United States: Back On The Butcher's Block: Court Chops Down Meat Packing Employer's Witness List In EEOC Religious Discrimination Case

Last Updated: March 29 2016
Article by Gerald L. Maatman Jr. and Alex W. Karasik

In a pair of EEOC religious discrimination cases brought in Nebraska and Colorado against meat packing company JBS USA, LLC (which we have blogged about here, here, here, here, here, and here), the lawsuits alleged that JBS discriminated against its Muslim employees on the basis of religion by engaging in a pattern or practice of retaliation, discriminatory discipline and discharge, harassment, and denying its Muslim employees reasonable religious accommodations. While JBS successfully obtained summary judgment in the Nebraska case (with the EEOC still being able to pursue individual claims, as we discussed here), in the ongoing Colorado litigation, EEOC v. JBS USA, LLC, Case No. 10-CV-02103 (D. Colo.), Judge Philip A. Brimmer of the U.S. District Court for the District of Colorado recently ordered that only 30 of the 103 witnesses that were untimely disclosed by the employer may be used in "Phase I" of the pending litigation.

While this Colorado case is still "a work in progress" in terms of the litigation process, this "slice" of an order is important for employers in that it illustrates how identification of witnesses during discovery can later lead to rulings "served cold" from the chopping block of unsympathetic courts.

Case Background

In 2010, the EEOC filed two similar lawsuits alleging that JBS, which does business as JBS Swift & Company, discriminated against a class of Somali Muslim employees at its facilities in Greeley, Colorado and Grand Island, Nebraska. During Ramadan 2008, the employees requested that JBS accommodate their need to leave the production line to pray at or near sundown. The employees and JBS were unable to come to an agreement regarding the employees' need to pray, leading to the suspension and termination of a large number of Muslim employees based on job abandonment. In the Nebraska case, Chief Judge Laurie Smith Camp of the U.S. District Court for the District of Nebraska entered judgment for JBS, finding that the employer established the affirmative defense of undue hardship since "a religious accommodation for Muslim employees...within the parameters requested [by the EEOC] would have caused more than a de minimis burden on JBS and on its non-Muslim employees." However, that Court later ruled that its earlier findings did not necessarily preclude the EEOC from pursuing individual claims for religious discrimination or retaliation.

In the Colorado action, the Court bifurcated the case, resulting in the following "Phase I" issues: (1) the EEOC's claim that JBS engaged in a pattern or practice of denying Muslim employees reasonable religious accommodations; (2) the EEOC's retaliation pattern or practice claim; and (3) the EEOC's discriminatory discipline and discharge pattern or practice claim. At the close of "Phase I" discovery, JBS sought summary judgment on all three of EEOC's Phase I claims. On July 17, 2015, Judge Brimmer denied JBS' motion for summary judgment, which was based in part on JBS' argument that its favorable decision in the Nebraska case collaterally estopped the EEOC from advancing its claims.

Relevant here, on October 27, 2011, the magistrate judge entered a scheduling order providing that under Section § 8(d)(2), "[Plaintiffs] will identify aggrieved employees for Phase I only by November 15, 2011. [Defendant] will identify Phase I witnesses by December 15, 2011. Either party may amend list up to 60 days thereafter. Subsequent amendments may be made only on a showing of good cause, which shall not include lack of diligence." Id. at 2.

In February and March of 2013, JBS attempted to disclose 103 additional witnesses through three supplemental disclosures. The EEOC moved to strike JBS' additional witnesses, arguing their disclosure violated § 8(d)(2). On March 25, 2014, the magistrate judge issued an order granting the EEOC's motion to strike, to which JBS subsequently objected. On May 7, 2014, JBS filed a motion to amend the Scheduling Order, arguing that good cause existed to allow JBS to disclose the 103 witnesses stricken by the magistrate judge's March 25, 2014 order. On March 17, 2015, the magistrate judge granted JBS' motion, concluding that JBS established good cause to amend its Phase I witness list under § 8(d)(2). On April 7, 2015, the EEOC filed an objection to the March 17, 2015 order. Id. at 3.

Addressing both parties' various objections and motions to amend the scheduling order, on March 16, 2016, Judge Brimmer entered an order that ultimately directed JBS to select and disclose to the EEOC a list of 30 of the 103 additional witnesses it seeks to add to its Phase I witness list, and that such witnesses shall be deemed timely designated on the dates they were originally disclosed to EEOC. Id. at 25. In addition, the Court ordered that any motion by the EEOC to reopen discovery is to be filed within two weeks of JBS' disclosure, and should indicate for how long discovery will be reopened for the limited purpose of deposing JBS' additional witnesses. Id.

The Court's Decision

The Court initially addressed JBS' objections to the magistrate judge's order granting the EEOC's motion to strike the untimely-disclosed 103 witnesses. First, JBS argued that the magistrate judge misapprehended its position by failing to consider its argument that Rule 26 permitted the additional witness disclosures. Overruling this objection, the Court noted that under Rule 16, a scheduling order could properly modify the timing of Rule 26 disclosures. Id. at 5. JBS also argued that the magistrate judge's interpretation of § 8(d)(2) was prejudicial to its case, but the Court also rejected this argument given JBS' current position that it could now show good cause to add witnesses. Id. at 7-8. Finally, the Court rejected JBS' argument that the magistrate judge failed to apply Burks v. Okla. Publ'g Co., 81 F.3d 975 (10th Cir. 1996), which JBS claimed was controlling Tenth Circuit precedent, since JBS never raised the argument before the magistrate judge and therefore it was deemed waived. Id. at 9.

Next, the Court addressed the EEOC's challenges to several aspects of the magistrate judge's March 17, 2015 ruling that JBS showed good cause to allow it to amend its Phase I witness list under § 8(d)(2) of the Scheduling Order. Id. at 10. The parties disputed whether good cause was shown. The EEOC argued that when examining JBS' justifications for the untimely disclosure of each individual witness, as opposed to examining JBS' justifications in the aggregate, JBS' showing was insufficient to establish good cause. While the Court acknowledged that JBS compiled a significant amount of information to establish good cause, including the dates and citations to relevant deposition testimonies and the identification of prior inconsistent statements, it held that JBS' attempt to show good cause did not withstand scrutiny. Id. at 13.

The Court further rejected JBS' arguments concerning the difficulty of witness identification, which it alleged was caused by language barriers and employees only knowing other employees' first names, holding that JBS did nothing to address these challenges which should have been apparent at the outset of the case. Id. at 13-14. Further, noting that JBS was required to conduct its own investigation of potential witnesses, the Court was unpersuaded by JBS' argument that it did not uncover certain witness identities until the deposition stage. Id. at 15. In addition, in response to JBS' argument that it had difficulty identifying certain witnesses due to either their discontinued employment or having common first names (i.e., employing over 40 people with the name "Jorge"), the Court again noted that JBS was not diligent in addressing these issues earlier. Id. at 16.

In sum, the Court found that "[w]ith the exception of [a few] witnesses JBS designated as impeachment witnesses, JBS has largely failed to show that it acted diligently to disclose the additional witnesses. JBS may be correct that it could not have disclosed all of the additional witnesses by the February 2012 deadline, but it is equally clear that JBS could have, in an exercise of diligence, disclosed at least some of the additional 103 witnesses prior to February and March 2012." Id. at 19. Further, the Court opined that "[r]eopening discovery to allow [the] EEOC to depose the additional witnesses would further delay trial in a case where pretrial proceedings have already stretched for more than five years." Id. at 22. However, the Court concluded that denying JBS' motion to amend the scheduling order would be too harsh of a sanction. Accordingly, in what it deemed "the most equitable remedy," the Court found "that good cause exists to amend the scheduling order to grant JBS leave to designate 30 additional witnesses of its choosing...from the 103 witnesses listed in the additional witness disclosures." Id. at 25.

Implications For Employers

This ruling is instructive regarding the upside of proactively identifying any potential Rule 26 witnesses as early as possible. Waiting until the end of discovery to disclose witnesses creates the possibility that a court may preclude some of those individuals' testimonies, as was the case here. Finally, this case is yet another example of the EEOC's recent aggressiveness in litigating religious accommodation claims on a large-scale basis. Accordingly, employers should take seriously any and all employee requests for religious accommodations in order to avoid being found on the chopping block of an EEOC lawsuit.

Readers can also find this post on our EEOC Countdown blog here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Gerald L. Maatman Jr.
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.