Christmon v. B&B Airparts ( 2018 )


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  •                                                            FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS      Tenth Circuit
    FOR THE TENTH CIRCUIT                    May 24, 2018
    Elisabeth A. Shumaker
    Clerk of Court
    JEROME A. CHRISTMON,
    Plaintiff - Appellant,
    v.                                             No. 17-3209
    D.C. No. 2:16-CV-02341-CM
    B&B AIRPARTS, INC.,                             (D. Kan.)
    Defendant - Appellee.
    ORDER AND JUDGMENT *
    Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
    Mr. Jerome Christmon sued his former employer (B&B Airparts,
    Inc.) under Title VII of the Civil Rights Act of 1964, claiming
    discrimination for failure to accommodate religious practices. Mr.
    Christmon is a Hebrew Israelite and regards Saturday as the Sabbath.
    Nonetheless, Mr. Christmon was required to work mandatory overtime
    *
    We conclude that oral argument would not materially help us to
    decide this appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
    Thus, we have decided the appeal based on the briefs.
    This order and judgment does not constitute binding precedent except
    under the doctrines of law of the case, res judicata, and collateral estoppel.
    But the order and judgment may be cited for its persuasive value under
    Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
    shifts on some Saturdays. Because of his beliefs, Mr. Christmon asked to
    work his overtime hours on Sundays instead of Saturdays. B&B Airparts
    told Mr. Christmon that if he needed time off for religious reasons, he had
    to complete a “Request for Time Off form.”
    Mr. Christmon did not submit the form. Instead, he simply stopped
    coming to work when he was assigned Saturday shifts. B&B Airparts did
    not take any disciplinary action, and Mr. Christmon admits that he was not
    required to work on Saturdays. But he remained dissatisfied because he
    lost the opportunity to earn overtime hours, which he would have kept if he
    had been assigned shifts on Sunday. Mr. Christmon was ultimately fired for
    violating B&B Airparts’ sexual harassment policy.
    After the firing, Mr. Christmon sued under Title VII, claiming that
    B&B Airparts had discriminated against him by failing to change his
    weekend shifts from Saturdays to Sundays. On this claim, the district court
    granted summary judgment to B&B Airparts, holding that it had provided a
    reasonable accommodation to Mr. Christmon.
    Mr. Christmon appeals, arguing that the district court erred in
    granting summary judgment because
         B&B Airparts had submitted an uncertified deposition
    transcript with the summary-judgment motion,
         B&B Airparts had failed to submit any interrogatory responses,
    and
         the record had not shown a reasonable accommodation.
    2
    We reject these arguments. B&B Airparts provided undisputed evidence
    that Mr. Christmon’s deposition was certified, no obligation existed to
    support the summary-judgment motion with interrogatory responses, and
    B&B Airparts provided a reasonable accommodation by allowing Mr.
    Christmon to miss his Saturday shifts. For these reasons, we affirm.
    I.    Standard of Review
    We review de novo the district court’s grant of summary judgment.
    Knopf v. Williams, 
    884 F.3d 939
    , 946 (10th Cir. 2018). Summary judgment
    is appropriate “if the movant shows that there is no genuine dispute as to
    any material fact and the movant is entitled to judgment as a matter of
    law.” Fed. R. Civ. P. 56(a). In applying this standard, we view the
    evidence and all reasonable inferences in the light most favorable to Mr.
    Christmon. See Knopf, 884 F.3d at 946.
    II.   Evidentiary Issues
    Mr. Christmon argues that the district court erred by (1) relying on
    uncertified testimony from Mr. Christmon’s deposition and (2) granting
    B&B Airparts’ motion even though it had not been supported by
    interrogatory responses. Mr. Christmon’s arguments fail because B&B
    Airparts (1) presented undisputed evidence that Mr. Christmon’s deposition
    transcript had been certified and (2) was not required to support the motion
    with interrogatory responses.
    3
    Federal Rule of Civil Procedure 30(f)(1) requires that deposition
    transcripts be accompanied by a certification “that the witness was duly
    sworn and that the deposition accurately records the witness’s testimony.”
    Mr. Christmon argues that the district court could not consider his
    deposition testimony because B&B Airparts had filed a transcript lacking
    the required certification.
    For this argument, Mr. Christmon relies on three opinions from the
    Southern District of Ohio: Moore v. Florida Bank of Commerce, 
    654 F. Supp. 38
     (S.D. Ohio 1986), Morphew v. Lawhon & Associates, Inc., No.
    2:10-cv-716, 
    2011 WL 6122638
     (S.D. Ohio Dec. 8, 2011), and Soliday v.
    Miami County, No. C-3-91-153, 
    1993 WL 1377511
     (S.D. Ohio Nov. 22,
    1993). Reliance on these opinions is misguided because in these cases, the
    parties relying on the deposition testimony failed to provide the court with
    a deposition certification. Moore, 
    654 F. Supp. at
    41 n.2; Morphew, 
    2011 WL 6122638
     at *2; Soliday, 
    1993 WL 1377511
     at *5 n.4. 1 Here, B&B
    Airparts filed the certification when the plaintiffs raised the issue. Because
    the certification was filed, the district court did not err in considering the
    deposition testimony.
    1
    When transcript excerpts are filed, the Southern District of Ohio’s
    local rules require the filer to include the certification. S.D. Ohio Civ. R.
    7.2(e). No such requirement exists in the District of Kansas’s local rules.
    Cf. D. Kan. R. 56.1(d) (requiring attachment of cited deposition excerpts
    without mention of the certification).
    4
    Mr. Christmon also argues that the district court erred in granting
    summary judgment because B&B Airparts had failed to support its motion
    with interrogatory responses. But Rule 56 did not require B&B Airparts to
    support its motion with interrogatory responses. Thus, Mr. Christmon’s
    argument fails.
    III.   Reasonable Accommodation
    Mr. Christmon argues that the district court erred in holding that
    B&B Airparts had provided a reasonable accommodation. We disagree. The
    undisputed evidence shows that B&B Airparts allowed Mr. Christmon to
    skip mandatory Saturday shifts after he had explained his religious
    concern. This relief from Saturday shifts constituted a reasonable
    accommodation, and the district court did not err in granting summary
    judgment to B&B Airparts.
    Mr. Christmon bears the initial burden to show a prima facie case of
    religious discrimination for failure to accommodate. Thomas v. Nat’l Ass’n
    of Letter Carriers, 
    225 F.3d 1149
    , 1155 (10th Cir. 2000). Mr. Christmon
    must show that he
        has a “bona fide religious belief that conflicts with an
    employment requirement,”
        informed B&B Airparts of this belief, and
        “was fired for failure to comply with the conflicting
    employment requirement.”
    5
    
    Id.
     If Mr. Christmon satisfies his burden, the burden would shift to B&B
    Airparts, which would need to
         conclusively rebut an element of Mr. Christmon’s prima facie
    case,
         show the offering of a reasonable accommodation, or
         show an inability to reasonably accommodate Mr. Christmon’s
    religious beliefs without undue hardship.
    
    Id. at 1156
    . The district court assumed that Mr. Christmon had met his
    burden and decided as a matter of law that B&B Airparts’ accommodation
    had been reasonable. We agree.
    “‘Accommodate . . . means . . . allowing the plaintiff to engage in
    [his] religious practice despite the employer’s normal rules to the
    contrary.’” Tabura v. Kellogg USA, 
    880 F.3d 544
    , 550 (10th Cir. 2018)
    (quoting EEOC v. Abercrombie & Fitch Stores, Inc., 
    135 S. Ct. 2028
    , 2032
    n.2 (2015) (omissions in original)). But a reasonable accommodation does
    not necessarily spare an employee from any resulting cost. Pinsker v. Joint
    Dist. No. 28J, 
    735 F.2d 388
    , 390–91 (10th Cir. 1984). Thus, the
    accommodation may be reasonable even though it is not the one that the
    employee prefers. 
    Id. at 390
    .
    The undisputed evidence shows that
         B&B Airparts required its employees to work overtime shifts
    on Saturdays when scheduled,
    6
         before informing his supervisor of his need for religious
    accommodation, Mr. Christmon had been disciplined for failing
    to appear for a Saturday shift, and
         once Mr. Christmon had told his supervisor about the conflict
    between his religious beliefs and the Saturday shifts, B&B
    Airparts allowed Mr. Christmon to skip Saturday shifts with no
    disciplinary consequences.
    See R. at 141 (deposition testimony of Mr. Christmon stating that B&B
    Airparts “basically just allowed me to not come in on my scheduled
    Saturdays”).
    Though Mr. Christmon requested an opportunity to make up his
    overtime hours on Sunday, Title VII did not require B&B Airparts to offer
    Mr. Christmon’s preferred accommodation. B&B Airparts’ accommodation
    allowed Mr. Christmon to avoid the conflict with his religious beliefs even
    if he lost the opportunity for overtime. See Ansonia Bd. of Educ. v.
    Philbrook, 
    479 U.S. 60
    , 70 (1986) (“[U]npaid leave eliminates the conflict
    between employment requirements and religious practices by allowing the
    individual to observe fully religious holy days and requires him only to
    give up compensation for a day that he did not in fact work.”); Pinsker v.
    Joint Dist. No. 28J, 
    735 F.2d 388
    , 391 (10th Cir. 1984) (“Defendant’s
    policy, although it may require teachers to take occasional unpaid leave, is
    not an unreasonable accommodation of teachers’ religious practices.”). 2
    2
    Mr. Christmon cites three consent decrees to support his position.
    Consent Decree, EEOC v. United Parcel Service, Inc., No. 2:12-cv-07334-
    7
    Thus, the district court did not err in deciding that B&B Airparts had
    provided Mr. Christmon with a reasonable accommodation.
    IV.   Conclusion
    We conclude that
        the district court did not err in considering Mr. Christmon’s
    deposition testimony even though B&B Airparts’ motion had
    not initially included the certification,
        B&B Airparts was not required to support its summary-
    judgment motion with interrogatory responses, and
        the undisputed evidence shows that B&B Airparts provided a
    reasonable accommodation.
    Accordingly, we affirm the district court’s grant of summary judgment to
    B&B Airparts.
    Entered for the Court
    Robert E. Bacharach
    Circuit Judge
    FSH-MAH (D.N.J. Nov. 1, 2013); Consent Decree, EEOC v. Maita
    Chevrolet Geo, No. 2:11-CV-03133-MCE-KJN (E.D. Cal. Sept. 25, 2013);
    Consent Decree, EEOC v. Boca Grp., LLC, Nos. 11-CV-80825-
    RYSKAMP/VITUNAC & 12-CV-80172-RYSKAMP/VITUNAC (S.D. Fla.
    Mar. 9, 2012). As negotiated documents lacking legal analysis, these
    consent decrees do not constitute persuasive authority.
    8