Tuesday, February 10, 2015

EEOC Loses Pattern-or-Practice Claim, Allowed to Pursue Individual Prayer Break Religious Discrimination Claims

In April 2011, the Equal Employment Opportunity Commission ("EEOC") filed a joint Bifurcation Agreement to bifurcate discovery and trial into two (2) phases:  Phase I involved the EEOC's pattern-or practice claims, and Phase II were for all individual claims for relief, and "[a]ny claims for which no pattern or practice liability was found in Phase I and any claims not tried in Phase I shall be tried under the traditional McDonnell-Douglas burden-shifting paradigm [in Phase II], including all claims of harassment/hostile work environment, as well as "[I]ndividual entitlement to back pay, compensatory, and punitive damages."

A trial was held on the EEOC's pattern or practice claims May 7-17, 2013.  At the close of evidence, the defendant, JBS USA, LLC ("JBS"), made an oral motion for judgment on partial findings pursuant to FRCP 52(c) and the Court concluded that although the EEOC established a prima facie case of denial of religious accommodation, the requested accommodations imposed an undue burden on JBS.  Thus, JBS argued that the Court's Findings of Fact and Conclusions of Law in Phase I preclude the individual Plaintiffs from pursuing claims of religious discrimination and retaliation in Phase II. 

In arguing for issue preclusion, JBS pointed out that the Court found that (a) JBS did not discipline or discharge any of its Muslim employees for praying, and (b) Somali-Muslim employees who left the plant the night of September 18, 2008, were terminated for withholding work and violating the Collective Bargaining Agreement ("CBA").  Thus, JBS asserted, these findings establish that its reason for terminating the employees was legitimate and nondiscriminatory, and preclude Plaintiffs from pursuing claims that they were terminated or otherwise retaliated against for requesting religious accommodation.  Furthermore, because the Court concluded the Plaintiff's requested religious accommodations would impose an undue hardship on JBS, JBS argued that they did not unlawfully deny Plaintiffs' requested religious accommodations.

Issue Preclusion

The opinion obviously discussed the 5 elements a party must show in order for issue preclusion to be found.  The Court then found that (1) the EEOC and the Individual Plaintiffs were in privity during Phase I, (2) the issue raised in the second proceeding was raised in the first proceedings by the party sought to be precluded and the fact that Phase II is to be analyzed under a different analytical framework (Teamsters pattern or practice analysis vs. McDonnell Douglas framework) has no bearing on whether issue preclusion apples, (3 & 5 were discussed jointly)  the issue of undue hardship were fully-litigated in Phase I and will not be re-litigated in Phase II.  However, with respect to employee discipline and reasons for termination, the Court held that they did not make a thorough and meaningful assessment of whether any Plaintiff suffered an adverse employment action as the result of discrimination or retaliation, because such claims were outside the scope of Phase I. 

Failure to Conciliate

JBS moved for summary judgment to dismiss the EEOC's three Phase I pattern or practice claims on the grounds the EEOC had failed to satisfy the conciliation requirement prior to bringing the lawsuit as case law and statute states, "The EEOC may bring a direct suit against an employer only after it has attempted to conciliate in good faith but failed to reach an agreement."  EEOC v. Trans State Airlines, Inc., 462 F.3d 987, 996 (8th Cir. 2006) (citing 42 U.S.C. sec. 2000e-5(f)(1); Johnson v. Nekoosa-Edwards Paper Co., 558 F.2d 841, 848 (8th Cir. 1977)).  The Court found that the EEOC's conciliation efforts allow it to avoid dismissal.

The Court also noted that since the time the Court first considered this issue, a circuit split has arisen as to whether failure to conciliate is an affirmative defense and the Supreme Court has granted certiorari on the question of "[w]hether and to what extent may a court enforce the EEOC's mandatory duty to conciliate discrimination claims before filing suit?"  Thus, the Court decided not to resolve the issue at this time, but did not preclude JBS from reasserting its position after the Supreme Court issues its opinion in Mach Mining, LLC v. EEOC.

The case is EEOC v. JBS USA, LLC, No. 8:10-CV-318 (D. Neb. Jan. 28, 2015),

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