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Equal Employment Opportunity Commission v. JBS USA, LLC

United States District Court, D. Colorado

August 4, 2017

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, and IRAQ ABADE,, Plaintiffs-Intervenors, and MARYAN ABDULLE,, Plaintiffs-Intervenors,
JBS USA, LLC, d/b/a JBS Swift & Company, Defendant.



         This matter is before the Court on plaintiff's Motion for Sanctions for the Loss or Destruction of Documents Driectly [sic] Relevant to Swift's Allegations of Undue Hardship [Docket No. 518] and Defendant's Motion for Leave to File a Supplement or Sur-reply to the EEOC's Motion for Sanctions for the Loss and Destruction of Documents Directly Relevant to JBS's Allegations of Undue Burden [Docket No. 543].

         I. BACKGROUND

         In this employment discrimination case, plaintiff Equal Opportunity Employment Commission (“EEOC”) claims that defendant JBS USA, LLC (“JBS”) failed to reasonably accommodate its Muslim employees' requests for prayer breaks. See Docket No. 490 at 2-3. JBS argues that accommodating such requests would have caused an undue burden on JBS. Id. at 5.

         JBS operates a beef processing plant in Greeley, Colorado. EEOC v. JBS USA, LLC, 115 F.Supp.3d 1203, 1208 (D. Colo. 2015). During the first week of Ramadan 2008, a dispute between JBS and its Muslim employees over their opportunities to pray at work came to a head. Id. at 1212-13. As a result, hundreds of Muslim employees walked off the job. Id. On September 10, 2008, JBS fired ninety-six Muslim employees that JBS claims refused to return to work. Id. at 1208. These employees worked on a production line of the plant where cattle carcasses are pulled by a variable-speed chain while employees cut off the portions of the carcass that they are responsible for processing. Id. at 1209-10. After the mass termination, numerous former employees filed discrimination charges with the EEOC. Id. In response, on February 3, 2009, JBS provided the EEOC with a position statement, which claimed that granting prayer breaks to employees would be an undue burden, in part, due to losses resulting from “each minute of production down-time.” Docket No. 518-7 at 5. JBS has continued to press its undue burden affirmative defense throughout the case. For example, in its summary judgment motion, JBS argued that production line slowdowns and downtime would have been caused by allowing prayer breaks to Muslim employees. Docket No. 330 at 39-40 (“[T]he result [of scheduling breaks to coincide with prayer times would be] 12 minutes per day of lost production, or additional ‘downtime.'”); JBS USA, LLC, 115 F.Supp.3d at 1235-37. JBS intends to present evidence and expert testimony at trial about the impact of unscheduled breaks, Docket No. 490 at 30, ¶ 9, and how granting prayer breaks would have resulted in more than de minimis costs for JBS. Docket No. 518-9 at 1-6.

         The EEOC seeks sanctions against JBS for JBS's failure to preserve and produce two types of records tracking delays on JBS's production line. The first type of record is a “Down Time Report, ” which is a handwritten note “for each shift of each day” that identifies the “exact time the [production line] chain stopped, the duration of time (in seconds), and the reason for the stop.” Docket No. 518 at 2.[1] The information from the Down Time Reports is entered into a computer and summarized on the second type of record, a “Clipboard” document, which also shows “slowdown minutes” that are informally reported through handwritten notes. Id. at 3. A Clipboard provides the “total number of minutes of downtime and slowdown for each shift every day, sometimes with explanations for the interruptions.” Id.

         The EEOC sought discovery from JBS about its undue burden affirmative defense. Relevant here, on November 21, 2012, the EEOC served a production request, referred to herein as “Request 18, ” that stated:

18. Produce all reports or data showing all dates and times the Fabrication lines on any and all shifts were stopped, as well as the speed the Fabrication lines ran, since January 1, 2008. This was testified by Bill Danley as data maintained on the down-time computer.

Docket No. 518-14 at 10, ¶ 18.[2] In response, JBS produced documents that included records showing scheduled breaks, [3] but did not provide or reference the Down Time Reports or Clipboards, which show unplanned downtime and slowdowns. Docket No. 518 at 5.

         Discovery for Phase I of this litigation closed on August 15, 2013. But in May, 2016, the assigned magistrate judge reopened discovery for the limited purpose of allowing the EEOC to depose thirty additional witnesses disclosed by JBS. Docket No. 458. Following some of these depositions, the EEOC sent a letter to JBS stating that “we have heard a number of supervisors and managers refer to records in their depositions that are responsive to, in particular, our requests for . . . reports or data showing stops or speeds of the fabrication lines, ” which the EEOC said had never been produced. Docket No. 518-18 at 3. The EEOC requested to meet and confer and noted that it had requested that JBS supplement its production. Id.

         JBS initially produced an example Clipboard in August 2016 and then produced more such records in October 2016. Docket No. 518 at 6. The produced records included “about half a dozen Clipboards from 2012, approximately five to six months of Clipboards from 2014, 2015, and 2016.” Id. JBS represented that “no other records existed, including all those from 2008 to 2011.” Id.

         On October 27, 2016, JBS for the first time produced Down Time Reports, producing one week of October 2016 reports for the A shift. Docket No. 518 at 7. In November 2016, JBS produced the remainder of the Down Time Reports for 2016, Docket No. 518-30 at 1-2, ¶¶ 2-3, and indicated those were “all of the available handwritten downtime reports. All others have been destroyed.” Docket No. 518-3 at 1. JBS later testified via Rule 30(b)(6) deposition that the Down Time Reports were shipped to storage each year, but may have been destroyed. Docket No. 518 at 7-8. On June 30, 2017, JBS produced thirty-four Down Time Reports and Clipboards, including thirteen records for September 2-9, 2008. Docket No. 518 at 8; Docket No. 519-6. JBS claims that it located these records by searching JBS's Greeley, Colorado warehouse for “a day, ” Docket No. 529 at 3, and states that it “reasonably believes that the missing Clipboards and Down Time Reports are in the boxes” stored there. Id. at 8.


         A. Failure to Supplement Production

         Parties are required to supplement their responses to discovery requests “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed.R.Civ.P. 26(e)(1)(A). Rule 37 provides for sanctions for failure to make required disclosures or supplement discovery responses, including “prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence.” Fed.R.Civ.P. 37(b)(2)(A)(ii).

         JBS does not deny the obvious, which is that the Down Time Reports are responsive to Request 18. See Docket No. 529 at 5. JBS does, however, deny that the Clipboards are responsive to Request 18, but admits that they show “the average line speed.” Id., n.1. The Court finds that the Clipboards are responsive to Request 18 in that they show “the speed the Fabrication lines ran.”[4] Other than arguing that the Clipboards were not responsive, JBS does not specifically argue against it having a duty to supplement its production with the Down Time Reports and Clipboards pursuant to Fed.R.Civ.P. 26(e). Docket No. 529 at 12-13. Because JBS failed to supplement its production with the responsive records in a timely manner and because JBS has not shown that such failure ...

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