good morning your honors i'm jeanne sharon i'm honored to have to appear here before before this panel on behalf of darryl patterson this is an important religious freedom case not just for him but for all working people of faith throughout th circuit and it's important stems from and is illustrated by the serious legal errors that the district court made in resolving the three core issues that i'd like to briefly address today first the reasonable accommodation issue then undue hardship and finally whether the summary judgment on an accommodation claim requires summary judgment on all other claims that are based on similar facts as to the accommodation claim let me begin by giving walgreen's its due and b acknowledging the admirable accommodations that were made by some walgreens officers early in darrell's employ people who were gone by august twentieth of two thousand and eleven when the critical events in this case happened the first such walgreens officer was roberto levy the h r manager who actually hired darryl and who told him that his religious need to avoid work from sundown friday to saturday quote would not be a problem whatsoever that's at page fifteen of darryl's sure i understand why you're going there and show how reasonable you are and i'm not sure we have time for that let me ask you one thing i couldn't reall the training was supposed to start that morning and then she offered at eleven fifteen after he didn't appear is there anything in the record summary judgment record about how long it was expected the training would take yes it's and i can get specific sites on robot all that but it's undisputed that it was a two hour training session that was scheduled to start at eleven thirty and early in davidson testified that yes she she offered to come in and cover the training the the manager who was on duty a ms rodrigues davidson offer that at eleven fifteen the manager on duty ms rodriguez said  i can go ahead and handle this it's not scheduled to start for another fifteen minutes i can handle it you don't need him and elizabeth rodriguez deposition was taken right yes surely she was asked why did you reject that offer terms of not handling it why did she say i'll handle it and then her handling of it was defier the point lead to the firing of a point well i don't i don't think she ever said exactly why she rejected the offer i assume it was just because she didn't she didn't want to put curly into the to the inconvenience of having to drive into the office i'll never ask that you never asked that in the deposition then why she rejected the offer why we didn't ask that no you never ask that in the deposition question mark i'm not sure whether we did or not i'll find out before a bottle but you're right unfortunately and the reason that we're here today is that despite earlier accommodations in another another person who was willing to accommodate darryl was was caroline scott who was who is currently supervisor but she left shortly before darr firing so by the time august twentieth rolls around the two decision makers were curling davidson and carol white the h r manager and they took a hard nosed position that in davidson's words and this is a page eleven of  page twelve of her deposition that there is quote no legal duty or requirement that you accommodate anyone's religion in the workplace so let me ask you this though without respect to what she said why under cases of ours like mor brown and beatle isn't it enough that they offered him the opportunity to swap shifts i mean the way that i read morris at brown it seems like what you're saying is not enough to allow him the opportunity to swap shifts you employer have to facilitate the swapping of shifts but as i read morris at brown we basically said wrong it's enough to allow the employee the opportunity to swap and we quoted some tenth circuit case that said it would be unreasonable to require the employer to go  a couple of distinctions your honor more said brown was decided after a full trial a full bench trial and it was and this court addressed it under a clear error standard but that still sounds like a legal conclusion right i mean what's the duty of the employer is it to allow the swapping of shifts or to facilitate to ensure the swapping of shifts and it sounds like we said aloud as a matter of law well i don't think the court said that is a matter of law any allowance of swapping is enough and this case illustrates why that wouldn't be adequate because because in this case daryl took took full advantage of the opportunity the that he had been given to swap in fact curling discourage him from swapping with the one other person that she had said previously he was allowed to swap with which was the other trainer ms all saw her lean discourage him from doing that but he still did it anyway and then that that proved to be not enough he then in a in a sense he tried to do another swap with davidson herself right by telling her that you know that he was going to be able to come in that day and then of course she actually offered to come in and accompany represented refused that offer so at a minimum there was  a he really didn't have a fair opportunity to swap because the company rejected the swap that he was sort of able to arrange through david's all the other doesn't the other side say that there were a couple of other options that he didn't explore and who were those people and why weren't they viable after i guess i mean after all spa but before davidson they they weren't viable because davidson had previously told him specifically if you want to swap you have to swap with somebody else the he called her on her cell phone and that was a number that she had given to her to her subordinates previously now they claim that that was her personal cell phone rather than her work cell phone but that was a number that she had given them to call her on but  addition to that call to her cell phone it's undisputed that at seven thirty the next morning he called and left a message on her office line and said look it's my sabbath i'm not going to be able to come in today you know the implication being you know if you're relying on me to go forward with this training we're not going to be able to do it so i think david davidson's misunderstanding of the law probably explains  she why she in the company ultimately refused to accommodate darryl on august twentieth and of course that's the heart of this case and walgreens like the district court strives mightily to avoid talking about what actually happened on august twentieth and why is that because walgreens never offered darryl any accommodation at all as to that day much less a real reasonable accommodation and and  it's also undisputed that as david said admitted at page twenty eight of her deposition that she and white after that those events were concluded they elected to discipline darryl and to end with a far punishment than if he had simply missed for another reason like sleeping in and now yes it's true that the district court also found that walgreens set off had been willing to let darryl arrange wops in the past but obviously if you violate the law on day ten compliance with the law on days one through nine doesn't excuse the subsequent violation and the district court also pointed to a walgreens offer to send darryl back to the ranks of the customer care representatives but that of course would have would have involved more than a fifty percent pay cut and he also had he also had the assurance from the h r supervisor white and this is it pages forty seven and forty eight of darryl deposition that accepting that change would not even mean that he could keep his sabbath he specifically asked her that if i change can i keep my sabbath and she answered on equivocally no so obviously even if  c r job that would have been an adverse employment consequent subject to subject to title seven and ask you a question so given the circumstances what should walgreens and don you know there's this case in the supreme court   and i think maybe you don't have to accommodate religious employees at the expense of others and so if the only alternative here was also paul she can't do it for valid reasons i guess davidson is the only other alternative what should walgreens have done well there the record shows that there are a number of other options there there were other people who could actually have substituted for him that day and there was david's and there was also shepherd daryl wasn't allowed to caught to ask shepherd shepherd testify that he could have substituted liz rodriguez excuse me liz rodriguez herself said that she could substitute and ultimately she did kind of kind of substitute for him but that all assumes that this training actually had to happen on that saturday morning there's also lots of evidence in the record that they could have pushed that training off to sunday and let daryl do that training it was just a two hour training to that training along with the three hour training that he was scheduled to do on on sunday or they could have scheduled it for monday kind of accommodation i can understand allowing allowing some voluntary swaps but saying telling everybody no we scheduled you for saturday but we're going to move that entire training session  n accommodate one employee i don't think reasonable well they they could have done the accommodation before they even scheduled the training right they had darrell had just had a performance review with davidson two weeks before this in which he had said  i think you need to be willing to to be more flexible in your scheduling with i don't think an employer we've ever held an employer has to schedule a work around one particular employee is religious doesn't that doesn't sound to me anything that would require from the cases where all i'm doing your honor is just as just answering the question about what other options they had and they did have other options i understand accommodative if the law doesn't require those particular options to be used i don't see how that is something that they can be held responsible for not considering her not offering i understand you're on the what the law requires is that the employer offer a reasonable accommodation and as to august twentieth the record is clear that there was no accommodation of any kind offered to darryl paterson there were other things the company could have done maybe maybe they weren't legally required but the but the legal requirement is that is that the company offer a reasonable accommodation to when the work religion conflict comes up and that simply didn't happen here as to august twentieth there is there any accommodation in your mind short of a guarantee to daryl you'll never have to work on saturday that's reasonable in this particular case where we're not asking for a guarantee on figure out i guess what you are asking for is not a guarantee well in the all we're asking for is what the rule is what the law requires which is when a work religion conflict comes up the employer has to be willing to offer a reasonable accommodation as to that particular conflict it's not good enough to say well we accommodated you in the past and so we satisfy the obligation and it's not good enough to say well in the future will accommodate you whenever the work religion conflict comes up the employer has to offer a reasonable accommodation and obviously the employee has to be willing to cooperate with it it sort of feels like you're asking for a guarantee here because here the the conflict did materialize and your say you told me that it's not enough even to do it or shepard had to do it or they had to postpone it anything to keep darryl from having to work on saturday that that's not our position you're on your honor another option would have been for them to simply tell him look if can't do it we'll also let you approach sheppard and davidson and rodriguez and the record is that any of those three could have done it the problem was that they've it's an had told him you can only seek a swap from from all  whether miss rodriguez was deposed in fact she was not deposed the evidence that we have in the record about what her what she did comes from his davidson who was deposed and ms davis and testify that miss rodriguez had them undertake study time understood from the point of that she was willing to do that presumably that's why he called her friday night and called her cell phone was to say i'm not going to go and see if she would offer she was his boss remember certainly she would be qualified to do it in could do it but and then he called her and said well be clear because there's a question about the cell phones he called her personal cell and the record is clear that they were to call her business cell she didn't pick up the personal cell message until after the training that day on saturday eleven thirty tuesday after eleven thirty and four thirty pm and i don't know the the record may show the exact time i don't know it that well to tell you but it should be in a deposition that but the point i think is is that this is all a red herring by mr patterson because what happened was he was given the opportunity to get someone to cover it and as judge newsome said the beetle decision the hard hardest  decision says that the statutory inquiry ends because then otherwise you are telling someone who has firmly held religious beliefs that their beliefs are more important than the secular beliefs or reasons why somebody else might not want to work or he doesn't end because if you offer somebody that option and they arrange that option and then you reject it that is not accommodation and that was not the option that was in fact arranged but you said it in when you tell somebody they can arrange so it doesn't end then you've got to look and see if they found a substitute there who was a reasonably reasonably a violent boy and if the company unreasonably rejected the swap that they had told the employee the employee could make well respectfully we believe that because there's no guarantee the limitation of the conflict that if you give an opportunity to eliminate the conflict you have met your duty has to be a real opportunity you can't say have to do more than that is which is be open to any reasonable swap absolutely down into the weeds about whether this davidson coming in late or being contacted late and then calling rodriguez late was a reasonable rejection of the song yes sir and i'm not artfully state my position i agree with you that that you can't just say this is the one option and it's not a viable option in fact that's what happened with why the tenth circuit reversed that bird decision there are factual questions about that here though i would be clear that what our position is that beetle makes it clear that there and judge wilson had this case when he was a magistrate judge my firm handle that case i'm very familiar with that he was a detention deputy and they had a neutral scheduling system and they had the ability to give the ability to swap he argued to judge wilson that the employer had to do more than just given an opportunity swap they had to facilitate the swap and judge wilson in this court rejected that argument that they had to facilitate and that answers your question judge newsome that they have to give the opportunity has to be a real opportunity judge carnes absolutely has to be there also is not a reasonable accommodation what about  and pointed out that that she went on to say she was unaware of any policy against that but what that language means is that we don't do it as a matter of always doing it that it has to be done in fact what happens is say that we have to eliminate the conflict which is essentially what member this is in the context of a conversation that he says that what i want is i need to work to have the sabbath off i have to have that and i want to guarantee of that and this is in the context of a conversation with when he had missed a day and he had been offered well you can go back to the c c r position where the undisputed evidence is it he never had a problem with getting a swamp or you can look at other positions within walgreens will facilitate that and help you do that and his question the only question he asked was well i have a guarantee that i want have to work the sabbath and carol white did say i can't guarantee that no you won't have that because court knocked it down quickly because the record evidence says he had been accommodated and he was offered accommodations it she could be wrong but that doesn't raise a material question of fact the and especially when it's followed in the context with mr davidson in the room with miss white saying we are offering you these other accommodations so that is something that doesn't warrant a trial remained for trial just because she said that and judge sharp took care of that and this this thing about the c c r because i think we're going to get some argument about we certainly got it in the brief the c c r position there's some contention that that is a fifty percent reduction in pay but there's no record evidence of that but let's assume that it is there there's no authority that they cite that say that that's an  reasonable accommodation in fact we cite authority from this circuit your honour's that says that it can be a reasonable accommodation a reduction in pay but these things always nor the fact that offer was made to look at finding another position for him so even sweep aside the c c r position because of the fifty percent pay question or not even though it's not in the record yet that question wasn't asked by the plaintiff he didn't say was it pay or with the duties and matter of law to tell the employer how to run its business and he will be their arms and anyway when they were because they had to get an emergency situation they had training on saturday and sunday and then monday and then tuesday because the alabama center was being closed by the board of pharmacy health in alabama and it was an emergent situation and this is why the law says that you don't have to accommodate at all costs you simply have to offer a reasonable accommodation he not only received one but multiple attempts and in fact the have a the record is is replete with a history of accommodation of this gentleman including scheduling changing the scheduling of trainers in the past but that's back when there were more trainers this  business needs of the company war that the w a h i business was being spun off and this also all the other trainer was going with that business and he was the only trainer left so they met with him and asked are you going to be able to work the sabbath if there's an emergent situation of the need and he said i won't and then they said the c c r they said other positions and he said i won't do it is that when day is a nineteenth is w because the company received very short notice from alabama and the nineteenth and then what i want to be clear about that is he did have options to call other people he admitted he testified that he had other people that he could have called but he didn't childcare issues i can't do it and then he called davidson that night on a personal cell left a message that he's not going to ask her if she would cover it that's undisputed she doesn't pick that up until after the training starts on saturday and then she is contacts and has a discussion with rodriguez which we've already discussed so let me ask this just before we move on just so i understand so among the other plausible alternatives i think mr scherer said that he couldn't he had been instructed know but he does say it is in the record that he said that in the statement but that that is certainly concentrated to what the rest of all the record evidence and i thought the law in our circuit was in fact phrasing that rhetorically the law in our circuit is hearsay statements aren't mis what summary judgment if the reducible to testimony at trial even even so i'm not going argue with that judge because again i think this is a red herring as to whether shepherd we was told that or not because he was told that he could call other people that's undisputed now but the and he called the company can't offer as an alternative he didn't pursue one that he was directed by the company not to pursue to with shepherd as an alternative but we didn't what we offered to him so you're not contending he could have called shepherd i'm not that's not our case  ok i think again that's a side issue our cases is that he was told and he knew it because he didn't have to call curling davidson or anybody else before he called missiles ball he knew he could call other people and that's the point again he had an opportunity a reasonable opportunity to accommodate this we can't guarantee that everybody is going to say yes i'll work otherwise that elevates his interests over theirs that's what he wanted that's why he was separated he's tried to recast it to say that it's discipline for missing one day a two hour training session that's good advocacy but that's not what the law says is that in this case it was that under these facts he was given multiple opportunities they did not say you just fired because you missed it they said we have to fix this and gave him opportunities he refused to pursue those opportunities and the where i was going to go with that point is that as a matter of law requiring employees to pick up the slack of another religious imp requiring them to do that as a matter of law is undue hardship because part of their argument also is that the district court erred in finding undue hardship and they want to argue well as are koester because they have flown somebody in a what that's all because that's a question of says that the telfair decision here from new haven circuit says it that you do not title seven doesn't require that unequal treatment of elevating the needs of religious employees over the secular needs of non religious employees and so the final points i'd like to make about that is the undisputed record evidence here that supports what judge sharp did it and stead of going to these side issues of what could have should of all this monday morning quarterbacking afterwards the real issue is what were the opportunities not what actually happened and the opportunities are undisputed and we can argue about how many different opportunities but remember the law is that he doesn't get the accommodation of his choice he's only entitle to a reasonable accommodation and once that is offered that's where i suggest that and so neo says that the inquiry should end because otherwise in the court is getting into the business of whether a religious employee's needs or paramount or superior to non religious employees but very important needs to say have child care or if they have another job on the weekend that they have to have to be able to pay the rent and so that's why there is a limit to this and the abercrombie decision which they argue in their brief changes that didn't change that and the bird decision in fact says that they're not entitled to the eliminate the conflict and that's what they wanted to hear judge sharp saw that and concluded based upon well settled precedent that your honour's of for me with the more said brown decision in beetle and in the last case is that walton versus centers for disease control which is came from the eleventh circuit just a few years ago where that person was given the opportunity to look for other jobs and this circuit said that's enough so respectfully your honour's while you might be tempted to go down the bunny trails of some of these factual issues the not genuine material issues of fact because there is no dispute as to what the accommodations were that were offered he admitted at the three people that were in that meeting with all been deposed the record is full on that and you have it before you so with that we'd ask that you would affirm the district whether rodriguez was deposed she was not she was not in fact opposed and we do have but we do have the evidence of what she said in that interaction with curley and davis from from davidson's deposition and davidson's deposition at page thirty one says that that davidson talked to rodriguez eleven fifteen that saturday morning and the training was scheduled for eleven thirty so there was there was ample time that she could have that she could have come in i want to back up for just a minute to read an overarching point here and that is that we just heard multiple times that if darryl patterson were given an accommodation here if he were to win this case or get an opportunity for trial that that would somehow place  the interest of religious employees above other secular interests will abercrombie held in fact that that the rights of religion of religious employees to practice their faith in the workplace are in fact favored over secular interest and that was that was the whole point of types of is not meaning in can in determining whether an accommodation is reasonable you must always decide in favor of the religious belief until the woman who needs childcare that's tough call your mother in law maybe she can handle it but you got to be here so he can observe absolutely and we don't fall walgreens or is what we're talking about here we don't fall walgreens for not forcing come in but there but there were other options and in fact one of those options would have been shepherd if davidson had modified her instruction to darrell that he could that he could use people other than all is a swap and in fact her in in darrell's deposition that at page forty eight he talks about that that restriction that she had put on his ability to seek out other swaps and he was told that you can only seek swaps for people that are at your same level and shepherd was not at his same level though he testified he could have done it rodriguez was at a different level although she can she said she could have done it as well so that was the problem was the restriction that was placed on his ability to seek to seek swaps and ask you a quick question  actual question so you do say a number of times in your brief that going back to c c or pool would have required a fifty percent pay cut the other side says there's nothing in the record to support that number can you just point me i had a hard time finding it myself can you just point me to a record citation where i can verify the fifty percent well it you can infer it from from facts that are in the record and of course they haven't disputed that it would have been more than a fifty percent pay pay cut they're complaining that is not on the record but they haven't disputed that that would be the that would be the reality the record does say that that when darrell started as a representative he was making nine seventy five an hour which worked out to about twenty thousand dollars a year as i recall and then the record also shows his deposition indicates that he was being paid fifty eight thousand dollars a year when when he was terminated so that's that's about three times what he was making as this as a c c r representative so you can you can easily infer from that that it would have been a big pay