United States District Court, D. Colorado
PHASE I FINDINGS OF FACT AND CONCLUSIONS AT
A. BRIMMER, UNITED STATES DISTRICT JUDGE
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
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.
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.”).
FINDINGS OF FACT
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”).
No. 490 at 6-7.
Findings of Fact From the Trial Evidence
Court makes the following findings of fact by a preponderance
of the evidence.
JBS and the Greeley Beef Plant
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.
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.
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
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. 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.
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.
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.
“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.
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.
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,
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.
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.
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.
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
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.
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. 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.”
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.
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. 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.
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.
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. 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.
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
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.
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.
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.
2008, the relationship between JBS management and the union
was not cooperative, and the union was filing a large number
Muslim Employees' Religious Beliefs
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.
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.
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.
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.
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.
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
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 §
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.,
general procedure for taking a scheduled break was for
employees in the slaughter and pre-fabrication 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.
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.
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.
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.
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. Nonetheless, some supervisors would grant
employees permission to pray when asked, but such supervisors
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.
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, 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.
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.
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.
Hiring, Orientation, and Training
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.
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.
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.
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.
Procedures for Disciplinary Suspension and
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
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
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.
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.
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  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
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?”
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.
JBS's Awareness of Prayer Issues Before Ramadan
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.
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.
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
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.
Monday, September 1, 2008
first of the month was Memorial Day and the plant was closed
for the holiday.
Tuesday, September 2, 2008
rest break started at 6:31 p.m. Ex. A-36. The meal break
started at 9:00 p.m. Id. The line ...