In this religious discrimination case, Center One
does not deny that Charging Party Demetrius Ford sincerely adhered to Messianic
Judaism, nor that Ford notified Center One that his religion required that he
abstain from work on certain holy days. Center One contests only that it
subjected Ford to an adverse employment action arising from the conflict
between his job and his religion.
But, as EEOC argued in its opening brief,
a jury could reasonably conclude that Ford suffered two adverse employment
actions that arose from Center One’s failure to reasonably accommodate Ford’s
religious practice. First, a jury could find that Ford requested an
accommodation and that Center One refused to provide it until Ford met its
unreasonable verification requirement. Because Ford could not meet this
requirement, and because Center One continued to insist on the verification
after Ford said he could not provide it, Ford resigned based on his reasonable
conclusion that Center One required him to choose between practicing his
religion and keeping his job. Thus, a jury could find Center One constructively
discharged Ford.
A jury could also conclude, we argued,
that Center One altered Ford’s employment conditions when it assigned him
attendance points for missing work to observe his religious holy days. Ford
accrued enough attendance points to merit termination, according to Center
One’s handbook. A jury could reasonably find that Ford advanced along Center
One’s progressive discipline ladder, and that he labored under materially
different conditions than his peers who could afford some leeway with their
attendance and punctuality before facing termination.
Center One tries to evade this result by asking
this Court to ignore persuasive case law addressing parallel circumstances, and
by crafting its own narrative, in which Center One would have accommodated Ford
had he simply divined an unwritten, unspoken path to successfully requesting an
accommodation. In service of its argument, Center One invokes inapt legal
principles and ignores record evidence, including its own handbook, testimony
and contemporaneous emails from its own representatives, and testimony from
Ford.
At trial, Center One will be free to argue
that the jury should discount the evidence that contradicts Center One’s
arguments. But here, on a review of summary judgment, Center One and this Court
must confront all the evidence, construed in the light most favorable to the
EEOC. When properly construed, the record reveals a myriad of material factual
disputes that should have precluded the district court from granting summary
judgment for Center One. The district court’s summary judgment decision should
therefore be vacated.
To start, we clarify that although Center
One claims (at page 43) that it merely requested, but did not require, Ford to
provide official verification, the record would easily permit a jury to find
otherwise. See, e.g., JA.431 (“Demetrius 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.433 (Altman told Ford that
“if he could not provide the letter th[e]n we could not accommodate that
religion.”); JA.220-21 (Brugos testifying she could not accept the calendar
because “[i]t was not what the company policy stated I needed from him at the
time”); JA.213-14 (Brugos testifying that any employee requesting accommodation
would “need to provide a letter on an official letterhead from the church,
congregation, religious entity” before being accommodated).
Regarding the merits of its requirement, Center
One has offered shifting post-hoc rationales for requiring that Ford provide an
official verification from a congregation before it would accommodate him, including
a new rationale on appeal. But none of its explanations merit concluding as a
matter of law that it acted reasonably.
In the
district court Center One defended its verification requirement as reasonable “in
light of the timing of Ford’s request” for accommodation. R.117 at 4; see also R.103 at 20 (Center One describing the request
as reasonable because “Center One had no advance notice as to Ford’s work
schedule conflict,” “Ford did not make the request for religious accommodation
until after he accrued a number of attendance points,” and “Ford was still in
his probationary period”). EEOC explained in its opening brief why that explanation
contradicts the record evidence. See EEOC
Br. at 36-38.
On appeal, Center One abandons the timing
justification and concedes that it could not “insist on a specific form of
notice” once Ford notified Center One of his need for an accommodation. Resp. Br. at 47 & n.4 (conceding “employers ‘may not insist on a
specific form of notice if the facts otherwise show the employee conveyed
enough information’” (quoting EEOC Br. at 27)). It argues nonetheless that its requirement
was a reasonable attempt to “ascertain the specific contours of any reasonable
accommodation” to clarify which days Ford would need off. Resp. Br. at 47. This post-hoc contours rationale
likewise finds no basis in either the record or the law.
Starting with the record, Center One does
not identify any evidence that Ford expressed confusion to anyone at Center One
in 2016 about what days he needed off. It relies instead on Ford’s testimony,
four and a half years later, in which he expressed confusion about the exact
dates on which he observed holy days in 2016. Id. The evidence regarding what actually
happened in 2016 shows that Ford knew the dates that he needed to abstain from
work, that he gave advance notice as to those dates, and that his observance of
Rosh Hashanah and Yom Kippur conformed with the dates listed on the calendar he
provided to Center One.
Ford testified
that he knew “within a week” of Rosh Hashanah when the holiday would take place.
JA.511-13. Accordingly, Ford told Altman one or two days in advance that he
needed to miss work on October 3 and 4 to observe Rosh Hashanah. JA.498-99.
Ford “became aware of the exact dates” of the remainder of the imminent holy
days after he contacted Rock of Ages and obtained a calendar from the
congregation, which was no later than October 4. JA.511-13; see also JA.621-24
(October 4 email from Rock of Ages to Ford). When asked, Ford gave Brugos the
calendar of holy days. That calendar confirmed that Rosh Hashanah was observed
on the 3rd and 4th (the dates Ford was absent), and gave Center One notice that
Yom Kippur began at sunset on the 11th and required Ford to abstain from work
on the 12th (which he later did). JA.624; JA.631. Brugos rejected the calendar
not because Ford equivocated about its accuracy or because it differed from the
dates Ford had already observed for Rosh Hashanah, but because “anyone could
print” it. JA.219-221; JA.483; JA.528-29. Center One representatives even acknowledged,
after the fact, that the calendar Ford gave Brugos provided enough information
to accommodate Ford because it “has the specific days when needed off.” JA.404-05,
JA.317 (Fulciniti testifying the calendar “would have been sufficient” had Ford
submitted it when he was hired).
Center One’s citation to Ford’s 2021
deposition testimony, in which he (inaccurately) recalled observing holy days
on dates different from those listed on the calendar he gave to Brugos, is
disingenuous given the record evidence showing that Ford conformed his practice
to the printed calendar and did not equivocate in 2016 about the dates he
needed to miss work. And Center One’s claim that EEOC presented a “gross
mischaracterization of the facts of record” in arguing that Ford gave advance
notice of the dates he would need off work is baffling, given the record
evidence cited above, throughout this brief, and in our opening brief
establishing that he did just that. See Resp.
Br. at 45.
Center One also claims that it was
entitled to require verification because Ford “did not follow Center One’s
established procedure for requesting time off on October 3 and 4, 2016.” Resp. Br. at 46. That is untrue. The record
shows Ford told Altman before Rosh Hashanah that he would be absent on October
3 and 4 for religious observance. JA.498-99.
He thus complied with the procedure Center One’s corporate representative
testified was in place in 2016. See JA.394-96. Because Ford sufficiently
described his religious practice, through his conversations with Altman and
through the calendar, Center One could not reasonably insist on congregation
verification. See Shelton v. Univ. of
Med. & Dentistry of N.J., 223 F.3d 220, 223, 225 (3d Cir. 2000)
(holding the employer may not demand an official pastor letter when the
employee had sufficiently self-described her religious practice); 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.”).
Turning to the law, Center One does not
defend the district court’s citation to section
12-IV-A-2 of EEOC’s Compliance Manual, which allows an employer, when it has a “bona
fide doubt as to the basis for an accommodation request,” “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 accommodation.” EEOC Compliance Manual § 12-IV-A-2 (Jan. 15,
2021), https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination.
In any event, EEOC’s opening brief explained why that section is inapt. EEOC Br. at 35-36.
Instead, Center One argues that its
official verification requirement is justified by section 12-I-A-3 of the Compliance Manual. Resp. Br. at 43-44. That
section provides that if an 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. But Center One does not argue on appeal that it had an
objective basis for questioning the religious nature or sincerity of Ford’s
belief, observance, or practice. Center One therefore cannot rely on this
provision of the Compliance Manual to justify its actions.
Indeed, as EEOC’s opening brief
explained, the record evidence shows that Center One did not doubt Ford’s
sincerity. See JA.217 (Brugos testifying she did not question Ford’s
sincerity); JA.374, 388 (Center One’s corporate representative testifying that
Center One did not question employees’ religious beliefs, including Ford’s). The
verification requirement was based on a blanket policy, not specific concerns
related to Ford. See EEOC Br. at
37; JA.213-14 (Brugos testifying that any employee requesting accommodation
would be required to produce “a letter on an official letterhead from the
church, congregation, religious entity” before being accommodated); JA.220-21
(Brugos testifying she could not accept the calendar because “[i]t was not what
the company policy stated I needed from him at the time”); JA. 430-41 (Brugos
acknowledging Ford’s calendars, but concluding “we had to remain consistent
with our policy and needed the documentation with an official letterhead before
accommodating Demetrius’[s] needs”). In point of fact, Brugos characterized the
email from Ford’s prospective congregation as “better” than the calendar of holy
days Ford initially provided because it “mov[ed] in the right steps of actually
obtaining the letter on official letterhead.” JA.242. Center One wanted an
“official letterhead” for the sake of complying with its blanket, unwritten
policy, not because it doubted Ford’s sincerity.
Center One’s analogy to the Americans with Disabilities Act (ADA) context
also fails. Center One cites (at page 48), 29
C.F.R. pt. 1630, app. § 1630.9, which requires an employer facing a
request for a disability-related accommodation to “consult with the individual
with a disability to ascertain the precise job-related limitations imposed by
the individual’s disability and how those limitations could be overcome with a
reasonable accommodation.” Putting aside important differences between
employers’ duties under Title VII and the
ADA, the fact that Center One knew Ford
was a Messianic Jew who needed to abstain from work on the specific holy days
Ford identified is dispositive. Center One’s
rigid insistence that Ford meet an official letter requirement Center One knew
he could not meet, and then using his inability to produce that letter against
him despite knowing which dates he needed off from work, does not constitute
consulting or cooperating with Ford to reach a reasonable accommodation. See
JA.248-50 (Center One knew as of Ford’s Employment Review Committee meeting
on October 12 that Ford could not provide a congregation letter, but continued
to insist upon it); JA.431 (“PattiSue [O’Malley] then asked if it was a
requirement to go to a place of worship, then why has he not gone to his new
congregation in order to observe the holidays?”); cf. EEOC v. Ithaca Indus., Inc., 849 F.2d 116,
118 (4th Cir. 1988) (Title VII violated
where employer “made no specific effort to accommodate” employee’s religious
practice).
Ultimately, if Center One was simply trying
to “gather information” to pin down the dates Ford needed to miss work to
“manage employee attendance and coverage,” as it now claims, Resp. Br. at 46, 49, it could have relied on
the calendar Ford gave to Center One listing holy days for which “no work is
permitted.” JA.624. To the extent Center One suspected that calendar varied
from Ford’s practice, Center One could have asked Ford directly to state or
write down the dates he needed to miss work. Certainly, a jury could reasonably
conclude that Center One acted unreasonably when it insisted on official
congregation verification, particularly after Center One knew Ford could not
provide that verification.
Nowhere in its brief does Center One dispute that
EEOC established the first two prongs of a prima facie religious discrimination
case: that Ford sincerely adhered to Messianic Judaism and that Ford notified
Center One of the conflict between his religious practice and his work
obligations. We therefore turn to the sole disputed prong: whether Ford
experienced an adverse action because of the conflict between his religious
practice and his work obligations. As established in EEOC’s opening brief, a
jury could conclude that Center One constructively discharged Ford. A jury
could also conclude that Center One altered Ford’s employment conditions when
it assigned him attendance points for his religiously compelled absences. In
arguing to the contrary, Center One misapplies the applicable legal standards
and construes disputed facts in its favor.
As discussed above and in EEOC’s opening
brief (pages 39-49), a jury could reasonably conclude that Ford resigned
because Center One required that he provide a congregation letter verifying his
religious practice before it would accommodate him; Ford could not obtain that
letter, which Center One knew; and Center One had told Ford that he could not
afford any further unexcused absences. A jury could therefore reasonably
conclude that Center One put Ford to the intolerable choice of abandoning his
faith’s requirements or losing his job.
Center One counters that Ford resigned
voluntarily, based on his own “subjective assumptions,” and “[b]efore any
determination had been made concerning his request for religious
accommodation.” Resp. Br. at 26, 32. But
Center One does not explain what “determination” was still pending at the time
Ford resigned. The record shows that Center One had already decided that it
would not accommodate Ford absent an official verification, which Center One
knew Ford could not provide, and that it never wavered from that determination.
By Ford’s October 12 ERC, Brugos testified, Center One knew Ford was not a
member of a congregation, and that there was no congregation leader that could
provide him an official verification letter. JA.248-50. And yet, at the ERC,
Center One continued to insist Ford meet that requirement before it would
accommodate him, id.; see also
JA.244, 431, 560, and told Ford that he could afford no more unexcused
absences, JA.488; see also JA.353 (Fulciniti testifying that after ERC,
Center One was “just going to keep his attendance points as was, at that time,
unless he had anything else to submit”). When he resigned, Altman told Ford
explicitly that “if he could not provide the letter th[e]n we could not
accommodate that religion.” JA.433; see also JA.353. The parties were at
an impasse that only Center One could clear. As the Fifth Circuit said in Young v. Southwestern Savings & Loan
Association, it would be “too nice a distinction” to say that Ford should
have waited to be fired, rather than terminating his association with Center
One once it became clear that Center One had no intention of accommodating his
religious practice. 509 F.2d 140, 144 (5th
Cir. 1975).
Center One claims that it “continued to
work with [Ford] on his attendance.” Resp.
Br. at 26. In support, Center One cites to inapt summary judgment filings in
which it admits that Ford was in his transition period and that Center One
assessed Ford five-and-a-half attendance points. Id. (citing JA.730 ¶ 8; JA.745-46 ¶
69). Center One also cites documents discussing the purpose of ERC meetings
generally, and Fulciniti’s testimony that Center One often tries to retain
employees who have accrued termination-level attendance points by offering them
a “last chance agreement,” though Center One did not offer one to Ford. Id. at 26-27 (citing JA.805 ¶ 152;
JA.145; JA.335-36); see also JA.353-54. None of these documents supports
the contention that Center One was in any way working with Ford, rather than
insisting that he provide a verification letter before it would consider
accommodating his religious practice. Moreover, Center One’s claim that it
“wanted [Ford] to remain in its employ,” Resp.
Br. at 27, is at least disputed, given that Center One made no move to stop
Ford from resigning, even though he explicitly told Altman he was resigning
because Center One refused to accommodate his religious practice. JA.433 (Ford
told Altman “he could not continue to work for a company that did not
accommodate his religious beliefs”); JA.684 (H.R. “accepted his voluntary
resignation,” which he tendered “due to him not being able to provide proper
documentation for his religion”); JA.647 (noting Ford resigned because he
“could not provide proper documentation for [his] religion needed for Human Resources”);
JA.497 (Ford testifying he told Altman he was resigning because he had more
holy days coming up). A jury could easily conclude on this record that Center
One wanted Ford out, not that it wanted him to stay.
Center One also declares that “no requested
leave was ever denied to Ford. In fact, all dates that Ford requested off in
observance of his religion were granted.” Resp.
Br. at 28. This statement contradicts the record in several respects. First, it
requires this Court to ignore (as Center One does, without explanation) Ford’s
testimony that he told Altman in advance that he needed to miss work for Rosh Hashanah.
See JA.498-99. see also Resp.
Br. at 32 (claiming, incorrectly, that Ford “first alerted” Center One that he
needed to abstain from work for Rosh Hashanah “on or about” October 7). It
would also require the Court to ignore the permissible inference that Ford told
Vaughn in advance of Rosh Hashanah that he would be absent, given Brugos’s
statement that Vaughn told her at the beginning of October, “a few days” before
October 5, that Ford required an accommodation. See JA.430; JA.528-29; EEOC Br. at 30. Despite that advance notice,
Center One assessed Ford attendance points for his Rosh Hashanah absences,
thereby denying his request for time off. This Court and Center One cannot
ignore this evidence at summary judgment; instead, the evidence must be credited
as true and justifiable inferences must be drawn in EEOC’s favor. See Meditz v. City of Newark, 658 F.3d 364,
369-70 (3d Cir. 2011).
Second, crediting Center One’s claim that
“no requested leave was ever denied to Ford” would require this Court to credit
Center One’s apparent argument that Ford should have requested leave for holy
days through the Temporary Schedule Change form (sometimes referred to in the
record as “TSC”). See, e.g., Resp.
Br. at 32 (“Ford was reminded of the company’s procedures for submitting a TSC
Form.”); id. at 33 (“He was simply
asked to abide by Center One’s procedures for requesting time off, and when he
did so – said request was granted.” (emphasis omitted)); id. at 35 (“In the one instance in which
Ford followed Center One’s procedures . . . the company granted his request and
he was permitted the requested time off.”). But a jury could find the Temporary
Schedule Change form was not the mechanism for requesting religious
accommodation and could not be used to request time off.
The record shows that Center One had no
written procedure for requesting time off for a religious accommodation. According
to testimony from Center One’s corporate representative, which Center One does
not confront or acknowledge, the company’s unwritten procedure required
employees to notify H.R. or their supervisor as to their required
accommodation. JA.394-96; see also JA.355-356 (Fulciniti testifying to
same). Ford did just that at the start of his employment and then repeatedly
thereafter. See EEOC Br. at 28-31.
By contrast, the evidence shows that a Temporary
Schedule Change form could be used to shift an employee’s hours, not as a
mechanism for an employee to miss work altogether. Brugos explained the
distinction in her email to Szarowski, Hurtgam, and Altman, writing that she
needed to figure out “how many days [Ford] needs to be off versus how many days
we could do a TSC for (some of the holidays require him to be off all day and
others state that he needs to stop working by ‘sun down’).” JA.529. Accordingly,
Ford successfully used the form to shift his working hours on October 11, from
his normal shift of 12:30 p.m.-9 p.m. to a modified 9 a.m.-5:30 p.m. shift so
that he could observe Yom Kippur’s start at sunset. See JA.660 (Ford’s
schedule change form); JA.480 (Ford testimony regarding TSC form); JA.623-24
(calendar Ford provided to Center One listing Yom Kippur on October 12 and
noting “a holiday begins on the sunset of the previous day”); see also JA.477
(Ford testifying he explained to Vaughn, “I’m allowed to work up until
sundown”). Despite Center One’s representations to the contrary, e.g., Resp. Br. at 33, 35-36, Ford worked a full day
on October 11; he was not granted any “time off.”
Aside from inaccurately claiming that
Ford used the form to successfully “request[] time off,” Resp. Br. at 33, Center One does not point to
any evidence to back up its claim that the Temporary Schedule Change form “is
to be used by any associate seeking a day off.” Resp. Br. at 35. Center One’s own handbook
suggests the exact opposite. According to the handbook, a Temporary Schedule
Change form may be used up to twice per month when an employee needs to
“change” their “schedule,” for instance to accommodate a “personal
appointment.” JA.162. The form itself asks employees to list their current
schedule and then to list their requested temporary schedule. JA.660. An employee who requests an
adjustment to their regular schedule without providing 48 hours’ notice via the
Temporary Schedule Change form commits a “schedule switch” violation. JA.148.
This violation also accrues when an employee fails to punch in before the start
of their scheduled shift or punches out before their shift ends. JA.149. A
“schedule switch,” like an early departure, results in one-half of an attendance
point. JA.151.
The Temporary Schedule Change form was
therefore not a solution to Ford’s accommodation problem. On the days that Ford
was required to abstain from work altogether, rather than merely to wrap up his
workday before sunset, shifting his working hours would in no way accommodate
his religious practice.
Turning from the record to case law, we
first point out that Center One’s opening definition of “constructive discharge
as a ‘worse case scenario’ of harassment” is misplaced. See Resp. Br. at 24 (citing Pa. State Police v. Suders, 542 U.S. 129
(2004); Spencer v. Wal-Mart Stores,
Inc., 469 F.3d 311 (3d Cir. 2006); Duffy
v. Paper Magic Grp., Inc., 265 F.3d 163 (3d Cir. 2001)). EEOC alleged that
Center One constructively discharged Ford by making him choose between his
religion and his job, not that Ford was harassed to the point that he was
compelled to quit.
Center One highlights the lack of binding
authority from this Court confronting a scenario matching the theory EEOC
alleged, in which an employee is forced to choose between his job and his
religious practice. As we acknowledged in our opening brief, this Court has not
decided a case with this precise factual pattern, and therefore has not had an
opportunity to embrace this theory. EEOC
Br. at 40-41. But, as we explained, other circuits presented with this fact
pattern have provided persuasive reasoning that this Court should adopt. See
EEOC v. Consol Energy, Inc., 860 F.3d
131 (4th Cir. 2017); Young, 509 F.2d 140.
Center One’s attempt to distinguish Consol Energy is unpersuasive, as it
relies on its inaccurate claim that Ford provided no notice of his Rosh Hashanah
absences until October 7. Resp. Br. at 32;
see supra 16-17 and EEOC Br. at
28-31 (explaining the record shows otherwise). It also relies on the claim that
the Temporary Schedule Change form was the appropriate mechanism for requesting
religiously compelled days off, which, again, is incorrect. See supra 17-20.
Center One uses this faulty premise to distinguish Mathis v. Christian Heating & Air
Conditioning, Inc., 158 F. Supp. 3d 317 (E.D. Pa. 2016), as well. Resp. Br. at 32-33.
Center One tries to distinguish Young in
a parenthetical by claiming that the plaintiff in Young “was told that
the [objectionably religious staff] meetings were mandatory and asked to
provide a letter of resignation,” whereas Ford was not asked to resign. Resp. Br. at 33. That argument ignores that
Young’s supervisor asked for a resignation letter from her only after Young “advised
[her supervisor] that she was checking out her cash drawer, turning in her
keys, and leaving Southwestern,” i.e., after Young had stated that she
would no longer work at Southwestern. 509
F.2d at 142. Young’s supervisor asked for an official letter communicating her
resignation, and Young refused, maintaining that she was being fired. Her
supervisor then “assured her that she was not being fired.” Id. Still, the Fifth Circuit found that
Young was constructively discharged, given the reasonable inference she drew
that if she could not attend the staff meetings, she would be discharged. Id. at 144. In reality, the facts in Young
are strikingly similar to the facts at hand: An employee resigns after
reasonably perceiving, based on her employer’s actions, that she will be fired
if she continues to honor her faith.
Center One’s claim that Laster v. City of Kalamazoo, 746 F.3d 714
(6th Cir. 2014), supports the district court’s decision is misplaced. In that
case, the Sixth Circuit held that a police officer who opted to retire before
attending a disciplinary pre-determination hearing, at which he feared he might
be fired and therefore lose his health insurance, was not constructively
discharged. The plaintiff quit because he was under the impression that he
would be fired at the pre-determination hearing, based on speculation by
someone who had “no say in the decision-making process, and was not privy to
any inside information.” Id. at
728. By contrast, Ford resigned based on information he received from human
resources representatives—i.e., decisionmakers who were privy to inside
information. It was reasonable for him to rely on that information in
concluding that his job and his religious practice would not be reconciled
before his next holy day.
Finally, Center One’s reliance on Gray v. York Newspapers, Inc., 957 F.2d 1070
(3d Cir. 1992), and its language discussing employee resignations over
“frustrations, challenges and disappointments,” or “workplace grievance[s],” id.
at 1083; Resp. Br. at 29, unduly minimizes
the intolerable situation Ford faced. It reflects Center One’s consistent
failure to recognize that Ford has a federal right to be free from religious
discrimination in the workplace, which includes an obligation on Center One’s
part to reasonably accommodate his religious practice absent undue hardship.
Ford resigned not because he was frustrated, nor because he imagined some
unlikely scenario in which Center One would terminate him for exercising his
religion. Ford knew, because Center One representatives told him, that he could
miss no more workdays without excuse. And he knew, because Center One
representatives told him, that any absences for religious observance
unaccompanied by a clergy letter would be unexcused. A reasonable jury could
find he resigned based on a true and intolerable conflict between his religious
practice and keeping his job.
EEOC also established the third prima
facie prong by showing that Center One altered the conditions of Ford’s
employment when it assigned him termination-level attendance points. As EEOC
explained in its opening brief, and as EEOC has consistently argued throughout
this litigation (not, as Center One says, for the first time on appeal, Resp.
Br. at 18), Ford’s attendance points made him eligible for termination,
rendering his working conditions materially different from a coworker without
attendance points, who could therefore afford to miss a day of work or show up
late without being fired. EEOC Br. at 50-55;
R.110 at 2-5.
As EEOC acknowledged in its opening
brief, this Court has not confronted the exact factual scenario presented here,
in which an employee accumulates enough points to merit termination. It is
therefore unsurprising that the case law available is either distinguishable or
non-binding. Center One’s attempts to explain away the relevant cases, however,
overstate the pertinent differences between those cases and this one.
Contrary to Center One’s argument, the
relevant language in Dominici v.
Reading Hospital/Tower Health, No. 5:18-cv-04181, 2020 WL 2898658 (E.D. Pa.
June 3, 2020), is not dicta. In Dominici,
the court held that, because the written warnings the plaintiff received were
part of a progressive discipline system, the warnings were themselves adverse.
The plaintiff’s termination was also adverse. Id. at *16 (“The evidence therefore shows
that the written warnings, in addition to Dominici’s termination, are adverse
employment actions.”).
Similarly, in Dawson v. Washington Gas Light Co., No.
1:18-cv-971, 2019 WL 4307865 (E.D. Va. Sept. 9, 2019), the court held that the
plaintiff’s “first-step written reprimand” may, standing alone, “be considered
an adverse action” because it “move[d the] employee further up the steps” of
the operative progressive discipline system. Id. at *5. To reach this result, the court
drew upon the language from Adams v.
Anne Arundel County Public Schools, 789 F.3d 422, 429 (4th Cir. 2015), that
EEOC cited in its opening brief (at page 51).
The fact the plaintiffs in Dominici and Dawson were ultimately fired established
that the discipline systems in those cases were progressive, which informed the
courts’ judgment that the individual steps in the progressive system were also
adverse. Here, a jury could reasonably find that Center One’s point system was
progressive, given the clear language in the employee handbook and testimony
from Center One representatives. See JA.150, 152, 640; see also JA.230
(Brugos confirming ERC meeting is a “step in the discipline process,” and
“corresponded with one of the final steps of discipline before termination”);
EEOC Br. at 52-53 (discussing Center
One representative testimony). If it was, this case aligns comfortably with Dominici and Dawson in that the steps in the
progressive system are adverse.
More importantly, there is no barrier in
this Court’s precedent to holding that Center One altered Ford’s working
conditions when it assigned him termination-level attendance points. And, as a
matter of common sense, an employee who can afford no more missteps labors
under materially different circumstances than his peers. See EEOC Br. at 53-54.
For the foregoing reasons and the reasons
in EEOC’s opening brief, the judgment of the district court should be vacated
and the case remanded for further proceedings.
Respectfully
submitted,
GWENDOLYN
YOUNG REAMS
Acting
General Counsel
JENNIFER
S. GOLDSTEIN
Associate
General Counsel
ANNE
NOEL OCCHIALINO
Assistant
General Counsel
s/Georgina
C. Yeomans
GEORGINA
C. YEOMANS
Attorney
Equal Employment
Opportunity Commission
Office
of General Counsel
131
M St. N.E., 5th Floor
Washington,
D.C. 20507
202-921-2748
georgina.yeomans@eeoc.gov
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(c) and
32(a)(7)(B)(ii) because it contains 5,397 words, excluding the parts of the
brief exempted by Federal Rule of Appellate Procedure 32(f). 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 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
Dated: June 1, 2023
