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Tabura v. Kellogg USA

United States Court of Appeals, Tenth Circuit

January 17, 2018

RICHARD TABURA; GUADALUPE DIAZ, Plaintiffs - Appellants,

         Appeal from the United States District Court for the District of Utah (D.C. No. 1:14-CV-00014-TC-PMW)

          Gene C. Schaerr, Schaerr Duncan LLP, Washington, D. C. (Stuart Kyle Duncan and Michael T. Worley, Schaerr Duncan LLP, Washington, D. C.; Alan Jay Reinach, Church State Council, Westlake Village, California; Erik Strindberg and Matt Harrison, Strindberg & Scholnick LLP, Salt Lake City, Utah; and Todd R. McFarland, General Conference of Seventh Day Adventists, Silver Spring, Maryland, with him on the briefs), for Plaintiffs-Appellants.

          Timothy P. Monsma, Varnum LLP, Grand Rapids, Michigan (Lawrence J. Murphy, Varnum LLP, Grand Rapids, Michigan; Matthew M. Durham and Lauren A. Shurman, Stoel Rives LLP, Salt Lake City, Utah, with him on the briefs), for Defendant-Appellee.

          Gail S. Coleman (P. David Lopez, Jennifer S. Goldstein, and Margo Pave, with her on the brief), Equal Employment Opportunity Commission, Washington, District of Columbia, for Amicus Curiae.

          Before KELLY, EBEL, and BACHARACH, Circuit Judges.

          EBEL, Circuit Judge.

         Plaintiffs Richard Tabura and Guadalupe Diaz ("Plaintiffs") are Seventh Day Adventists who honor the Sabbath by refraining from work each week from Friday at sundown through sundown Saturday. That religious practice conflicted with their job schedules at a food production plant operated by Defendant Kellogg USA, Inc. ("Kellogg"). Eventually Kellogg terminated each Plaintiff for not working their Saturday shifts. Plaintiffs allege that in doing so, Kellogg violated Title VII of the Civil Rights Act by failing to accommodate their Sabbath observance. Both sides moved for summary judgment. The district court denied Plaintiffs' motion and granted Kellogg summary judgment, concluding as a matter of law both that Kellogg did reasonably accommodate Plaintiffs' religious practice and, alternatively, that Kellogg could not further accommodate their Sabbath observance without incurring undue hardship. We conclude, on the record before us, that the district court erred in granting Kellogg summary judgment; however, on that same record, the district court did not err in denying Plaintiffs summary judgment. Having jurisdiction under 28 U.S.C. § 1291, therefore, we REVERSE summary judgment for Kellogg and REMAND for further proceedings.

          I. BACKGROUND

         When Plaintiffs began working at the food production plant in Clearfield, Utah, they worked Monday through Thursday, ten hours a day. Plaintiffs continued with that schedule after Kellogg took over the plant in 2007. In March 2011, however, Kellogg changed its shift schedule, adopting "continuous crewing" by dividing the plant's workforce into four shifts, designated A, B, C, and D. Each shift worked twelve hours a day for two or three days, and then would have two or three days off. Tabura and Diaz worked on Shift A, a day shift that included approximately twenty-five to thirty employees who worked from 6 a.m. to 6 or 6:30 p.m. Tabura was among the twelve to fifteen employees on Shift A who worked in processing; Diaz and the others worked in packaging. Shift A was paired with Shift C, whose members worked at night, from 6 or 6:30 p.m. to 6 or 6:30 a.m. B and D Shifts were similarly paired, one working days and the other nights when Shifts A and C were off.

         Each of the four shifts had to work every other Saturday, or twenty-six Saturdays each year. Plaintiffs informed Kellogg that they could not work on Saturdays because it was their Sabbath. During the winter months, Plaintiffs had a further conflict finishing their shifts on Fridays when the sun set before their shift ended. Kellogg permitted Plaintiffs to avoid these scheduling conflicts by using paid vacation and sick/personal time and arranging to swap shifts with other employees. These options were available to any employee who wanted to take a day off for any reason.

         Although Plaintiffs could swap shifts with other workers, there were difficulties in doing so. Plaintiffs had to arrange their own swaps, the swapping employees had to be qualified to perform each other's jobs, and Kellogg had to approve the swap. Swapping was further complicated because, for safety reasons, Kellogg would not permit an employee to work more than thirteen straight hours, so Plaintiffs could not swap with anyone on C Shift, the night shift that followed Plaintiffs' Shift A. Instead, Plaintiffs had to find someone from either Shift B or D. But Plaintiffs were not at the plant at the same time as those shifts, and the D night shift members would have had to alter their sleep schedules in order to work the A day shift.

         Kellogg assessed disciplinary points against any employee who missed part or all of a scheduled work day without taking paid time off or trading shifts with another employee, or who failed to give adequate notice of an absence: four points for an absence for which the employee did not give Kellogg at least two hours' notice, two points for an absence that was not pre-approved if the employee called in at least two hours before his shift began, and one point for arriving late, leaving early, or taking too long a lunch break. Accumulating too many points would trigger progressive disciplinary measures: Generally ten points would result in a verbal warning, twelve points would result in a written warning, and fourteen points would result in a "final warning." Kellogg would fire an employee if he accumulated sixteen disciplinary points in any twelve-month period, once the progressive disciplinary steps had been exhausted.

         A. Richard Tabura

         Tabura's job on Shift A was to measure spices. He annually earned 160 hours of paid time off (vacation and sick/personal days), which would cover a little over thirteen of the twenty-six twelve-hour Saturday shifts he would have to work in a year. And if he timely informed Kellogg he was going to take off the other thirteen Saturdays without pay, Tabura would accumulate twenty-six disciplinary points in a twelve-month period, well over the sixteen points that would result in his termination. Tabura, therefore, had to find other qualified workers to swap shifts with him. Tabura was able to arrange only three shift swaps. But those employees either were not qualified to do Tabura's job, or vice versa, so he could not continue swapping with them. When Tabura amassed seventeen disciplinary points in a twelve-month period-many for not working on his Sabbath, but a few for other reasons-and after exhausting the progressive disciplinary steps, Kellogg fired Tabura in March 2012, a year after Kellogg went to "continuous crewing."

         B. Guadalupe Diaz

         Diaz worked on Shift A placing frozen vegetarian burgers in bags and conducting quality control. She earned 200 hours of paid time off each year (vacation and sick/personal days), which would almost cover seventeen of the twenty-six Saturdays she had to work each year.[1] And if she timely informed Kellogg that she was going to take the remaining nine Saturdays off without pay, Diaz would accumulate eighteen disciplinary points within a twelve-month period, just over the sixteen points for which Kellogg would fire her.

         When Kellogg first went to "continuous crewing, " Diaz arranged to swap her Saturday shifts for the Sunday shifts assigned to another employee who observed the Sabbath on Sunday. That worked well for several months until the other employee left Kellogg. After that, Diaz spoke to several other employees about swapping shifts, without luck. At one point, she was able to arrange for another employee to cover her shift for a single Saturday.

         Diaz refused to use her vacation and paid time off in order to avoid working on Saturdays. She chose, instead, to use her vacation time to visit her gravely ill sister, and to save her sick time for when she was ill. After Diaz accumulated more than sixteen disciplinary points for missing Saturday shifts, and after she exhausted the progressive discipline steps, Kellogg fired Diaz in May 2012.

         C. This litigation

         Plaintiffs sued Kellogg under Title VII, 42 U.S.C. §§ 2000e through 2000e-17, asserting three claims for relief: 1) disparate treatment based on religion; 2) failure to accommodate Plaintiffs' Sabbath observance; and 3) retaliation. The parties filed cross-motions for summary judgment. The district court denied Plaintiffs' motion and granted Kellogg summary judgment on each of these three claims. On appeal, Plaintiffs challenge the district court's rulings only as to their failure-to-accommodate claim. They argue that the district court erred both in granting Kellogg summary judgment on that claim and in denying Plaintiffs summary judgment.[2] As explained below, we conclude that neither side is entitled to summary judgment.


         This court reviews the district court's summary judgment decisions de novo. See Owings v. United of Omaha Life Ins. Co., 873 F.3d 1206, 1212 (10th Cir. 2017). A court "shall grant summary judgment if the movant shows that 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). "Where, as here, we are presented with cross-motions for summary judgment, we must view each motion separately, in the light most favorable to the non-moving party, and draw all reasonable inferences in that party's favor." Fox v. Transam Leasing, Inc., 839 F.3d 1209, 1213 (10th Cir. 2016) (internal quotation marks omitted).


         Title VII makes it "unlawful . . . for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . religion . . . ." 42 U.S.C. § 2000e-2(a)(1). "The term 'religion' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate . . . an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business." Id. § 2000e(j). Title VII, thus, requires that "an employer, short of 'undue hardship, ' make 'reasonable accommodations' to the religious needs of its employees." Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 66 (1977) ("TWA").[3]

         The questions presented here, then, are whether Kellogg reasonably accommodated Plaintiffs' religious practice of not working on their Sabbath and, if not, whether Kellogg could have done so without undue hardship to its business. A version of the McDonnellDouglas F[4] burden-shifting analysis aids us in addressing these questions. See Thomas v. Nat'l Ass'n of Letter Carriers, 225 F.3d 1149, 1155-56 & 1155 n.6 (10th Cir. 2000). At the first step of that analysis, it is the employee's burden to establish a prima facie claim by showing that 1) the employee has a bona fide religious belief that conflicts with a job requirement, 2) the employee informed the employer of this conflict; and 3) the ...

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