United States District Court, D. Colorado
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.
A. BRIMMER UNITED STATES DISTRICT JUDGE
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.
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.
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.
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. 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
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. In response, JBS produced
documents that included records showing scheduled breaks,
did not provide or reference the Down Time Reports or
Clipboards, which show unplanned downtime and slowdowns.
Docket No. 518 at 5.
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.
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.
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.
Failure to Supplement Production
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.”
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.” 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 ...