On April 12, 2013, Judge Laurie Smith Camp of the U.S. District Court for the District of Nebraska issued her summary judgment opinion in EEOC v. JBS USA, LLC, No. 10-CV-318 (D. Neb. Apr. 12, 2013). In a mixed decision, Judge Camp gave the EEOC the benefit of the doubt on its investigation and conciliation efforts, but granted summary judgment on its claims for unlawful termination and retaliation, finding that a single mass termination of 80 employees did not constitute a “pattern or practice.”
We previously have blogged about the EEOC’s companion case pending before Judge Phillip Brimmer in the U.S. District Court for the District of Colorado and its thorny procedural and administrative issues (read more here, here and here). The series of rulings provide a window into the EEOC’s regular practices for prosecuting systemic claims and they are a valuable read for any employer facing large-scale EEOC litigation.
The EEOC filed two lawsuits alleging that JBS USA, LLC, which does business as meat packing company JBS Swift & Company, discriminated against a class of Somali Muslim employees at its facilities in Greeley, Colorado and Grand Island, Nebraska.
In the Nebraska suit, the EEOC alleged that JBS Swift engaged in a pattern or practice of religious discrimination when it failed to reasonably accommodate at least 153 Muslim employees by allowing them prayer breaks. The EEOC also alleged that the company retaliated against the employees and terminated their employment when they requested that the company move their evening breaks so that they could pray at sundown during the month of Ramadan.
JBS sought summary judgment on EEOC’s three pattern or practice claims, and the EEOC sought a ruling as a matter of law that JBS had engaged in a pattern or practice of denying reasonable accommodation. Id. at 3.
The Court’s Opinion On Investigation
JBS argued that the court should grant summary judgment because the EEOC failed to satisfy certain conditions precedent to filing suit, including investigation. Id. at 19.
JBS asserted that Section 707 authorizes only the EEOC to investigate charges of discrimination, and, therefore, the EEOC could not rely on the investigation performed by the Nebraska Equal Opportunity Commission (“NEOC”). The Court disagreed. The Court found that, because Section 707 incorporates the “procedures” set forth in Section 706, and Title VII supports worksharing between the EEOC and state and local agencies, it likewise permitted the EEOC to rely on investigation performed by NEOC. Id. at 21-24.
JBS also asserted that the EEOC failed to satisfy conditions precedent because the investigation was flawed and insufficient. Id. at 24. In rejecting JBS’s argument, the Court distinguished EEOC v. CRST Van Expedited, Inc. (read more here and here). Unlike EEOC v. CRST, JBS did not assert that the EEOC failed to identify or give it notice of the individual claims; rather, JBS asserted that the investigation was inadequate. The Court held that the EEOC enjoys “wide latitude” to investigate charges and, so long as an investigation occurred, the Court cannot review its sufficiency. Id. at 26.
The Court’s Opinion On Pattern Or Practice Claims
JBS also moved for summary judgment on the EEOC’s pattern or practice claims. JBS contended that the EEOC’s religious accommodation claims were inappropriate for pattern or practice treatment because, to show that unlawful discrimination occurred, each alleged victim must demonstrate a sincerely held religious belief. Id. at 30. The Court rejected JBS’s argument, but noted that to the extent individual workers’ beliefs varied, JBS could present this evidence during Phase I to show that accommodation would cause undue hardship. Id. at 31.
JBS also asserted that the EEOC could not make out a prima facie case because it could not show that discrimination was the company’s “standard operating procedure.” Id. at 32. The Court noted that the EEOC failed to produce statistical evidence showing disparities between protected and non-protected workers, but it nevertheless concluded that evidence of JBS’s purported company-wide policies regarding unscheduled prayer breaks created issues of fact for trial. Id. at 35.
Finally, JBS asserted that the EEOC could not establish a pattern or practice of unlawful termination or retaliation based on JBS’s isolated termination of 80 Somali Muslim employees. The Court agreed, noting that “multiple acts of discrimination are required to establish a pattern or practice.” Id. at 38. The EEOC did not allege that JBS adopted a discriminatory termination policy and, although it referred to 80 decisions, the mass termination was a single action in response to the events of a single day. Id. at 39.
Although a mixed bag, EEOC v. JBS contains some bright spots for employers. Most notably, Judge Camp rejected the EEOC’s theory that a mass termination is a “pattern or practice” simply because it involves multiple employees. Further, the Court found that, because the EEOC brought separate actions in separate forums, it could not introduce evidence from its Colorado action to bolster its inadequate claims. The opinions in both EEOC v. JBS cases thus provide valuable insight for employers facing large-scale EEOC pattern or practice claims.