FILED
IN THE UNITED STATES DISTRICT COURT ~~,"~~,~h ,p,.tcC~.I.T..I.’,~..’:.,. t’,~~r""~’~’"
FOR THE WESTERN DISTRICT OF NORTH CAROLI~ SEP -9 ;i’~ [~: 0~ CBA~OTTE OIVlSlON

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

)

)

v.

)

)

FIRESTONE FIBERS & TEXTILES )

COMPANY, a Division of BFS Diversified )

Products; BFS DIVERSIFIED PRODUCTS,)

LLC; and BRIDGESTONE AMERICAS)

HOLDING, INC.,

)

)

Defendants.

)

)

COMPLAINT JURY TRIAL DEMAND

NATURE OF THE ACTION This is an action under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991, to correct unlawful employment practices on the basis of religion, and to provide appropriate relief to David Wise, who was adversely affected by such practices. Specifically, the U.S. Equal Employment Opportunity Commission (the "Commission") contends that Defendants Firestone Fibers & Textiles Company, a division of BFS Diversified Products, LLC, BFS Diversified Products, LLC, and Bridgestone Americas Holding, Inc. (collectively "Defendants") failed to accommodate Mr. Wise’s religious beliefs and discharged him because of his religion, Christian (Living Church of God).
JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 706(0(1) and (3) of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3) ("Title VII") and Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a.
2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the Western District of North Carolina.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission, is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Section 706(t)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3).
At all relevant times, Defendant Firestone Fibers & Textiles Company has been a division of Defendant BFS Diversified Products, LLC, a Delaware limited liability corporation, doing business in the State of North Carolina and the Cities of Kings Mountain and Gastonia, and has continuously had at least fifteen (15) employees.
5. At all relevant times, Defendant BFS Diversified Products, LLC, a subsidiary of Defendant Bridgestone Americas Holding, Inc., has been a Delaware limited liability corporation doing business in the State of North Carolina and the Cities of Kings Mountain and Gastonia, and has continuously had at least fifteen (15) employees.
6. At all relevant times, Defendant Bridgestone Americas Holding, Inc. has been a Nevada corporation doing business in the State of North Carolina and the Cities of Kings Mountain and Gastonia, and has continuously had at least fifteen (15) employees.
7. At all relevant times, Defendant Firestone Fibers & Textiles has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 V.S.C. §§ 2000e(b), (g) and (h).
2

8. At all relevant times, Defendant BFS Diversified Products, LLC has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g)and (h)of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).
9. At all relevant times Defendant Bridgestone Americas Holdings, Inc. has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).
STATEMENT OF CLAIMS 10. More than thirty days prior to the institution of this lawsuit, David Wise filed a charge with the Commission alleging violations of Title VII by Defendants. All conditions precedent to the institution of this lawsuit have been fulfilled. 11. From around February 15, 2002 until around September 23, 2002, Defendants engaged in unlawful employment practices at their facilities located in the cities of Kings Mountain and Gastonia, North Carolina, in violation of Section 703(a)(1) of Title VII, 42 U.S.C. §2000e-2(a)(1) by failing to provide Mr. Wise a reasonable accommodation of his religious beliefs and discharging him because of his religious beliefs.and practices. Specifically, Mr. Wise, who is a member of the Living Church of God, holds a sincere religious belief that he should not work on his Sabbath, from sundown Friday through sundown Saturday. Around February 15, 2002, Mr. Wise informed Defendants of this sincerely held religious belief, and requested as a reasonable accommodation that he be excused from work during his Sabbath. Despite Mr. Wise’s request, Defendants failed to provide a reasonable religious accommodation that would resolve the conflict between Mr. Wise’s religious beliefs and his work schedule in such a way that Mr. Wise could continue to work for Defendants. As a result, Defendants discharged Mr. Wise around September 23, 2002 because of his religious beliefs and practices, specifically because of time he took off for his Sabbath and religious observances.

12. The effect of the practices complained of in paragraph 11 above has been to deprive Mr. Wise of equal employment opportunities and otherwise adversely affect his status as an employee because of his religion, Christian (Living Church of God).
13. The unlawful employment practices complained of in paragraph 11 above were intentional.
14. The unlawful employment practices complained of in paragraph 11 above were done with malice or with reckless indifference to the federally protected rights of Mr. Wise.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendants, their officers, successors, assigns, and all persons in active concert or participation with them, from discriminating against current or future employees based on their religious beliefs. B. Order Defendants to institute and carry out policies, practices, and programs which provide equal employment opportunities for employees who require religious accommodation for their sincerely held religious beliefs, and which eradicate the effects of its past and present unlawful employment practices. C. Order Defendants, jointly and severally, to make whole David Wise by providing appropriate back pay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of the unlawful employment practices described in paragraph 11 above, including but not limited to reinstatement or front pay. D. Order Defendants, jointly and severally, to make whole David Wise by providing compensation for past and future pecuniary losses resulting from the unlawful employment

practices described in paragraph 11 above, including but not limited to medical expenses and job search expenses, in amounts to be determined at trial.
E. Order Defendants, jointly and severally, to make whole David Wise by providing compensation for past and ft~ture non-pecuniary losses resulting from the unlawful employment practices complained of in paragraph 11 above, including but not limited to emotional pain, suffering, inconvenience, loss of civil rights, loss of enjoyment of life, and humiliation, in amounts to be determined at trial.
F. Order Defendants, jointly and severally, to pay David Wise punitive damages for their malicious and reckless conduct described in paragraph 11 above, in amounts to be determined at trial.
G. Grant such further relief as the Court deems necessary and proper in the public interest.
H. Award the Commission its costs of this action. JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its complaint. DATED this the ~ day of September 2004.

Respecttglly submitted, ERIC S, DREIBAND General Counsel JAMES L. LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
~:- ............_W_~~0507
Acting Regional Attorney
KAt~ GIBB ~k-’NNA~I~I~ Senior Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Charlotte District Office 129 West Trade Street, Suite 400 Charlotte, North Carolina 28202 Telephone: 704.344.6885 Facsimile: 704.344.6780 ATTORNEYS FOR PLAINTIFF
6

 
 RtC~£IVEU "·utr-

CHARLOTTE, N.C.
IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DlSTRICT OF NORTH CAROO,..tIOV 12 PH~: 05

CHARLOTTE DIVISION Civil Action No 3:04 CV 467

U.S,~. U,;;; IdeT C()~J
W. 01ST. OF N.C. .

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,

and

David Wise

Plaintiff-Intervenor,

COMPLAINT IN INTERVENTION (Jury Trial Demanded)

v.

Firestone Fibers & Textiles Company, a division of BFS Diversified Products; BFS Diversified Products, LLC; and Bridgestone Americas Holdings, inc.,
Defendants.

Plaintiff-Intervenor David Wise ("Wise") alleges: NATURE OF THE ACTION
This is an action under Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991, to correct unlawful employment practices on the basis of religion, and to provide appropriate relief to Plaintiff-Intervenor David Wise, who was adversely affected by such practices. Plaintiff-Intervenor David Wise specifically alleges that the defendants set forth above failed to accommodate Mr. Wise's religious beliefs and discharged him because of his religion, Christian (Living Church of God).
JURISDICTION AND VENUE I. Under Title VII, Wise is a "party aggrieved" by the practices ofthe Defendants and there has
the right to intervene pursuant to 29 U.S.c. 2000e-5(f).
1

Ia. To the extent that claims are alleged or asserted under the law of North Carolina, the Court has supplemental jurisdiction, pursuant to 28 U.S.C. § 1367(a).
2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the Western District of North Carolina. PARTIES
3. Plaintifl~ the Equal Employment Opportunity Commission (the "Commission"), is an agency of the United States of America charged with the administration, interpretation and enforcement of Title VII and is authorized to bring this action by § 706(t)(1) and (3) of Title VII, 42 U.S.c. § 2000c-5(f)(1) and (3).
3a. Plaintiff-Intervenor is an adult male citizen and resident of York County, South Carolina. Plaintiff-Intervenor is entitled to intervene as a matter of right, pursuant to § 706(f)( 1) of Title VII, 42 U.S.C. § 2000e-5(f)(1).
4. At all relevant times, Defendant Firestone Fibers & Textiles Company, has been a division of BFS Diversified Products, LLC, a Delaware limited liability corporation doing business in the State of North Carolina and the Cities of Kings Mountain and Gastonia, and has continuously had at least 15 employees.
5. At all relevant times, BFS Diversified Products, LLC, a subsidiary ofDefendant Bridgestone Americas Holdings, Inc., has been a Delaware limited liability company doing business in the State of North Carolina and the Cities of Kings Mountain and Gastonia and has continuously had at least 15 employees.
6. At all relevant times, Defendant Bridgestone Americas Holdings, Inc., has been a Nevada
2

Corporation doing business in the State ofNorth Carolina and the Cities of Kings Mountain and Gastonia and has continuously had at least 15 employees. 7. At all relevant times, Defendant Firestone Fibers & Textiles Company has continuously been an employer engaged in an industry affecting commerce, as defined by Title VII, 42 V.S.c. § 2000e(b), (g) and (h). 8. At all relevant times, Defendant BFS Diversified Products, LLC has continuously been an employer engaged in an industry affecting commerce, as defined by Title VII, 42 U.S.C. § 2000e(b), (g) and (h). 9. At all relevant times, Defendant Bridgestone Americas Holdings, Inc. has continuously been an employer engaged in an industry affecting commerce, as defined by Title VII, 42 U.S.c. § 2000e(b), (g) and (h).
STATEMENT OF CLAIMS JO. More than thirty days prior to the institution of this lawsuit, David Wise filed a timely
charge of discrimination with the Commission, alleging violations of Title VII by Defendants. 11. From on or about February 15,2002 until around September 23,2002, Defendants engaged in unlawful employment practices at their facilities located in the cities of Kings Mountain and Gastonia, North Carolina, in violation of Section 703(a)( 1) of Title VII, 42 U.S.c. § 2000e~2(a)(l) by failing to provide Mr. Wise a reasonable accommodation of his religious beliefs and discharging him because ofhis religious beliefs and practices. Specifically, Mr. Wise who is a member of the Living Church of God, hold a sincere religious belief that he should not work on his Sabbath from sundown Friday to sundown Saturday or on other
3

specified religious observances. Around February 15,2002, Mr. Wise informed Defendants of this sincerely held religious belief, and requested as a reasonable accommodation that he be excused from work during his Sabbath. Despite Mr. Wise's request, Defendant failed to provide a reasonable religious accommodation that would resolve the conflict between Mr. Wise's religious beliefs and his work schedule in such a way that Mr. Wise could continue to work for Defendants. As a result Defendants discharged Mr. Wise around September 23, 2002 because of his religious beliefs and practices, specifically because he took off for his Sabbath and religious observances. 12. The effect of the practices complained of in paragraph 11 above has been to deprive Plaintiff.·Intervenor Wise ofequal employment opportunities and otherwise adversely affect his status as an employee because of his religion, Christian (Living Church of God). 13. The unlawful employment actions complained of in paragraph 11 above were intentional. 14. The unlawful employment actions complained of in paragraph 11 above were done with malice or with reckless indifference to the federally protected rights ofPlaintiff~Intervenor Wise. 15. Due to the actions of the Defendants, Plaintiff-Intervenor lost wages and benefits and underwent emotional distress, humiliation, emban'assment and emotional distress. 16. Plaintiff¥Intervenor Wise is entitled to recover punitive damages from the Defendants. WHEREFORE, Plaintiff-Intervenor respectfully prays that this Court: A. Grant a permanent injunction enjoining the Defendants, their officers, successors, assigns and all persons in active concert or participation with them, from discriminating against current or future employees based on their religious beliefs;
4

B. Order Defendants to institute and carry out policies, practices and programs which provide equal employment oppoliunities for employees who require religious accommodations for their sincerely held religious belief's, and which eradicate the effects of its past and present unlawful employment practices; C Order Defendants, jointly and severally, to make whole Plaintiff-Intervenor by providing appropriate back pay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices described in paragraph 11 above, including but not limited to reinstatement or front pay; D. Order Defendants, jointly and severally, to make whole Plaintiff-Intervenor by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described above, including but not limited to medical expenses and job search expenses, in amounts to be determined at trial; E. Order Defendants to make whole Plaintiff-Intervenor providing Plaintiff-Intervenor compensation for all past and future non-pecuniary losses resulting from the unlawful employment practices described in paragraph 11 above, including but not limited to emotional pain, suffering, inconvenience, loss of civil rights, Joss of enjoyment of life, and humiliation, in amounts to be determined at trial; F. Order Defendants, jointly and severally, to pay to Plaintiff-Intervenor punitive damages for their malicious and reckless conduct as described in paragraph 11 above in amounts to be determined at trial by the jury; G. Tax the costs of this action, including reasonable attorney fees and expenses, against the Defendants; and
5

H. Grant such further relief as the Court deems necessary and proper.
This the 2;l.day of November 2004.
/
,~.~ p;~~
Vicki Brown Rowan State Bar No. 14294 1515 Mockingbird Lane Suite 400 Charlotte, NC 28209 (704) 525-4110
Attomey for Plaintiff..Intervenor Wise
PLAINTIFF-INTERVENOR DEMANDS TRIAL BY JURY OF ALL ISSUES OF FACT
CERTIFICATE OF SERVICE
I hereby certify that on November ~,2004, I have served the foregoing document on all parties separately represented by mailing a copy by first-class mail to their attomeys at the following addresses:
Ms. Kara Haden Equal Employment Opportunity Commission 129 W. Trade Street, Suite 400 Charlotte, NC 28202
H. Bernard Tisdale III Ogletree, Deakins, Nash, Smoak & Stewart, PC P.O. Box 2757 Greenville, SC 29602
~RjJ lcki B. Rowan Attomey for Plaintiff-Intervenor David Wise State Bar No. 14294 1515 Mockingbird Lane, Suite 400 Charlotte, NC 28209 (704) 525·4110
6

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION CIVIL ACTION NO: 3:04CV467

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

Plaintiff,

)

)

and

)

)

DAVID WISE,

)

Plaintiff-Intervenor,

)

)

vs.

)

)

FIRESTONE FIBERS & TEXTILES CO.,

)

et al.,

)

Defendants.

)

__________________________________________)

ORDER

THIS MATTER IS BEFORE THE COURT on the “Joint Objection of Plaintiff and

Plaintiff-Intervenor ..., Motion for Protection and Memorandum in Support Thereof” (“Motion for

Protective Order”) (Document No. 15), filed April 15, 2005 by the United States Equal Opportunity

Employment Commission and David Wise; and the “Defendants’ Response to Joint Objection ...”

(Document No. 16), filed May 2, 2005 by Firestone Fibers & Textiles Company, et al. For the

reasons set forth during the hearing held before the undersigned on Tuesday, October 11, 2005, the

Court will grant in part and deny in part the Motion for Protective Order.

IT IS, THEREFORE, ORDERED that the “Joint Objection of Plaintiff and Plaintiff-

Intervenor ..., Motion for Protection and Memorandum in Support Thereof” (Document No. 15) is

GRANTED IN PART and DENIED IN PART; that is, subject to the time constraints agreed upon

during the hearing, discovery of any medical records related to Mr. Wise’s mental health is

permitted, but discovery of any medical records related to Mr. Wise’s physical ailments is, at this

time, prohibited.

Signed: October 12, 2005

 
 E.E.O.C. v. Firestone Fibers & Textiles Co., Not Reported in F.Supp.2d (2006)

2006 WL 2620314 United States District Court,
W.D. North Carolina.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, and
David Wise, Plaintiff-Intervenor v.
FIRESTONE FIBERS & TEXTILES COMPANY, A Division of BFS Diversified Products, LLC, BFS Diversified Products, LLC, and Bridgestone Americas Holding, Inc., Defendant.
No. 3:04-CV-00467. | Sept. 13, 2006.
Attorneys and Law Firms
Kara Gibbon Haden, Lynette A. Barnes, Equal Employment Opportunity Commission, Charlotte District Office, Charlotte, NC, for Plaintiff.
Vicki Brown Rowan, Attorney at Law, Charlotte, NC, for Plaintiff-Intervenor.
Homer Bernard Tisdale, III, Ogletree, Deakins, Nash, Smoak & Stewart, Greenville, SC, James B. Spears, Jr., Ogletree, Deakins, Nash, Smoak & Stewart, PC, Charlotte, NC, for Defendants.
Opinion
MEMORANDUM AND ORDER
ROBERT J. CONRAD, JR., District Judge.
*1 In this civil action for injunctive and monetary relief pursuant to Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991, Plaintiffs EEOC and David Wise (“Wise”) assert that Defendant Firestone Fibers & Textile Company (“Firestone”) and Defendant Bridgestone Americas Holding, Inc. violated Title VII of the Civil Rights Act of 1964, by terminating Wise rather than reasonably accommodating his religious needs (Doc. No. 1: Complaint at ¶¶ 10-14). This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1337, 1343 and 1345.
Presently before the Court is the defendants’ motion for summary judgment (Doc. No. 18), and the response and reply briefs of the parties. Having considered the arguments set forth in the motion and responsive pleadings, as well as the affidavits, depositions and other evidence, the Court will Grant the defendant’s motion.

Taking the evidence in a light most favorable to the defendant, the Court finds first that Bridgestone Americas Holding, Inc. should be dismissed. It is a separate corporation which was not identified as a respondent in the original charge. The plaintiff is precluded from stating a claim against a defendant not named as a respondent in an EEOC charge. 42 U.S.C. § 2000e-5(f)(1). Second, as to the merits, the Court finds that Firestone’s efforts constitute reasonable accommodation of Wise’s religious needs. Firestone was not required to provide absolute accommodation, only a reasonable one. Here it made significant efforts including but not limited to entering into a collective bargaining agreement (“CBA”) with the United Steel Workers Union (“Union”) in which was provided a neutral seniority system seeking accommodation of the religious and secular needs of employees as well as programs of annual leave, flexible holidays and shift-swapping. The fact that such accommodation failed to provide absolute resolution of the conflict is of no moment especially where as here, the plaintiff failed to take full advantage of the potential shift-swapping opportunities made available to him. The Court finds alternatively that to the extent Firestone did not accommodate the plaintiff, its failure was legally excused by the undo burden such accommodation would create. An agreed upon seniority system and shift-swapping program are significant accommodations. Firestone should not be required to deny the shift and job preferences of some employees to accommodate the religious observances of the plaintiff. Such a requirement would constitute an imposition on co-workers, a violation of the CBA, and the cost of such effort would be more than de minimis.
FACTUAL SUMMARY
A. Firestone’s Operation Firestone maintains facilities in Kings Mountain and Gastonia, North Carolina. Employees are represented by a Union and the employer/employee relationship is governed by a CBA between Firestone and the Union. The CBA contains provisions governing employee vacations, holidays, leaves of absence, overtime, and seniority preferences including job transfers and shift changes. In case of layoffs, the CBA provides that employees lower in seniority will be “displaced” first.
*2 Wise and all employees of his seniority working eight hour days were entitled to one-hundred and twenty hours of vacation, thirty-two hours of floating holidays (that had to be taken in full shifts), and sixty hours of unpaid leave pursuant to a “no-fault” attendance policy. Employees
1

E.E.O.C. v. Firestone Fibers & Textiles Co., Not Reported in F.Supp.2d (2006)

were permitted to take three half-days of vacation so long as their accumulated absences under the no-fault attendance policy did not exceed thirty-six hours. Wise was discharged in September 2002 for being absent from work for more than sixty hours in a twelve month period.
B. Wise’s Faith and Employment at Firestone Wise is a member of the Living Church of God, a Christian organization that believes in keeping the Old Testament laws, including observing the Sabbath day from sundown on Friday to sundown on Saturday, the High Holy days including the Day of Atonement, and the Feast of Tabernacles in the fall. Wise describes himself as a “Sabbath keeper.” It is a tenant of Wise’s faith that failure to observe Sabbath and Holy Day obligations would subject him to damnation in “the lake of fire.”
Wise was hired in 1994 and usually worked the day shift until February 2002, at which time Firestone laid off approximately eighty employees based upon seniority. During layoffs, employees were given “bumping rights” wherein more senior employees were permitted to “bump” other employees out of desired positions. Wise had the least amount of seniority in the lab (Doc. No. 20: Appx. 10, Wise TR at 77), thus eventually causing his replacement by a more senior employee and preventing him from transferring shifts pursuant to the seniority system in the CBA.
During the February 2002 layoff, a senior employee bumped Wise from his position. Around the same time as the layoff, Firestone reconfigured its shifts from twelve hour shifts to eight hour shifts: the “E” shift worked from 7:00 am to 3:00 pm, the “F” shift worked from 3:00 pm to 11:00 pm, and the “G” shift worked from 11:00 pm to 7:00 am. As a result, Wise worked an eight hour shift “F” position, from 3:00 pm to 11:00 pm. He quickly realized that he would use up his sixty hours unpaid leave, so he approached his supervisor, Kevin Cash, in February 2002 about obtaining an accommodation for observance of the Sabbath. Wise and Cash discussed his request with Human Resource Manager, Dennis Jozwiakowski, who reviewed Wise’s seniority status to determine if he could be moved to another job or shift. The only shift that would have accommodated Wise was the Monday through Friday day shift from 7:00 am to 3:00 pm, which was the most desired shift. Wise did not have the requisite seniority for such a move without forcing Firestone to breach the seniority provision of the CBA, nor did he have the appropriate skill set to transfer into other open positions. As a result of his investigations, Jozwiakowski said that Wise would have to use his floating holidays, vacation days, and the sixty hours leave to cover any absences. Cash also made additional efforts to accommodate Wise by permitting him to take additional vacation in half-day segments without eating away his

sixty hours of leave.
*3 On April 25, 2002, Cash advised Wise that he had used twenty-four of the sixty no-fault attendance hours, on July 23, 2002 that he had exceeded thirty-six hours, and on September 18, 2002 that he exceeded forty-eight hours. On September 3, 2002, Wise requested an unpaid leave of absence for religious observance for the Day of Atonement (September 16th) and the Feast of Tabernacles (September 20th-29th). Jozwiakowski and Employee Relations Manager, Tom Kirksey, reviewed the request and options available to accommodate Wise. As with Wise’s Sabbath request, the absence would force other employees to work overtime. They informed Wise that he could use his remaining leave, but otherwise denied his request for an additional unpaid leave of absence.
Knowing his request had been denied, and knowing that he did not have enough leave time remaining, Wise did not come to work on the days requested. On September 20, 2002, Wise missed his sixty-first hour of work, and his termination occurred shortly thereafter.
ANALYSIS
A motion for summary judgment shall not be granted unless the Court determines that there is no genuine issue of material fact to be tried. Fed.R.Civ.P. 56(c). In making that determination, the Court is to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505 (1986). The nonmoving party must present sufficient evidence from which “a reasonable jury could return a verdict for the nonmoving party.” Id. at 248.
A. Religious Discrimination under Title VII In order to prove discrimination in a religious accommodation case, Wise must employ the burden-shifting proof-scheme first articulated in McDonnell Douglas Corp v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). The elements of a prima facie religious accommodation claim are (1) the plaintiff has a bona fide religious belief that conflicts with the employment requirement, (2) that he or she informed the employer of this belief, and (3) that he or she was disciplined for failure to comply with a conflicting employment requirement. Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1019 (4th Cir., 1996). “If the employee establishes a prima facie case, the burden then shifts to the employer to show that it could not accommodate the plaintiff’s religious needs without undue hardship.” Id.
2

E.E.O.C. v. Firestone Fibers & Textiles Co., Not Reported in F.Supp.2d (2006)

For purposes of this motion for summary judgment, Firestone concedes that Wise has established a prima facia case of religious discrimination. Accordingly, the burden shifts to Firestone to show that it either provided reasonable accommodation or could not accommodate Wise’s religious beliefs without undue hardship. The Court finds that Firestone has sufficiently shown that it provided reasonable accommodation for Wise’s religious beliefs.
B. Title VII’s Requirement For Reasonable Religious Accommodation Title VII’s central provisions make it an unlawful employment practice for an employer “... to discriminate against any individual with respect to his ... religion ...”, § 703(a)(1), 42 U.S.C. § 2000e-2(a)(1). “The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” § 701(j), 42 U.S.C. § 2000e(j). (Emphasis added).
*4 As stated by the Supreme Court in Ansonia Board of Education v. Philbrook, “[w]e find no basis in either the statue or its legislative history for requiring an employer to choose any particular reasonable accommodation. By its very terms the statute directs that any reasonable accommodation by the employer is sufficient to meet its accommodation obligations.” 479 U.S. 60, 68, 107 S.Ct. 367 (1986). If an employer has provided a reasonable accommodation, there is no need to determine whether there is an undue hardship on the employer. Id. at 69.
The United States Supreme Court has found employers’ pre-existing policies to constitute reasonable religious accommodation. See e.g. TransWorld Airlines v. Hardison, 432 U.S. 63, 97 S.Ct. 2264 (1977) and Philbrook, 479 U.S. 60 (1986). The EEOC Guidelines on Discrimination Because of Religion, 29 C.F.R. § 1605.2 (2006) provides examples of institutional policies that constitute a reasonable accommodation, such as shift-swapping and floating holidays. 29 C.F.R § 1605.2(d)(i) and (ii).
Here, Firestone established policies that the Court finds reasonable. First, Firestone’s seniority system is a reasonable accommodation. In Hardison, the Supreme Court held that the pre-existing seniority system itself constituted a reasonable accommodation: “it appears to us that the system itself represented a significant accommodation to the needs, both religious and secular, of all of TWA’s employees.” 432 U.S. at 78. The fact that Wise does not currently benefit from the seniority system does not negate the reasonableness of the accommodation.

Second, the Supreme Court specifically held in Philbrook that a school board’s unpaid leave policy for holy day observances that exceeded the amount allowed by the CBA would generally be a reasonable accommodation. Id. at 70. Likewise, Firestone’s unpaid leave policy of up to sixty hours is, in itself, a reasonable accommodation.
Third, allowance of shift-swapping can constitute a reasonable accommodation. See Miller v. Drennon, 966 F.2d 1443, 1992 WL 137578, at *3 (4th Cir. Jun 19, 1992) (per curium (unpublished table decision) (citing Brener v. Diagnostic Ctr. Hosp., 671 F.2d 141 (5th Cir.1982)) (a hospital’s allowing pharmacists to trade shifts was a reasonable accommodation); see also United States v. City of Albuquerque, 545 F.2d 110 (10th Cir.1976) (allowing firefighters to avoid objectionable shifts by taking vacation leave, unpaid leave, and by voluntarily trading shifts was found to be a reasonable accommodation). Additionally, 29 C.F.R. § 2605.2(d)(1)(I) provides in part, “Reasonable accommodations without undue hardship is generally possible where a voluntary substitute with substantially similar qualifications is available. One means of substitution is the voluntary swap.” Here, there is a factual dispute as to whether Cash took additional efforts to find other employees to swap shifts with Wise, but there is no evidence that shift-swapping was discouraged in any way. The Supreme Court has also recognized the importance of “bilateral cooperation” on behalf of the employee. Philbrook, 479 U.S. at 69, (citing to Brener v. Diagnostic Center Hospital, 671 F.2d 141, 146 (5th Cir .1982) and American Postal Workers Union v. Postmaster General, 781, F.2d 772, 776 (9th Cir.1986)). Specifically addressing shift-swapping policies, the oft-cited Brener case provides, “Although the statutory burden to accommodate rests with the employer, the employee has a correlative duty to make a good faith attempt to satisfy his needs through means offered by the employee.” Brener, 671 F.2d at 146. Wise stated in his deposition that after beginning his new shift around February of 2002, he did not attempt to use the shift-swapping policy. An employer can not be expected to provide additional accommodations for employees when the pre-existing accommodations are ignored. Title VII simply does not bestow upon the employee a right to accommodation shop; he must first use the means available to the best of his ability.
*5 Fourth, Firestone provides its eight hour shift employees with three floating holidays. The CBA contains no restrictions on the purpose for which these holidays can be taken. The EEOC Guideline, 29 C.F.R. § 2605.2(d)(1)(2), provides numerous examples of how flexible scheduling can constitute a reasonable accommodation, among which is floating or optional holidays. Here, Wise used his three floating holidays after specifically being informed by Jozwiakowski and Cash
3

E.E.O.C. v. Firestone Fibers & Textiles Co., Not Reported in F.Supp.2d (2006)

that floating holidays could be used for religious observances.
Plaintiffs’ core argument, that Firestone is required to eliminate the conflict unless an undue burden prevents it from doing so, is untenable. The Fourth Circuit has held that an employer “is not required to provide absolute accommodation, only a ‘reasonable accommodation.’ “ Miller, 1992 WL 137578, at *3 (citing Philbrook 479 U.S. at 69). See also Philbrook 479 U.S. at 70. In the context of an employment relationship controlled by a CBA-provided neutral system of seniority, the Supreme Court has refused to require that such a system give way to the religious needs of an employee:
Collective bargaining, aimed at effecting workable and enforceable agreements between management and labor, lies at the core of our national labor policy, and seniority provisions are universally included in these contracts. Without a clear and express indication from Congress, we cannot agree with Hardison and the EEOC (the plaintiffs) that an agreed-upon seniority system must give way when necessary to accommodate religious observances.
Hardison, 432 U.S. at 79.
Plaintiff argues that the Supreme Court in Philbrook mandated that a reasonable accommodation must totally eliminate the conflict. (Doc. No. 22: Plaintiff Memo. at 9). This argument misreads Philbrook. There the Court found factually that “[t]he provision of unpaid leave,” i.e., the particular policy in the Philbrook case, “eliminates the conflict....” Philbrook 479 U.S. at 70. The Court also found that in enacting § 701(j), Congress “did not impose a duty on the employer to accommodate at all costs.” Id. Firestone’s pre-existing policies of a seniority system, unpaid leave program, shift-swapping and floating holidays combine to constitute reasonable accommodations, even though the conflict was not eliminated.
The EEOC’s subordinate argument is equally unavailing. It interprets Cooper v. Oak Rubber Co., 15 F.3d 1375 (6th Cir.1994) to hold that use of vacation time to resolve a conflict is not reasonable. Cooper merely held that accrued vacation time alone is an insufficient accommodation. Use of accrued vacation time in conjunction with other accommodations would not run afoul of Cooper. If Cooper could be read to bar use of vacation time per se, it is not controlling authority; and to the extent that it is inconsistent with the holdings of the Supreme Court in Hardison and Philbrook, it is not

persuasive either.
*6 A reasonable accommodation by pre-existing policy pursuant to the CBA is present in this case. The Court finds that Firestone went beyond mere reliance on the CBA which provided for three half-day vacations so long as the absences were under thirty-six hours of no-fault attendance. In an attempt to accommodate the plaintiff, his supervisor Cash permitted Wise to take five extra half-day vacations. Additionally, Firestone paid overtime to other employees who covered Wise’s shift.
D. Undue Hardship Plaintiffs’ insistence on absolute accommodation misreads the law and places on the employer an undue burden. It arguably requires either a shift preference in violation of the CBA, or the cost of replacement for the Sabbath and Holy Day hours. An employer is not required to violate a seniority preference system to accommodate the religious needs of an individual. On the contrary, a seniority system was recognized as a reasonable accommodation itself. Hardison, 432 U.S. at 78. To grant Wise a shift preference would thus create an undue burden on the company and other employees by bumping an employee who enjoys his rights earned within the seniority system. To this extent it represents an “over-accommodation” arguably violative of the rights of other employees.
Second, to grant Wise extra leave of absence time beyond the sixty hours given to other employees of his status could constitute religious discrimination in favor of Wise and against others. “We will not readily construe the statute to require an employer to discriminate against some employees in order to enable others to observe their Sabbath.” Hardison, 432 U.S. at 85.
Last, hiring replacement employees at overtime rates constitutes an undue hardship in that it results in more than a de minimis cost to the employer. Hardison, 432 U.S. at 84. “De minimis cost” is defined as “costs similar to the regular payment of premium wages of substitute....” 29 C.F.R § 1605.2(e)(1) (citing to Hardison, 432 U.S. at 84).
Accordingly, complete resolution of the conflict between Wise and Firestone would inevitably result in an undue hardship beyond the requirements of Title VII.
CONCLUSION
The plaintiffs prima facie case of discrimination has been rebutted by Firestone. Because no reasonable juror could
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E.E.O.C. v. Firestone Fibers & Textiles Co., Not Reported in F.Supp.2d (2006)

conclude that Firestone did not provide reasonable accommodation for Wise’s religious observances in accordance with Title VII requirements, the Court grants summary judgment for the defendant.
THEREFORE, IT IS ORDERED that Bridgestone Americas Holding, Inc., is dismissed and FURTHER ORDERED that Firestone’s motion for summary judgment (Doc. No. 18) is GRANTED. This matter is

dismissed with prejudice in its entirety.
Parallel Citations 88 Empl. Prac. Dec. P 42,607
	  

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APPEAL, CASREF, REFUSE
U.S. District Court Western District of North Carolina (Charlotte) CIVIL DOCKET FOR CASE #: 3:04-cv-00467-RJC-DCK

EEOC v. Firestone Fibers, et al Assigned to: Robert J. Conrad, Jr Referred to: David Keesler Demand: $0 Case in other court: USCA, 06-02203
Fourth Circuit Court of Appeals, 06-02241 Cause: 28:451 Employment Discrimination

Date Filed: 09/09/2004 Date Terminated: 09/13/2006 Jury Demand: y Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Kara Gibbon Haden Equal Employment Opportunity Commission Charlotte District Office 129 West Trade Street, Suite 400 Charlotte, NC 28202 704.344.6887 Fax: 704.344.6780 Email: kara.haden@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Plaintiff David Wise

Lynette A. Barnes Equal Employment Opportunity Commission Charlotte District Office 129 W. Trade Street, Suite 400 Charlotte, NC 28202 704.344.6878 Fax: 704.344.6780 Email: lynette.barnes@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Vicki Brown Rowan Attorney at Law 1515 Mockingbird Lane Suite 400 Charlotte, NC 28209 704-525-4110 Fax: 704-525-4301 Email: VBRowan@bellsouth.net

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V. Defendant Firestone Fibers & Textiles Company, a Division of BFS Diversified Products
Defendant BFS Diversified Products, LLC
Defendant Bridgestone Americas Holding, Inc.

https://ecf.ncwd.uscourts.gov/cgi-bin/DktRpt.pl?101481373373798-L_...
LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Homer Bernard Tisdale, III Ogletree, Deakins, Nash, Smoak & Stewart Charlotte Plaza 201 South College Street Suite 2300 Charlotte, NC 28244 704-342-2588 Fax: 704-342-4379 Email: tisdalhb@odnss.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
James B. Spears, Jr Ogletree, Deakins, Nash, Smoak & Stewart, PC Charlotte Plaza 201 South College Street Suite 2300 Charlotte, NC 28244 704-342-2588 Fax: 704-342-4379 Email: jim.spears@ogletreedeakins.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Homer Bernard Tisdale, III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James B. Spears, Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Homer Bernard Tisdale, III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Intervenor Defendant Firestone Fibers & Textiles Company, a Division of BFS Diversified Products
Intervenor Defendant BFS Diversified Products, LLC
Intervenor Defendant Bridgestone Americas Holding, Inc.
Movant David Wise

James B. Spears, Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Homer Bernard Tisdale, III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James B. Spears, Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Homer Bernard Tisdale, III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James B. Spears, Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Homer Bernard Tisdale, III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James B. Spears, Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Vicki Brown Rowan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/09/2004

#

Docket Text

1 COMPLAINT and Jury Trial Demand. (lhg) (Entered: 09/09/2004)

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09/16/2004 10/21/2004 11/15/2004 11/16/2004 11/16/2004 11/16/2004 12/17/2004 12/17/2004 01/07/2005 01/18/2005 01/18/2005 01/26/2005 03/24/2005 04/15/2005 05/02/2005 05/12/2005
06/16/2005

2 CONSENT/REFUSAL to Magistrate Jurisdiction by EEOC - consent (former emp) (Entered: 09/17/2004)
3 WAIVER OF SERVICE Returned Executed as to BFS Diversified 9/16/04 Answer due on 11/15/04 for BFS Diversified (former emp) (Entered: 10/21/2004)
4 MOTION to Intervene by David Wise (bsw) (Entered: 11/16/2004)
5 ANSWER to Complaint by Firestone Fibers, BFS Diversified, Bridgestone Amer Hol (ejb) (Entered: 11/16/2004)
6 CONSENT/REFUSAL to Magistrate Jurisdiction by Firestone Fibers, BFS Diversified, Bridgestone Amer Hol - Refusal (ejb) (Entered: 11/16/2004)
7 CASE reassigned to Judge Graham C. Mullen - notice of reassignment mailed to parties. (ejb) (Entered: 11/16/2004)
8 ORDER granting [4-1] motion to Intervene by David Wise ( signed by Magistrate Judge Carl Horn III ) [EOD DATE: 12/21/04] (former emp) (Entered: 12/21/2004)
9 Intervenor's COMPLAINT by David Wise against Firestone Fibers, BFS Diversified, Bridgestone Amer Hol (former emp) (Entered: 12/21/2004)
10 ANSWER by Firestone Fibers, BFS Diversified, Bridgestone Amer Hol to [9-1] intervenor complaint; w/cs cc: GCM (cbb) (Entered: 01/12/2005)
11 Certificate of I.A.C. and Discovery Plan by plaintiff EEOC, defendant Firestone Fibers, defendant BFS Diversified, defendant Bridgestone Amer Hol, movant David Wise (former emp) (Entered: 01/21/2005)
12 Disclosure of Corporate Affiliations other entities with a direct financial interest in litigation by Firestone Fibers, BFS Diversified, Bridgestone Amer Hol (former emp) (Entered: 01/21/2005)
13 INITIAL PRETRIAL ORDER Discovery deadline is 6/30/05 Motion filing deadline is 8/1/05 Jury Trial set for 10:00 3/6/06 before Judge Graham C. Mullen ( signed by Judge Graham C. Mullen ) (tme) (Entered: 01/26/2005)
14 Amd Certificate of I.A.C. and Discovery Plan by plaintiff EEOC, defendant Firestone Fibers, defendant BFS Diversified, defendant Bridgestone Amer Hol, movant David Wise (bsw) (Entered: 03/29/2005)
15 MOTION & memo in suppt by EEOC, David Wise for Protective Order (dcap) (Entered: 04/15/2005)
16 RESPONSE to Motion re 15 Motion for Protective Order filed by Firestone Fibers & Textiles Company, a Division of BFS Diversified Products. (Cochran, Candace) (Entered: 05/03/2005)
17 NOTICE of intent not to file reply by Equal Employment Opportunity Commission, David Wise re 15 Motion for Protective Order filed by Equal Employment Opportunity Commission, David Wise. (Wallace, Betsy) (Entered: 05/17/2005)
Case reassigned to Judge Robert J. Conrad, Jr. Judge Graham Mullen no longer assigned to the case. (Wallace, Betsy) (Entered: 06/16/2005)

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08/01/2005 08/01/2005
08/01/2005
08/01/2005 08/11/2005
08/19/2005 08/19/2005 08/26/2005 08/29/2005 08/31/2005 09/08/2005
10/03/2005 10/11/2005

18 MOTION for Summary Judgment by Firestone Fibers & Textiles Company, a Division of BFS Diversified Products, Bridgestone Americas Holding, Inc.. (Wallace, Betsy) (Entered: 08/03/2005)
19 MEMORANDUM in Support re 18 MOTION for Summary Judgment filed by Firestone Fibers & Textiles Company, a Division of BFS Diversified Products, BFS Diversified Products, LLC, Bridgestone Americas Holding, Inc.. (Wallace, Betsy) (Entered: 08/03/2005)
20 Appendix by Firestone Fibers & Textiles Company, a Division of BFS Diversified Products, BFS Diversified Products, LLC, Bridgestone Americas Holding, Inc.. (complete appendix not scanned - see case file) (Attachments: # 1 Appendix - Part 2)(Wallace, Betsy) (Entered: 08/03/2005)
Motions No Longer Referred: 18 MOTION for Summary Judgment (Wallace, Betsy) (Entered: 07/17/2006)
21 MOTION for Extension of Time to File Response/Reply to 8/22/05 as to 18 MOTION for Summary Judgment by Equal Employment Opportunity Commission, David Wise. Responses due by 8/25/2005 (Attachments: # 1 Text of Proposed Order)(Evans, Tammy) (Entered: 08/15/2005)
22 RESPONSE to Motion re 18 MOTION for Summary Judgment filed by David Wise. (Attachments: # 1 Exhibit # 2 Exhibit)(Cochran, Candace) (Entered: 08/24/2005)
23 MEMORANDUM in Opposition re 18 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (Huntley, Cynthia) (Entered: 08/26/2005)
CASE REFERRED to Magistrate Judge David Keesler. (Wallace, Betsy) (Entered: 08/26/2005)
24 REPLY to Response to Motion re 18 MOTION for Summary Judgment filed by Firestone Fibers & Textiles Company, a Division of BFS Diversified Products. (Cochran, Candace) (Entered: 08/31/2005)
25 ORDER granting 21 Motion for Extension of Time to File Response/Reply re 18 MOTION for Summary Judgment Responses due by 8/22/2005. Signed by Judge David Keesler on 8/31/05. (Wallace, Betsy) (Entered: 09/01/2005)
26 ORDER, Set/Reset Deadlines as to 15 Motion for Protective Order. Motion Hearing set for 10/11/2005 11:00 AM in Charlotte Magistrate Courtroom before David Keesler.. Signed by Judge David Keesler on 9/8/05. (Huntley, Cynthia) (Entered: 09/09/2005)
27 NOTICE of Hearing on Motion 15 Motion for Protective Order: Motion Hearing set for 10/11/2005 09:30 AM in Courtroom #1, 401 W. Trade St., Charlotte, NC 28202 before David Keesler. (Anderton, Michelle) (Entered: 10/03/2005)
Minute Entry for proceedings held before Judge David Keesler : Motion Hearing held on 10/11/2005 re 15 Motion for Protective Order filed by Equal Employment Opportunity Commission,, David Wise,. (Court Reporter Betty Brown w/Huesby.) (Anderton, Michelle) (Entered: 10/11/2005)

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10/12/2005 01/30/2006 02/03/2006 09/13/2006 09/13/2006 11/09/2006 11/09/2006 11/14/2006 11/14/2006 11/22/2006 11/27/2006 11/27/2006 11/29/2006 11/29/2006
12/13/2006 12/28/2006

28 ORDER granting in part and denying in part 15 Motion for Protective Order . Signed by Judge David Keesler on 10/12/05. (MacEwan, Cathy) (Entered: 10/12/2005)
Proposed document submitted to Judge Robert Conrad. (Tisdale, Homer) (Entered: 01/30/2006)
29 ORDER suspending deadlines contained in the scheduling order. Trial deadline terminated.. Signed by Judge Robert J. Conrad Jr. on 2/3/06. (Huntley, Cynthia) (Entered: 02/03/2006)
30 ORDER granting 18 Motion for Summary Judgment and dismissing Bridgestone Americas Holding, Inc.. Signed by Judge Robert J. Conrad Jr on 9/13/06. (chh) (Entered: 09/13/2006)
31 CLERK'S JUDGMENT entered in accordance with the Court's September 13, 2006 Order. Signed on 9/13/06. (chh) (Entered: 09/13/2006)
32 NOTICE OF APPEAL by Equal Employment Opportunity Commission. (Haden, Kara) (Entered: 11/09/2006)
33 Transmission of Notice of Appeal to US Court of Appeals re 32 Notice of Appeal (smj) (Entered: 11/09/2006)
34 USCA Case Number 06-2203 for 32 Notice of Appeal. USCA Case Manager: Lisa Jernigan. (com) (Entered: 11/21/2006)
35 Docketed on wrong docket - ORDER of USCA (com) Modified on 12/13/2006 (Wallace, Betsy). (Entered: 11/21/2006)
36 Subsequent NOTICE OF APPEAL as to 31 Clerk's Judgment, 30 Order on Motion for Summary Judgment by David Wise. Filing fee $ 455, receipt number 264976. (Rowan, Vicki) (Entered: 11/22/2006)
37 Transmission of Notice of Appeal to US Court of Appeals re 36 Subsequent Notice of Appeal (smj) (Entered: 11/27/2006)
Assembled Electronic Record Transmitted to Fourth Circuit. Original. (bsw) (Entered: 11/27/2006)
38 USCA Case Number 06-2241 for 36 Subsequent Notice of Appeal USCA Case Manager: Lisa Jernigan. (cbb) (Entered: 11/29/2006)
39 ORDER of USCA as to 32 Notice of Appeal, 36 Subsequent Notice of Appeal consolidating cases 06-2203 and 06-2241 for purposes of briefing and oral argument and adopts for these appeals the briefing order previously filed in 06-2203 dated 11/21/06 (cbb) (Entered: 11/29/2006)
NOTICE of ECF Filing Error re: 35 Order - USCA Docketed on wrong case in error NO ACTION REQUIRED - FOR INFORMATIONAL PURPOSES ONLY. (bsw) (Entered: 12/13/2006)
40 NOTICE of Change of Address by Homer Bernard Tisdale, III (Tisdale, Homer) (Entered: 12/28/2006)

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