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Equal Employment Opportunity Commission v. JBS USA, LLC

United States District Court, D. Colorado

September 24, 2018

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

          PHASE I FINDINGS OF FACT AND CONCLUSIONS AT LAW

          PHILIP A. BRIMMER, UNITED STATES DISTRICT JUDGE

         The Court presided over a 16-day trial to court in Phase I of this discrimination case, involving pattern or practice claims brought by the United States Equal Employment Opportunity Commission (the “EEOC”) pursuant to Title VII of the Civil Rights Act of 1964. Defendant, JBS USA, LLC, d/b/a JBS Swift & Company (“JBS”), owns a beef processing facility in Greeley, Colorado (the “Greeley plant” or the “Greeley facility”). From 2007 to 2011, the Greeley plant employed several hundred Muslim employees who sought accommodation from JBS because of their need to pray during working hours.

         On August 8, 2011, the Court issued an order bifurcating this case. Docket No. 116 (the “bifurcation order”). Pursuant to the bifurcation order, the Phase I trial addressed three claims:

1. That JBS engaged in a pattern or practice of unlawfully denying Muslim employees reasonable religious accommodations to pray and break their Ramadan fast from December 2007 through July 2011.
2. That JBS engaged in a pattern or practice of disciplining employees on the basis of their race (black), national origin (Somali), and religion (Muslim) during Ramadan 2008 (September 1-30, 2008).
3. That JBS engaged in a pattern or practice of retaliating against a group of black, Muslim, Somali employees for engaging in protected action in opposition to discrimination during Ramadan 2008.

         Docket No. 116; see also Docket No. 493 at 1-2 (memorializing the parties' agreement that Phase I would cover the EEOC's “pattern-or-practice failure to accommodate claims through July 2011.”).

         I. FINDINGS OF FACT

         A. Stipulated Facts

         The parties have stipulated to the following facts:

1. At all relevant times, JBS USA, LLC has continuously been doing business in the state of Colorado and has continuously had at least 15 employees.
2. At all relevant times, Defendant has been an employer engaged in an industry affecting commerce within the meaning of §§ 701 (b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).
3. The United Food and Commercial Workers International Union, Local No. 7 is the exclusive bargaining agent for all production employees employed by JBS at its Greeley, Colorado beef plant as specifically defined in the Collective Bargaining Agreement (the “CBA”).

         Docket No. 490 at 6-7.

         B. Findings of Fact From the Trial Evidence

         The Court makes the following findings of fact by a preponderance of the evidence.

         1. JBS and the Greeley Beef Plant

         JBS is the largest producer of beef in the world. It has come to that position through acquisitions of numerous companies and facilities in the agricultural sector, including acquisition of the Greeley plant.

         Cattle arrive at the Greeley plant by truck and are unloaded into cattle pens, or yards, where they are weighed and inspected by a United States Department of Agriculture (“USDA”) veterinarian. Once approved by the USDA, the cattle are led up a chute into the slaughter area where they are stunned and killed. Each carcass is then hung from a chain that moves through the slaughter floor, where employees perform various functions to inspect the carcass and where certain large cuts are made. The carcass subsequently goes to a “hot box” cooler where it is held for 48 hours.

         From the hot box cooler, the carcass is moved into a grading and sales cooler. There the carcass is assigned a grade, such as “Prime, ” “Certified Angus Beef, ” “Angus, ” “Choice, ” or “Select.” Only one grade of cattle at a time may be run through the fabrication area. Carcasses can be kept in this cooler for up to five days before they must be processed. The carcasses are carried out of the cooler attached to a chain. In fact, the line on which a carcass moves during processing is sometimes referred to as the “chain.”

         Once carcasses leave the grading and sales cooler, they go to the fabrication area, where the carcasses are cut into smaller pieces and the smaller pieces are processed. The fabrication area is organized into multiple lines, each of which is responsible for processing a different part of the carcass. The initial section of the fabrication area is called the “break line.” Large sections of the carcasses are cut off and placed on conveyor belts. Each conveyor belt has one or more lines of workers who perform specific tasks on different portions of the carcass.[1] For example, there are boning lines, a rib line, an arm line, a value added line, and a loin line. Each product must be cut to meet particular specifications. For example, a particular customer may require a certain amount of fat on the edge of a particular piece of meat, while another customer may require less fat.

         After passing through the fabrication area, the beef moves into the packaging area. The cuts of meat are placed in plastic bags and sealed. The bags are placed in boxes that are moved to the shipping department to be shipped out to customers.

         The chain moves beef through the facility at a certain speed (the “chain speed”). Although the chain speed can vary, slaughter and fabrication employees are required to work at a pace that corresponds with the chain speed needed to process the number of carcasses anticipated for that shift. A problem on one area of the line can affect the operations of the entire plant. In 2008, the goal at the Greeley plant was to slaughter and process about 5, 600 head of cattle daily, which produced about 37, 000 boxes of meat for shipping each day. The USDA sets the maximum chain speed in the slaughter area of the plant. Because the plant operates on an assembly line, JBS is required to correlate the chain speeds in the slaughter and fabrication areas so that the meat is packaged and shipped before spoiling. Thus, when staffing falls below the level for the current chain speed, the plant must reduce the chain speed.

         Multiple “grade changes” occur per shift because, as noted earlier, only one grade of cattle may be run through the fabrication area at a time. The number of grade changes per shift varies from three to twenty. A one to five minute gap in the product on the chain occurs during every grade change.

         The management of lines depends on the number of employees on a particular line. Large lines would be overseen by a supervisor and multiple team leads. Smaller lines, some with as few as four employees, would have no supervisor and only one team lead. Typically there is one supervisor and one or two team leads per line. For example, the value added line has only fifteen to twenty employees, whereas the break line has one supervisor and two team leads supervising approximately eighty-five employees. Trainers would also be present on certain lines, with their locations varying depending on where employees were being trained. JBS used industrial engineering studies to determine the amount of time taken for tasks on the line and, thereby, the crewing required for a particular chain speed. Under the CBA, the trainers, team leads, and supervisors may fill in for employees who take unscheduled breaks. Ex. A-03 at 5, Art. 4, § 2. The CBA, however, prohibited supervisors from performing bargaining unit work - i.e., production work performed by hourly employees - “except in such situations as instructing an employee, temporarily filling in for absenteeism or in case of emergency.” Id. This provision prohibited supervisors from routinely filling in for hourly employees.

         Processing the meat on the line is physically demanding, as many production employees stand for long periods of time to trim and debone products that may weigh forty pounds or more. The jobs considered physically demanding or that require more skill often were paid a higher hourly rate. Ex. A-03 at 19, App'x A. The CBA required JBS to pay employees overtime for all hours worked in excess of eight hours in a day and all work over forty hours in a week. Ex. A-03 at 6, Art. 6, § 3.

         “Crewing” refers to the number of employees needed to do a particular job at a particular chain speed. The number of employees assigned to each line varies. Due to absences and vacations, JBS often assigned an excess number of employees relative to the number of employees necessary for the line to be fully staffed. This excess is known as “over-crewing.” The Greeley plant typically over-crewed at 115-117%. Nevertheless, the fabrication floor was still almost never crewed at capacity. Thus, overcrewing did not lead to excess employees available to fill in for absent employees.

         Production employees, i.e., those working in the slaughter and fabrication areas, wear a variety of safety equipment depending on their position, which can include hard hats, hair nets, safety glasses, gloves, boots, metal-mesh gloves, arm-guards, and aprons. Some of this equipment is specific to particular dangers, for example, employees who work with knives are required to wear metal mesh covering certain parts of their body. Employees must remove at least some of this safety equipment before leaving the production floor and put it back on when returning to the line. Employees varied in their estimates of the time it took to remove safety equipment when leaving the line for a break and to replace the equipment before returning to the line. Estimates ranged from thirty seconds to several minutes.

         The production side of the plant is kept cool, approximately forty degrees Fahrenheit, to prevent spoilage. Employees wear hats and coats in the production area even during the summer. Surfaces and tools in the fabrication area are periodically sanitized, and there are facilities for employees to sanitize themselves and their boots when entering the production area. Employees are not allowed to eat in the production area and hallways or in the locker rooms and bathrooms.

         The quality assurance line is located on the floor below the main production line. Quality assurance's central responsibility is inspecting the meat products to make sure that they conform to specifications. Quality assurance is also responsible for maintaining certain food safety requirements, such as enforcing bans on employees eating outside designated areas and looking for standing water that should be cleaned up. Quality assurance frequently inspected the restrooms to look for food, standing water, or cigarette smoking.

         Quality assurance employees mark items and areas that need remediation or attention with red tags. These red tags stick to surfaces and also have a removable portion where one can write down who placed the tag and why. The removable portion would generally be returned to the quality assurance office. Employees were trained that a red tag marked closed areas into which employees were not allowed to go (other than the quality assurance worker who placed the tag and his or her supervisor). Similarly, a red tag placed on a piece of equipment would indicate to employees that they were not to use that equipment.

         All employees in the plant wear hard hats with their names inscribed on the front. The position held by employees determines the color of the hard hat. The plant superintendents and managers wear green hats. Supervisors wear blue hats and team leads wear red hats. Trainers wear orange hats. New employees wear gold hats and then, after being qualified for a position, graduate to wearing the white hats worn by production employees. Everyone from quality assurance, regardless of title, wears a yellow hat. Union employees wear purple hats.[2] The employees use hat colors as a shorthand way of referring to a person's position. For example, a quality assurance employee whose name is unknown is referred to as “a yellow hat.”

         2. Staffing

         Employees are placed on one of three shifts: the A shift, which operates from 6:00 a.m. to around 2:30 p.m., the B shift, which operates from approximately 3:30 p.m. to 11:30 p.m., and the C shift, which starts after the B shift and consists of cleaning and sanitation. The processing of carcasses shuts down during the C shift, but the shipping department continues to operate. During the relevant period, the Greeley plant employed approximately 3, 400 people. The number of employees working on the A and B production shifts varied, but, during the first week of September 2008, roughly 1, 500 employees worked during each production shift, with approximately 900 employees assigned to the fabrication department. The plant's workforce was diverse, with employees from many countries speaking different languages and following different cultural beliefs and practices. The majority of the Greeley plant's employees and the majority of workers on both shifts were Hispanic. Many of the plant's workers did not speak English, instead speaking only Spanish, Somali, or another language.

         The Greeley plant did not employ a large number of Muslim employees before 2007. This changed when JBS acquired the Greeley plant through its purchase of Swift & Company in 2007. At that time, the plant had only one production shift. In August or September of 2007, JBS decided to add a second production shift. Doing so required hiring and training a large number of employees to staff the new shift. Many of the newly hired employees were from Greeley's Somali Muslim refugee population. By Ramadan 2008, approximately 433 Muslim employees worked on the B shift.[3] For example, in September 2008, about twenty-five out of fifty-four employees on the chuck line were Muslim; twenty-nine out of sixty-one employees in forequarter packaging were Muslim; and twenty-five out of fifty-five employees in hindquarter packaging were Muslim. Ex. A-77 at 2.[4]

         At trial, the Court heard from twenty-eight individuals for whom the EEOC seeks relief in Phase I of this case (the “Aggrieved Individuals”). The Aggrieved Individuals are all former or current employees of JBS. Although a few of the Aggrieved Individuals were hired by JBS at the end of 2007, most of them were hired in 2008. The Aggrieved Individuals are all from Somalia, their race is black, and they follow Sunni Islam.

         3. Union

         The Greeley plant is a so-called “closed shop, ” where the United Food and Commercial Workers International Union, Local No. 7 (the “union”) is the exclusive bargaining agent for all production employees.[5] Employees are not enrolled in the union upon hire, but instead must work for thirty days before becoming members of the union. Ex. A-4 at 6, Art. 7, § 2.

         The Union also represents the employees at a Butterball turkey processing facility in Colorado and the union's management splits time between the two facilities. The president of the union during Ramadan 2008 was Ernest L. Duran. The union itself employed a director, two business managers, and union stewards. Fernando Rodriquez was the director of the union from 1996 to 2013. Juan Carlos Gonzalez and another individual were union representatives. Union employees walk the plant floor during shifts and are available to write up grievances or interact with management on behalf of employees. The union employees are required to write up grievances at the request of union members, regardless of their own judgment about whether a violation has occurred. The three members of the union's day-to-day management during Ramadan 2008 were Latinos who spoke English and Spanish.

         The CBA limited union employees' ability to strike. Article 8 of the CBA prohibited strikes and work stoppages during the term of the agreement and granted JBS the sole right to determine the appropriate level of discipline for employees who participated in strikes and work stoppages. Ex. A-03 at 7, Art. 8. The same Article obliged the union to notify and order employees who participated in strikes and work stoppages to return to work. Ex. A-3 at p. 7; Tr. 2989:5-11 (Schult). Specifically, the CBA states that “the Union shall immediately declare publicly that such action is unauthorized and shall promptly order its members to resume their normal duties.” Ex. A-03 at 7, Art. 8, § 1.

         The CBA also governed certain staffing issues. Article 10 of the CBA required JBS to fill most unionized positions through a bid process, in which the most senior employee who bid on the open position would be awarded the job, provided the person was capable of performing the work. Ex. A-03 at 8-9. Article 10, Section 13 of the CBA provided that JBS could assign employees to other jobs on a temporary basis. Ex. A-03 at 9. When employees were temporarily assigned to a job having a lower pay rate, the employee had to receive his or her regular rate of pay, unless the temporary assignment was a light-duty assignment due to an off-the-job injury or illness. Id. An employee temporarily assigned to a job with a higher pay rate had to receive the higher rate if he or she was qualified for the position. Id.

         The CBA allowed employees to file union grievances if they experienced prohibited discrimination or harassment. Article 13 of the CBA prohibited both the union and JBS from discriminating against any employee or harassing any employee because of that person's race, color, religion, national origin, age, marital status, veteran's status, or disability. Ex. A-03 at 11-12. Article 13, Section 6 of the CBA contained a provision regarding reasonable religious accommodations. The provision required JBS to provide reasonable religious accommodations when requested by employees, in accordance with Title VII. Employees seeking an accommodation were to “cooperate with the Company and the Union in seeking to identify reasonable alternatives.” Ex. A-03 at p. 12.

         In 2008, the relationship between JBS management and the union was not cooperative, and the union was filing a large number of grievances.

         4. Muslim Employees' Religious Beliefs

         Muslims customarily pray five times per day. Each prayer has a name corresponding to the time of day it is traditionally said. The Fajr prayer takes place in the morning, the Dhuhr prayer takes place near noon, the Asr prayer takes place in the afternoon, the Maghrib prayer takes place at sunset, and the Isha prayer takes place in the evening. The precise timing of these prayers is determined by the motions of the sun and moon. Accordingly, they vary over time such that, during Ramadan 2008, the prayer time for the Maghrib prayer moved from 7:30 p.m. on September 1, 2008 to 6:42 p.m. on September 30, 2008 as the sun set earlier. Ex. 244 at 4. The Asr prayer moved from 4:39 p.m. to 4:07 p.m. over the same period. Id. Schedules of the prayer times are available at mosques, online, and through various computer applications. The prayer times provided in such schedules are the earliest that the prayers can be said.

         The Muslim employees' beliefs varied as to the amount of time after a scheduled prayer time they had to complete that prayer. The period of time available to say a prayer was referred to during the trial as a “prayer window.” Of the Muslim employees who testified at trial and expressed an opinion on the subject, twelve believed that the Maghrib prayer must be said when due, eleven said it must be recited between two and fifteen minutes after being due, and two believed that it could be said over fifteen minutes after being due.[6]

         Generally, the Somali Muslim employees believe that willfully neglecting or missing prayers is considered a sin against God, for which God determines the consequences, but that, absent willful neglect, divine mercy is possible. As Imam Amonette put it, the key is making an effort to pray on time, as opposed to shirking one's prayer duties and delaying prayers without a reason. Employees who missed their breaks would typically make up prayers that they missed at a later time, but they felt that doing so was religiously improper, and it would be up to God's mercy to accept such prayers. However, some of JBS's Somali Muslim employees believe it is as great a sin to say a prayer late as it is to skip a prayer altogether. Notwithstanding these differences, the Muslim employees believed that a 7:30 p.m. meal break would have been acceptable for all of Ramadan 2008.

         The Muslim employees believed that, before saying a prayer, it was necessary to be “clean.” The Muslim employees cleansed themselves by performing a ritual called an ablution. Ablution is unnecessary prior to a prayer if a Muslim has not gone to the restroom, passed gas, or touched someone of the opposite sex since previously performing an ablution. JBS had no policy against praying in the plant prior to work or during a scheduled break, and Muslim employees often said their prayers in the plant's locker rooms and performed ablution in the adjoining restrooms.

         Muslim employees differ in the amount of time it takes to perform each prayer, ranging from four minutes to, in some cases, more than ten minutes. Ablution may take an employee a few additional minutes if done in conjunction with prayer; however, it can be done at any time prior to prayer, including during a scheduled break or prior to work. However, most Muslims who worked at JBS agree that, even with ablution, it takes no more than fifteen minutes from the time they leave their lines to the time they return to say the Maghrib. Hicham Timejardine, currently the B Shift Superintendent for the Greeley plant, testified that most Muslim employees leave the line, pray, and return to the line in ten minutes. Several Muslim employees testified that they would hurry through their prayers while working in order to finish and return to work quickly.

         Fasting is another requirement of the Islamic faith. The required fast takes place during the holy month of Ramadan, the ninth month of the Islamic lunar calendar. The fast lasts from dawn until sunset, during which time Muslims must refrain from eating or drinking. During Ramadan, practicing Muslim employees were required by their beliefs to fast by not eating or drinking from sunrise to sunset. At sunset, coincident with the Maghrib prayer, Muslims must break their fast with food, water, or both. Because Ramadan is the holy month in Islam, many Muslims, including the Aggrieved Individuals, generally believe the obligations to fast and pray during Ramadan have greater or heightened spiritual significance.

         5. Breaks

         Pursuant to the CBA in effect in during the relevant period, production employees were entitled to two regular breaks during each shift, which were required to occur within certain windows of time. Ex. A-03 at 16, Art. 25 § 2.[7] The CBA called for, first, a fifteen-minute rest period (the “rest break”) approximately halfway through the first part of the shift, which could occur no earlier than one and one-half hours from the start of the shift and no later than three hours from the start of the shift. Id. Second, the CBA provided for a thirty-minute meal break approximately halfway through the shift. Id. Employees were not required to work more than three and one-half hours without a break unless three and three-quarters hours of work would complete the workday. Id., § 7. The parties refer to these as “scheduled breaks, ” although, as discussed below, the precise timing of the breaks varied somewhat. The limitations in the CBA aside, management had discretion to determine the timing of the scheduled breaks. Id., § 1.

         The general procedure for taking a scheduled break was for employees in the slaughter and pre-fabrication[8] areas to stop placing carcasses on the chain to create either a fifteen-minute gap for a rest break or a thirty-minute gap for a meal break. Employees would begin their break when the gap in the chain reached them and they finished working on their last piece of meat. This resulted in employees leaving the line for break in a staggered fashion - slaughter and prefab employees broke before fabrication employees; in the fabrication area, employees nearer the beginning of the chain began their breaks first, employees nearer the end of the chain began their breaks last. At the end of the break, employees would also return from their break in the same staggered fashion, with the employees who left first returning to work first. For example, if a break was called at 8:00 p.m., the employees at the tail end of the production line would not start their thirty-minute meal break until 8:20 or 8:25 p.m., beginning the meal break just minutes before the first employees to go on break began returning to their lines. Similarly, employees at the end of the production line would not return to the line from the meal break until as late as 8:50 p.m. or 8:55 p.m. JBS staggered rest and meal breaks to avoid leaving beef unattended on the line for extended periods of time, which increases the risk of food safety issues. Additionally, staggered breaks decreased crowding in the break areas and increased the amount of time that the workers were producing because they reduced the amount of time that workers were standing at the line without a piece of meat to process. During scheduled breaks, tables are cleaned and sanitized.

         The timing of the rest and meal breaks varied day to day, but were relatively consistent. In general, the first rest break occurred around 6:00 p.m. and the meal break occurred around 9:15 p.m., but the rest break in fact varied between 5:00 p.m. and 6:30 p.m., and the meal break varied between 8:00 p.m. and 9:30 p.m. and occasionally occurred before 8:00 p.m. Although the CBA states that meal breaks occur “approximately half way through the employee's scheduled work day, ” the meal break on the B shift had been taken much later than this in practice. Ex. A-03 at 16, Art. 25, § 3. JBS presented testimony from employees who stated that they preferred a later meal break, i.e., near 9:15 p.m., because it shortened the final part of the shift and, as a result, they would be less tired and hungry toward the end of the workday. The data showed that the majority of rest breaks on B shift were taken between 6:15 p.m. and 6:29 p.m. All but approximately 1% of rest breaks were taken before 6:29 p.m. The majority of meal breaks occurred between 8:30 p.m. and 9:14 p.m., with approximately 30% of meal breaks occurring between 9:00 p.m. and 9:14 p.m. About 9% of meal breaks were taken after 9:14 p.m. The timing of the scheduled breaks varied in part because rest and meal breaks were, to the extent possible, coordinated with a grade change or taken when a mechanical failure occurred. But, according to plant records, the timing of the scheduled breaks did not coincide with a grade change on approximately 43.3% of occasions between October of 2012 and December of 2016.

         a. Unscheduled Breaks

         Since taking over the Greeley plant, JBS has permitted employees to ask their supervisors for permission to leave the line while the chain is running, commonly referred to as an “unscheduled break, ” a “restroom break, ” or a “bathroom break.” How unscheduled breaks are handled changed over time. Initially, there was no official policy for such breaks. The policy that prevailed in the Greeley plant until at least Ramadan 2009 was that unscheduled breaks were only available for use of the restroom. Outside of scheduled breaks, employees were allowed to leave the line to get a drink of water or for restroom emergencies. Before leaving the line, employees were expected to notify their lead, trainer, or supervisor so that someone could fill in for the employees. Employees did not generally ask permission before leaving the line to get a drink of water, which could be done quickly without removing safety equipment. There was no set limit on the duration of an unscheduled break and no set limit on the number of unscheduled breaks an employee might take per shift, but the use of such breaks was expected to be reasonable.

         Supervisors handled unscheduled break requests with a great deal of discretion. Different supervisors handled requests for breaks differently. Permission to take an unscheduled break also varied day to day based on staffing. Leads, trainers, or supervisors would occasionally take over the duties of a person taking an unscheduled break. Some JBS production employees were cross-trained to do two or more jobs so that if an employee was missing from a particular job, another employee could step in and perform the job for that employee. These strategies simply shifted an employee from one task to another task because the employee had to stop what he or she was otherwise doing to fill in for the employee on break. Supervisors could radio other supervisors to find available employees to fill in during unscheduled breaks, but this solution did not reliably identify available employees trained in the particular job of the employee requesting a break. In some areas, it was not necessary to replace the employee who needed an unscheduled break because other employees could set aside the work of the missing employee by putting that employee's pieces of meat into a cardboard “combo” box for the employee to process when he or she returned.

         Until at least Ramadan 2009, a specific request for a prayer break was not allowed by well-understood, but unwritten, plant policy enforced by plant management. Supervisors were told that they were not allowed to grant employees breaks to pray. Supervisors worried that they would be disciplined for allowing employees who asked to pray to leave the line.[9] Nonetheless, some supervisors would grant employees permission to pray when asked, but such supervisors were unusual.

         Because Muslim employees frequently sought to pray at times other than the scheduled breaks and anticipated that prayer requests would be denied, many Muslim employees requested a restroom or bathroom break when they needed to pray. Indeed, some supervisors actually advised Muslim employees to request restroom breaks for their prayer needs. Several former employees testified that this “don't ask/don't tell” practice was a double-edged sword. Certain supervisors - having been asked for a prayer break in the past or being aware that Muslim employees used restroom breaks to pray - might deny restroom breaks to Muslim employees both when they sought to pray and when they needed to use the restroom. Muslim employees who worked for certain supervisors were sometimes denied all unscheduled breaks.

         JBS enforced its no-prayer break policy by disciplining Muslim employees who were caught praying while taking unauthorized breaks even when such employees had received permission to take a break to use the restroom. Mohamed I. Mohamed (“M. I. Mohamed”), a trainer, testified that Mr. Palacios and “most of the other supervisors” would “very often” follow Muslim employees to the restroom to see what they were doing and then write them up if they were found praying. Tr. 2120:4-15 (M.I. Mohamed). This testimony was corroborated by Mr. Rodriquez. For example, on April 9, 2008, Mr. Palacios instructed Bianca Rodriguez nee Mejia[10], the Quality Assurance supervisor, to enter the women's restroom to take away the badge of a Muslim employee who had left the line and was praying. Ex. 74. Mr. M. I. Mohamed testified that he interpreted for “a lot” of Somali employees who were disciplined for using unscheduled breaks to pray. Tr. 1900:12-1901:2, 2119:23-2120:3 (M.I. Mohamed). Enforcement was, however, sporadic. Supervisors would not consistently check the locker rooms for employees praying or discipline employees found praying. In keeping the don't ask/don't tell nature of Muslim employees requesting restroom breaks to pray, most supervisors would look the other way regarding the use of breaks for such purpose.

         Notwithstanding the use of unscheduled breaks to pray, at least during the relevant time period (December 2007 - July 2011), JBS's Somali Muslim employees took approximately the same amount of time on unscheduled breaks as non-Muslim employees.

         b. Mass. Breaks

         The JBS plant also sometimes took “mass breaks” due to mechanical problems or other issues. During a mass break, the chain stops and all employees leave the production line at the same time. Such breaks are undesirable for JBS because they cause beef to be left on the line and do not allow for the cleaning of work areas. Moreover, per USDA regulations, beef that remains on the production floor for more than forty-five minutes must be classified as “distressed, ” which reduces the value of the meat. Although there was some discussion of adding a mass break during Ramadan 2008, this accommodation was never seriously considered by JBS and is not relevant to the issues in the Phase I trial.

         6. Hiring, Orientation, and Training

         JBS trained new employees in groups, with orientations starting on Mondays. In 2008, JBS employed two employees responsible for the classroom portion of the training - one Latino trainer who was responsible for teaching in Spanish and Mr. M. I. Mohamed, a black, Somali, Sunni Muslim, who was responsible for teaching in Somali. The two trainers shared orientation duties for English-speaking employees. These trainers were members of management and reported to HR.

         JBS hired Mr. M. I. Mohamed in August 2007. Mr. M. I. Mohamed began his orientation of new employees by reading through the employee handbook, translating it into Somali. The orientation also included anti-discrimination training, focused primarily on sexual harassment. No training about religious accommodations was provided. Mr. M. I. Mohamed would allow employees to take prayer breaks during his training if he had not fallen behind schedule, but he would decline requests for time to pray if he was behind schedule. When employees asked Mr. M. I. Mohamed about whether they would be allowed to pray while working on the line, he would tell them that they could pray on their scheduled breaks and to talk to their supervisors about taking unscheduled breaks after they began working on the line.

         Initially, Mr. M. I. Mohamed gave orientation about the union, but after a couple of months the union took over this portion of the orientation. The union steward explained the role of the union and the grievance process. While Abdisamed Ahmed was a union steward, he gave the union portion of the training in Somali, but, when he was unavailable, Mr. M. I. Mohamed translated for another union steward.

         At least until it issued the revised unscheduled break policy in July 2011, JBS did not provide any training to its workforce about the culture of the Somali Muslim population or their religious beliefs and practices. At that time, JBS informed supervisors about Muslim beliefs regarding prayer. There was no such training for other employees.

         7. Procedures for Disciplinary Suspension and Discharge

         JBS's employee handbook in effect in 2008 prescribed the following four-step progressive discipline policy:

Corrective Counseling [Verbal Warning]. For minor violations, or first offenses, the employee would typically receive a written/verbal warning, which includes an explanation of the violation committed.
Written Warning. Typically after receiving a verbal warning, if the employee has not taken measures to correct the conduct, the employee may receive a written warning which includes an explanation of the violation committed.
Suspension or Final Warning. Typically after having received a first written warning, a repeat offense by the employee will result in a final written warning which will state the nature of the infraction and may be accompanied by a suspension.
Discharge. Discharge may result from a first time offense if it is deemed serious or blatant by management, or it may occur after an employee accrues previous discipline.

Ex. 242, at 10-11.

         Accordingly, JBS's usual procedure when imposing a disciplinary suspension was to meet with the employee, explain the reasons for the discipline, provide the employee with a copy of the disciplinary record, ask the employee to sign the suspension, and give the employee instructions about how to find out when to return to work. When JBS suspended an employee “pending investigation, ” it would generally conduct an investigation regarding the allegations of wrongdoing. Similarly, before an employee was discharged, JBS usually talked to the employee in order to find out the employee's side of the story.

         JBS's employee handbook also contained a policy on absenteeism. Under that policy:

failure to report an intended absence (no call) or the failure to properly notify the Company at least 30 minutes prior to an employee's scheduled starting time will count as a “no call/no report” for attendance purposes. Three [3] active no call/no reports in a rolling twelve (12) month period will be cause for termination.

Ex. 242 at 10. JBS regularly followed this policy in and around 2008.

         8. Racial Tensions

         Racial tensions existed at the Greeley plant before Ramadan 2008.Some JBS supervisors referred to JBS's Somali Muslim employees using various derogatory terms in English and in Spanish. Mr. Rodriquez recalls instances where some JBS supervisors referred to the Somali employees as the “fucking Somalis.” Muslim employees complained about name calling by co-workers, but JBS managers and supervisors did little to stop or remedy co-workers' conduct. For example, Abdikarim Ali nee Haji testified that when a co-worker called him a “nigger” and he complained to his supervisor, his supervisor just said “OK.” Muslim employees were sometimes derided when they requested to pray. After Somali trainer M. I. Mohamed translated complaints from Somali Muslim employees to B-shift Superintendent Juan Palacios, Mr. Palacios asked him: “What's wrong with your people?”

         The plant locker rooms were also the scene of incidents between praying Muslim employees and other employees that, both intentionally and unintentionally, interfered with Muslim employees' prayers. Some praying employees would place their hard hats in front of them while praying to prevent others from walking in front of them. Other employees would step over the hard hats either with or without knowing that doing so was offensive to the Muslim employee. In isolated incidents, other employees would kick the hard hats of praying Muslims or otherwise intentionally interfere with their prayers. For example, Layla Gurux testified that, on September 19, 2008, she was in the middle of praying when Mr. Palacios grabbed her hijab and told her that JBS employees were “not here to exercise” and that “if you ever do this exercise again, you will get fired. This is America. We are here to work; we are not here to exercise.” Tr. 2040:7-22 (L. Gurux). Mr. Palacios then wrote up Ms. Gurux for an “unauthorized break.” Ex. C-77. However, most of the time Muslims could pray in locker rooms on authorized breaks without interference.

         C. JBS's Awareness of Prayer Issues Before Ramadan 2008

         During Ramadan 2007, JBS's Muslim employees at its Grand Island, Nebraska beef plant raised the issue of prayer breaks with management. Approximately 100 Muslim employees at the Grand Island beef plant walked off the job to protest the plant's alleged refusal to provide an extra break for the sunset prayer. Doug Schult, JBS's head of labor relations, researched Muslim religious practices and looked for ways to accommodate them. Ultimately, JBS did move the meal break at the Grand Island plant to coincide with sundown for some parts of 2007, but it did not otherwise make accommodations at its Grand Island plant or other plants.

         Before Ramadan 2008, Greeley plant managers knew that the Muslim employees prayed at work because JBS's Somali Muslim employees had regularly made prayer break requests since JBS began hiring them. Also JBS's management employees regularly saw employees praying around the plant.

         Notwithstanding the general awareness of Islamic prayer practices, JBS's managers and supervisors did not anticipate issues arising at the Greeley plant during Ramadan 2008. No prayer issues arose at the Greeley plant during Ramadan 2007. Mr. Timejardine, a non-Somali Muslim supervisor, testified that he did not anticipate any prayer-related issues before the events of Ramadan 2008. The union also did not anticipate any Ramadan-related issues in 2008 and was surprised when they arose.

         D. Ramadan 2008

         In 2008, Ramadan ran from September 1 through September 30. Maghrib prayer times ranged from 7:30 p.m. on September 1 to 6:42 p.m. on September 30. The events of the first week of Ramadan in 2008 played a central role in the trial and are explained day by day below.

         1. Monday, September 1, 2008

         The first of the month was Memorial Day and the plant was closed for the holiday.

         2. Tuesday, September 2, 2008

         The rest break started at 6:31 p.m. Ex. A-36. The meal break started at 9:00 p.m. Id. The line ...


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