired”).

This case is therefore unlike cases in which this Court has found preliminary or temporary written warnings do not violate Title VII. See Weston v. Pennsylvania, 251 F.3d 420, 431 (3d Cir. 2001) (temporary written reprimands were not an “adverse employment action”), overruled on other grounds by Burlington N., 548 U.S. 53; Burton v. Pa. State Police, 612 F. App’x 124, 127 (3d Cir. 2015) (notation in employment file that expired after six months was not “adverse”); Lanza v. Postmaster Gen., 570 Fed. App’x 236, 239-40 (3d Cir. 2014) (“preliminary warning of potential discipline” not an “adverse employment action”); Sconfienza v. Verizon Pa. Inc., 307 F. App’x 619, 621-22 (3d Cir. 2008) (advancement to the first step of a progressive discipline plan did not sufficiently affect the terms or conditions of employment to violate Title VII).

Ford’s attendance points made him termination-eligible, allowing a jury to find their imposition altered his terms, conditions, or privileges of employment. The district court therefore also erred when it held that Center One’s assignment of attendance points to Ford for days he missed work to observe his religion could not satisfy the third element of EEOC’s prima facie case.

Conclusion

For the foregoing reasons, EEOC respectfully requests that this Court vacate the grant of summary judgment to defendants and remand the matter to the district court.

Respectfully submitted,

GWENDOLYN YOUNG REAMS

Acting General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ANNE NOEL OCCHIALINO

Acting Assistant General Counsel

/s/ Georgina C. Yeomans

GEORGINA C. YEOMANS

D.C. Bar No. 1510777

Appellate Attorney

Office of General Counsel

Equal Employment Opportunity Commission

131 M St. NE, Fifth Floor

Washington, DC 20507

(202) 921-2748

georgina.yeomans@eeoc.gov

CERTIFICATE OF COMPLIANCE

Pursuant to 3d Cir. L.A.R. 28.3(d) & 46.1(e), I certify that, as an attorney representing an agency of the United States, I am not required to be admitted to the bar of this Court. See 3d Cir. L.A.R. 28.3, comm. cmt. I also certify that all other attorneys whose names appear on this brief likewise represent an agency of the United States and are also not required to be admitted to the bar of this Court. See id.

I certify that this brief complies with the type-volume limit of Federal Rules of Appellate Procedure 28(a) and 32(a)(7)(B)(i) because it contains 10,761 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(f) and 3d Cir. L.A.R. 29.1(b). This brief also complies with the typeface and type-style requirements of Federal Rule of Appellate Procedure 32(a)(5)-(6) because it was prepared using Microsoft Word for Office 365 ProPlus in Century Schoolbook 14-point font, a proportionally spaced typeface.

Pursuant to 3d Cir. L.A.R. 31.1(c), I certify that the text of the electronically filed version of this brief is identical to the text of the hard copies of the brief that will be filed with the Court. I further certify pursuant to 3d Cir. L.A.R. 31.1(c) that, prior to electronic filing with this Court, I performed a virus check on the electronic version of this brief using Trend Micro Office Scan, version 14.0 .8515, and that no virus was detected.

/s Georgina C. Yeomans

GEORGINA C. YEOMANS

CERTIFICATE OF SERVICE

On February 28, 2023 I filed the foregoing brief with the Clerk of the Court by using the CM/ECF system. Participants in the case are registered CM/ECF users, and service will be accomplished by the CM/ECF system.

/s Georgina C. Yeomans

GEORGINA C. YEOMANS

[1] We cite to R. and the district court document number when referring to district court documents that are not in the Joint Appendix. We refer to the page numbers stamped by the court at the top of the page.

[2] The parties filed overlapping portions of the relevant deposition transcripts in the district court. The Joint Appendix includes only non-duplicative pages from the transcripts, compiled from multiple district court exhibits.

[3] At the time of the events in question, Ms. Brugos went by Andrea Robel.

[4] The court cited the 2008 version of the Manual, which was superseded on January 16, 2021. The relevant portions the court relied on materially the same in the updated version. See EEOC Compliance Manual § 12-I-A-3 (Jan. 15, 2021), https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination.

[5] Title VII protects “individuals” from discrimination, encompassing employees and applicants. See 42 U.S.C. § 2000e-2(a)(1). We refer to the statute’s protection of employees throughout this brief, as Ford was an employee when the defendants failed to reasonably accommodate his religious practice.

[6] We use this Court’s precedential standard here, which speaks in terms of discipline or another “adverse employment action” that is “serious and tangible.” But it is EEOC’s position that Title VII’s plain terms broadly protect against discrimination “with respect to [Ford’s] compensation, terms, conditions, or privileges of employment,” without any added atextual requirement that the alteration be “serious and tangible.” See 42 U.S.C. § 2000e-2(a)(1); see also Chambers v. District of Columbia, 35 F.4th 870, 879-80 (D.C. Cir.) (en banc) (no “objectively tangible harm” required). The Supreme Court has asked for the government’s views on whether to grant certiorari in two cases raising this issue. See Davis v. Legal Servs. Ala., Inc., No. 22-231, 143 S. Ct. 560 (Jan. 9, 2023) (mem); Muldrow v. City of St. Louis, No. 22-193, 143 S. Ct. 560 (Jan. 9, 2023) (mem). Because Center One’s assignment of attendance points to Ford meets this Court’s standard, the Court need not revisit the “adverse employment action” standard here.