Equal Employment Opportunity Commission v. Robert Bosch Corp.

NOT RECOMMENDED FOR PUBLICATION
File Name: 06a0138n.06
Filed: February 21, 2006
No. 05-1099
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff-Appellant,
and
JEFFREY L. CARTER,
Intervenor,
v.
ROBERT BOSCH CORP.,
Defendant-Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MICHIGAN
BEFORE: MERRITT, MARTIN, and GILMAN, Circuit Judges
MERRITT, Circuit Judge. This is a religious discrimination case under Title VII of the
Civil Rights Act of 1964, as amended in 1972, 42 U.S.C. § 2000e(j), brought by the EEOC on behalf
of Jeff Carter, who was discharged by the defendant Bosch (an automobile parts manufacturer), on
September 16, 2002, after four unexcused absences on Saturdays, his day of worship. The only
question presented on appeal is whether the employer has “demonstrated,” within the meaning of
the statute, “that he is unable to reasonably accommodate to an employee’s . . . religious observance

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or practice without undue hardship on the conduct of the employer’s business.” The District Court
granted summary judgment for the company, holding that there is no dispute of material facts about
Carter’s claim that Bosch unreasonably refused to accommodate the employee’s religion. We
conclude that there is a factual dispute about Bosch’s willingness to “reasonably accommodate”
Carter’s “religious observance,” and that the District Court erred in holding as a matter of law that
the employer had carried its burden in showing that it reasonably accommodated its business to
Carter’s religious observance.
I.
Carter, the employee, was employed by Bosch for 25 years beginning in July 1977, and until
January 2002 worked in the foundry casting parts. He was a member of the Old Path Church of
God, which observes its Sabbath from sundown on Friday until sundown on Saturday. Throughout
the 25-year period the company, through one of its supervisors, accommodated Carter’s desire not
to work on his Sabbath by finding volunteers when necessary.
In April 2002, Carter was able to bid for a position on the third shift in the machine shop
where he was initially scheduled to work Sunday through Thursday, thus avoiding any conflict with
his religious beliefs. Then in July of 2002, for business reasons resulting from a “temporary plant
shut-down,” the machine shop went in a so-called “100% situation” in which it was operating 24
hours a day seven days a week, and each person was assigned to work overtime. As a result, Carter
was assigned a mandatory overtime shift from 11:00 P.M. on Friday to 7:00 A.M. on Saturday,
obviously in conflict with his Sabbath observance. The company put the burden on Carter and his
union to find a substitute. They were unable to do so, and Carter was fired. Following unsuccessful

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negotiations regarding Carter’s return to work, this litigation ensued. Carter now appeals the District
Court’s grant of summary judgment in favor of Bosch.
II.
A.
We review a district court’s grant of summary judgment de novo. Nat’l Enters., Inc. v.
Smith, 114 F.3d 561, 563 (6th Cir. 1997). Summary judgment is appropriate where “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(c)). We must take the facts in the
light most favorable to the non-moving party. Brumbalough v. Camelot Care Ctrs., Inc., 427 F.3d
996, 1000 (6th Cir. 2005).
B.
Following an employee’s establishment of a prima facie case of religious discrimination, see
Smith v. Pyro Mining Co., 827 F.2d 1081, 1085 (6th Cir. 1987), 42 U.S.C. § 2000e(j) puts the
burden on the employer “to (1) conclusively rebut one or more elements of the plaintiff’s prima
facie case, (2) show that it offered a reasonable accommodation, or (3) show that it was unable
reasonably to accommodate the employee’s religious needs without undue hardship.” Thomas v.
Nat’l Ass’n of Letter Carriers, 225 F.3d 1149, 1156 (10th Cir. 2000); see also Smith, 827 F.2d at
1085. It is undisputed that Carter has established a prima facie case of discrimination. The only
issue on appeal is whether there was a material dispute of fact about whether Bosch reasonably
accommodated Carter’s religious beliefs.

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The reasonableness of an employer’s attempt at accommodation must be determined on a
case-by-case basis and is generally a question of fact for the jury, rather than a question of law for
the court. See Smith, 827 F.2d at 1085; Redmond v. GAF Corp., 574 F.2d 897, 902-03 (7th Cir.
1978); EEOC. v. IBP, Inc., 824 F. Supp. 147, 153 (C.D. Ill. 1993). In general, “one means of
accommodating an employee who is unable to work on a particular day due to religious convictions
is to allow the employee to trade work shifts with another qualified employee.” Smith, 827 F.2d at
1088; see also Debbie N. Kaminer, Title VII’s Failure to Provide Meaningful and Consistent
Protection of Religious Employees: Proposals for an Amendment, 21 Berkeley J. Emp. & Lab. L.
575, 605 (2000) (citing cases). Merely granting employees permission to find volunteers to swap
shifts, however, does not definitively constitute “reasonable accommodation” as a matter of law in
all cases. In Smith, 827 F.2d at 1088, this Court held that such an arrangement was not a reasonable
accommodation because the employee believed that it was a sin to ask another to work for him.
Similarly, in McGuire v. Gen. Motors Corp., 956 F.2d 607, 610 (6th Cir. 1992) (per curiam), our
Court held that a jury question existed as to whether allowing voluntary shift swaps constituted
reasonable accommodation in light of the employer’s circulation of surveys that allegedly made it
“virtually impossible” to find replacements. In addition to allowing voluntary shift swaps, some
employers have curried favor with affirmative actions like holding meetings with the employee,
attempting to find the employee another job, supplying the employee with a roster sheet containing
the schedules of co-workers, and allowing the employee to advertise his need for shift swaps during
daily roll calls and on the employer’s bulletin board. See Trans World Airlines, Inc. v. Hardison,

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432 U.S. 63, 77 (1977); Beadle v. Hillsborough County Sheriff’s Dep’t, 29 F.3d 589, 593 (11th Cir.
1994); Cowan v. Gilless, No. 95-5679, 1996 WL 145873, at *1 (6th Cir. 1996) (per curiam).
On the other hand, “a week-to-week, wait-and-see posture” amounts to no accommodation
at all. EEOC v. Arlington Transit Mix, Inc., 957 F.2d 219, 222 (6th Cir. 1991). Nor is the statute
satisfied by “an ad hoc arrangement contemplating that the inevitable collision between [the
employee’s] religious beliefs and the company’s new work schedule would be dealt with when it
arose.” Id. This Court has also made clear that “[a]n employer who permits an employee to avoid
mandatory Sabbath work only by using accrued vacation does not ‘reasonably accommodate’ the
employee’s religious beliefs.” Cooper v. Oak Rubber Co., 15 F.3d 1375, 1379 (6th Cir. 1994).
The instant case presents a genuine dispute of material fact as to what Bosch was willing to
do in order to accommodate Carter. According to Carter, the only thing that the employer was
willing to do was to let Carter and the union try to find someone who would work additional
overtime. It is unclear exactly what the company was willing to do with respect to “swapping”
overtime with other employees. Some of the evidence suggests that the company did nothing more
than allow Carter to find another employee who would agree to work additional overtime. The
EEOC maintains that the employer did not permit Carter to “swap shifts,” and that in granting the
summary judgment the District Court “overlooks the evidence that Bosch officials on at least two
occasions stated that a shift swap would not be permitted in the machine shop.” Appellant’s Final
Brief at 21. According to the EEOC, the employer’s policy was designed only to identify employees
willing to work additional shifts but not to swap shifts. “Because persons willing to work additional
shifts are not necessarily the same as those willing to swap their overtime shift with an overtime shift

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of another worker, the procedures Bosch provided were inadequate.” Id. at 21-22. There appears
to be a factual conflict about whether Bosch was only willing to allow Carter to find volunteers
willing to take on Carter’s overtime, or to find volunteers who would “swap” overtime shifts. There
seems to be no dispute that the company itself was unwilling to try to find swaps or substitutes for
Carter.
Carter, the EEOC and the Union claim that as a result of the across-the-board overtime
requirement, many employees complained and sought relief from the company. The company’s
uniform response was to require the employee to find someone else to work the overtime. It
apparently made no distinction between Carter and others who had no religious reasons for asking
for an accommodation.
On pages 111 and 112 of the Appendix, the Union Steward, who also worked in the machine
shop, Sharene Tyler, states that the employer through the representative of the Company’s human
resources department, Benson James, would not allow shift swapping to help Carter on his overtime
shift and that the company apparently would not allow “out of class” (meaning the foundry or other
departments than the machine shop) swaps. The Union Steward says that Bosch would not seek or
assist in seeking workers from other departments who qualified for Carter’s overtime work, nor
would the employer try to find employees of the machine shop to swap the overtime shift with
Carter. Benson James does not appear to deny this. Benson James declined to have a meeting with
the Union and Carter to try to reach some accommodation. He simply put the question of
accommodation on the shoulders of the Union and Carter. That much is clear from Benson’s e-mail
found on page 297 of the Appendix.

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In light of the conflicting evidence about what the company was willing to do to
accommodate Carter’s Sabbath observance, we must reverse the summary judgment and remand the
case to the District Court for trial. The plaintiff has asked for a jury trial on factual issues. Based
on the dispute of fact about how far the company was willing to go to help Carter observe his
Sabbath, the jury should be allowed to determine these issues. It should be allowed also to
determine the factual question of whether the employer has met the terms of the statute by
demonstrating “that he is unable to reasonably accommodate to an employee’s . . . religious
observance or practice without undue hardship on the conduct of the employer’s business.”
Accordingly, it is so ORDERED.

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