UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

" R-,’:P ";9

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Plaintiff,
Vo

-4 Honorable SWene~io.dr,e]Ul .AS..NDiilest~rict ,Judge

ROBERT BOSCH CORPORATION

COMPLAINT AND JURY DEMAND

Defendant. /

NATURE OF TIlE 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 bases of religion, and to

provide appropriate relief to Jeff Carter who was adversely affected by such practices. The

United States Equal Employment Opportunity Commission (hereinafter "EEOC") alleges that Robert Bosch Corporation (hereinafter "Defendant") failed to provide a reasonable

accommodation to the known religious practices of Carter, who is a member of the International Old Path Church of God Inc. The Defendant unlawfully terminated Carter because his religious practices conflicted with an employment requirement.

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)

and 707(e) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f)(1) and (3) and § 2000e-6(e) ("Title VII"), and Section 102 of the Civil Rights Act of 1991, 42

1

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 Michigan, Southern Division.
PARTIES 3. Plaintiff, EEOC 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(f)(1) and (3) and 707(e) of Title VII, 42 U.S.C. § 2000e-5(f)(1) and (3) and § 2000e-6(e). 4. At all relevant times, Defendant has continuously been a corporation doing business in the State of Michigan, and has continuously had at least 15 employees. 5. At all relevant times, Defendant 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 6. More than thirty days before the institution of this lawsuit, Carter filed a Charge of Discrimination with the Commission alleging violations of Title VII by the Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Since at least February, 2002, Defendant Employer has engaged in unlawful employment practices at its Saint Joseph, Michigan facility, in violation of Section 703(a), 42 U.S.C. § 2000e-2(a), and Section 704(a), 42 U.S.C. § 2000e-3(a). The Defendant’s unlawful employment practices include the unlawful failure to provide a reasonable accommodation to the known sincerely-held religious beliefs of Carter, to wit: the belief that he should not work on
2

from sundown Friday to sundown Saturday. Such unlawful employment practices also include terminating Carter because his sincerely-held religious belief conflicted with an employment requirement.
8. The effect of the practices complained of in paragraph 7 above have been to deprive Carter of equal employment opportunities and otherwise adversely affect his status as an employee because of his religion, membership in the International Old Path Church of God Inc.
The unlawful employment practices complained of in paragraph 7 above were intentional.
10. As the result of the unlawful employment practices, Carter has suffered emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life.
11. The unlawful employment practices complained of in paragraph 7 above were and are done with malice or with reckless indifference to the federally protected fights of Carter.
PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant Employer, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in any employment practice which discriminates on the basis of religion. B. Order Defendant Employer to institute and carry out policies, practices, and programs which provide equal employment opportunities for persons of all religions, and which eradicate the effects of its past and present unlawful employment practices. C. Order Defendant to implement effective religious accommodation and antiharassment policies and distribute information about these policies to its employees. D. Order the Defendant Employer to make whole Carter, by providing appropriate
3

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.
E. Order Defendant Employer to make whole Carter by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraphs 7 and 8 above in amounts to be proven at trial.
F. Order Defendant Employer to make whole Carter by providing compensation for past non-pecuniary losses resulting from the unlawful practices complained of in paragraphs 7 and 8 above in amounts to be proven at trial.
G. Order Defendant Employer to pay Carter punitive damages for its malicious or reckless conduct described in paragraphs 7 and 8 above, in amounts to be proven at trial.
H. Order Defendant Employer to provide training to its supervisors and mangers of their obligations under Title VII to provide religious accommodations and to prevent religious harassment.
I. Grant such further relief as the Court deems necessary and proper in the public interest.
J. 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. Respectfully submitted, ERIC S. DREIBAND General Counsel JAMES L. LEE Deputy General Counsel
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GWENDOLYN YOUNG REAMS Associate General Counsel
OFFICE OF GENERAL COUNSEL Trial Services Division 1801 "L" Street, N.W. Washington, D.C. 20507
ADELE RAPPORT (P~833) Regional Attorney
STANLEY H. PITTS (P33519) Supervisory Trial Attorney
OMAR WEAVER (P58861) Trial Attorney
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION DETROIT DISTRICT OFFICE Patrick V. McNamara Bldg. 477 Michigan Avenue, Rm. 865 Detroit, Michigan 48226 Telephone: 313/226-3407

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
JEFF L. CARTER, Applicant for Intervention,
VS
ROBERT BOSCH CORPORATION, Defendant.

Case No.: 5:03CV0150 Honorable Wendell A. Miles

INTERVENOR’S COMPLAINT AND JURY DEMAND
NOW COMES Jeff L. Carter and for his cause of action against the Defendant alleges as follows:
The Nature of the Action 1. This is an action seeking redress for discrimination in employment based on
religion as prohibited by Title VII of the civil Rights Act of 1964 as amended, 42 U.S.C. 2000e et se~ ("Title VII").
The Parties 2. Intervenor-Plaintiff, Jeff L. Carter (Intervenor-Plaintiff), is a citizen of the United
States of America and a resident of the State of Michigan. 3. Defendant, Robert Bosch Corporation (Defendant), is a Michigan corporation
doing business in the State of Michigan. Defendant is an employer engaged in an industry

affecting commerce, employing at least fifteen (15) or more employees for each working day in each of twenty (20) or more calendar weeks in the current or preceding calendar year, and is and has at all pertinent times, been engaged in commerce and the production of goods, services and business for commerce within the meaning of 42 U.S.C. 2000e (b).
Jurisdiction and Venue 4. Jurisdiction of the Court arises under Title VII of the Civil Rights Act of 1964
as amended, 42 U.S.C. 2000e et seq. ("Title VII"), 42 U.S.C. 2000e-5 (f), 28 U.S.C. 1331 and 28 U.S.C. 1343(a) (4). The Defendant is engaged in business in the City of Saint Joseph, State of Michigan.
Cause of Action 5. Intervenor-Plaintiff timely filed a Charge of Discrimination against the Defendant
with the Equal Employment Opportunity Commission ("EEOC") which organization administers Title VII of the Civil Rights Act of 1964, as amended.
6. On or about September 29, 2003, EEOC commenced this lawsuit. 7. Intervenor-Plaintiff was hired by Defendant as an employee within the meaning of 42 U.S.C. 2000e (f). 8. During all times relevant hereto, Intervenor-Plaintiff was a member of the International Old Path Church of God, and thus keeps holy as the Sabbath the time period from sundown Friday night to sundown Saturday night. 9. Intervenor-Plaintiff advised the Defendant that Intervenor-Plaintiff could not work on his Sabbath and described the time period it covered. After Defendant scheduled Intervenor-
2

Plaintiff to work on his Sabbath, Intervenor-Plaintiff requested an accommodation of the exercise
of his religious beliefs.
10. Defendant refused to accommodate Intervenor-Plaintiff’s religious beliefs,
although several possible accommodations were available.
11. When Intervenor-Plaintiff was unable to work on Friday nights and Saturdays as
scheduled during the period of Intervenor-Plaintiff’s employment, he was subjected to discipline
and his employment was terminated.
12. Defendant has intentionally and willfully engaged in unlawful employment
practices against Intervenor-Plaintiff because of his religion in violation of Title VII, Section
703(a) (1) by:
(a) Failing to reasonably accommodate Intervenor-Plaintiff’s religion by refusing to grant him time off from work so that he could observe his Sabbath.
(b) Failing to reasonably accommodate Intervenor-Plaintiff’s religion by
refusing to grant him a change in his work schedule so that he could observe his Sabbath.
(c) Discriminating against Intervenor-Plaintiff in the terms and conditions of
his employment by refusing to grant him a swap in work hours with other employees.
(d) Disciplining Intervenor-Plaintiff because he is a member of the International Old Path Church of God.
(e) Terminating Intervenor-Plaintiff’s employment because he is a member of the International Old Path Church of God.
13. Defendant could have reasonably accommodated Intervenor-Plaintiff’s religion
without incurring an undue hardship.
WHEREFORE, Intervenor-Plaintiff prays:

1. That this Court find that Defendant has engaged in lawful employment practices with respect to Intervenor-Plaintiff;
That this Court enjoin Defendant from engaging in those unlawful employment practices.
3. That this Court order Defendant to pay Intervenor-Plaintiff all wages and benefits lost, including interest, because of Defendant’s unlawful employment practices.
4. That this Court order Defendant to pay Intervenor-Plaintiff’s damages suffered on account of Defendant’s unlawful discrimination against Intervenor-Plaintiff.
5. That this Court order Defendant to expunge all disciplinary actions from Intervenor-Plaintiff’s personnel file.
6. That this Court order Defendant to rehire Intervenor-Plaintiff. 7. That this Court order Defendant to pay all of Intervenor-Plaintiff’s costs in this action. 8. That this Court award Intervenor-Plaintiff his reasonable attorney’s fees as part of Intervenor-Plaintiff’s costs in this cause pursuant to 42 U.S.C. 2000e-5 (k). 9. That this Court order or adjudge such other and further relief as it deems just and proper.

Dated: December 12, 2003

By: Vernon L. Alg~’r Attorney for IntervenZoPr--P1l0a1in0t1iff PO Box 52 Berrien Springs, MI 49103 (269) 473-1292
Of Counsel: Mitchell A. Tyner, Esq. Office of General Counsel 12501 Old Columbia Pike Silver Spring, MD 20904-6600 (301) 680-6324

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, and JEFF L. CARTER,
Plaintiff-Intervenor,

Case No. 5:03-cv-150 Hon. Wendell A. Miles

v
ROBERT BOSCH CORPORATION,
Defendant. __________________________________________/

OPINION AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Plaintiff the Equal Employment Opportunity Commission (“EEOC”) filed this action against defendant Robert Bosch Corporation (“Bosch” or “the company”), alleging that Bosch violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e. The EEOC’s claim is that Bosch discriminated against a former employee, on the basis of his religion, by requiring him to work overtime on his Sabbath day and terminating him after he accumulated unexcused absences by refusing to work the scheduled overtime. The former employee, Jeff Carter, has been granted leave to intervene as a plaintiff in the action. The matter is currently before the court a motion by Bosch for summary judgment (docket no. 27). Both the EEOC and Carter have opposed the motion.

For the reasons to follow, the court GRANTS the motion.
I Jeff Carter, who became employed by Bosch in July, 1997, is a member of the Old Path Church of God, Inc. The church observes a Sabbath from sundown Fridays until sundown Saturdays. From the beginning of his employment until January, 2002, Carter worked in Bosch’s foundry on either the first or third shift (Monday through Friday, 7:00 a.m. to 3:00 p.m. or Sunday through Thursday, 11:00 p.m. to 7:00 a.m., respectively), positions which presented no difficulties for him in observing his Sabbath. According to Carter, one of his supervisors in the foundry accommodated his desire not to work his Sabbath by finding volunteers to cover Carter’s overtime shifts (11:00 p.m. Friday to 7:00 a.m. Saturday). During the time that Carter worked for Bosch, the company had in effect a collective bargaining agreement (“CBA”) with Local 383 of the International Union of Automobile Workers of America (“the Union”). In early January, 2002, Carter, who had always worked in the company’s foundry, was “bumped” from his shift by another employee having more seniority under the CBA. For the first time, Carter was required to work second shift, consisting of the hours from 3:00 p.m. to 11:00 p.m. Monday through Friday. After some initial difficulties, the Union was ultimately to negotiate on Carter’s behalf for an accommodation with Bosch which required Carter to “bid off” second shift, but in the meantime permitting Carter to trade shifts with another associate on Fridays. In April, 2002, Carter successfully bid on a third shift position in the company’s machine shop, requiring him to leave the foundry, where he had always worked. This third shift position allowed Carter to observe his Sabbath without difficulty, which he did until July, 2002.

However, in July, 2002, Bosch’s machine shop began operating at “100%” capacity. There is no dispute that this meant that the machine shop operated 24 hours a day, seven days a week, requiring mandatory overtime. It was at this time that Carter’s observance of his Sabbath began to conflict with Bosch’s overtime work requirement; it is undisputed that Carter became obligated to work on a number of Saturdays.
The Union’s CBA with Bosch contained a provision requiring “equalization of overtime.” In essence, this provision required the company, to the extent practicable, to equalize overtime within each job, department, and pay group, unless – and this is an important unless – the Union and company agreed otherwise. This provision also required that the employee in an overtime group with the lowest number of overtime hours on a shift would be scheduled to work, qualifications permitting. In other words, employees with the least number of accumulated overtime hours had to be given overtime before their co-workers could again be required by the company to work overtime. The CBA contained provisions for the posting of substitute overtime sign-up lists to reduce mandatory overtime and to help equalize “out of class” overtime. These provisions required an employee to complete a form provided by the company in order to “volunteer” for “out of class” overtime in another department. EEOC’s Brief in Opposition, Exhibit 6 (Article XVI of CBA), at 48-56.
Beginning in July, 2002, Carter alleges, he attempted to exercise options available to him under the CBA in order to avoid Saturday overtime. This included taking what the CBA denoted “Paid Absence Allowance” time off (or “PAAs”), consisting of a total of 64 hours, 40 of which could be taken without prior approval by the company. At some point, the Union became involved in seeking to reach an accommodation with Bosch which would enable Carter to avoid Saturday overtime. However, the Union did not reach an agreement with Bosch. On September

16, 2002, Bosch fired Carter for accumulating four unexcused absences, three of which resulted from Carter’s refusal to work overtime on Saturdays while the machine shop was operating at 100% capacity.
Carter subsequently filed a charge of discrimination with the EEOC. On September 29, 2003, the EEOC filed this action, alleging that Bosch had violated Carter’s rights under Title VII by failing to provide him with a reasonable accommodation of his known sincerely-held religious beliefs and by terminating him because his beliefs conflicted with an employment requirement. Discovery in the action is now complete, and the company’s motion is now ripe for decision.
II In its motion, Bosch argues that unless and until the Supreme Court reverses its decisions in Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 107 S.Ct. 367 (1986) and Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264 (1977), neither the EEOC nor Carter has a viable claim against the company for religious discrimination under Title VII. Summary judgment is proper 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 judgment as a matter of law." Fed.R.Civ.P. 56(c). In evaluating a motion for summary judgment, the court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the burden of establishing the non-existence of any genuine issue of material fact and may satisfy this burden by "'showing'--that is, pointing out to the district court--that there is an

absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). While inferences drawn from the underlying facts must be viewed in the light
most favorable to the party opposing the motion, "[w]hen the moving party has carried its burden
under Rule 56(c), its opponent must do more than simply show that there is some metaphysical
doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986). Only factual disputes which may have an effect on the outcome of a lawsuit under
the applicable substantive law are "material." Anderson, 477 U.S. at 248.
Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment because of such individual’s . . . religion[.]” 42
U.S.C. § 2000e-2(a)(1). Under the statute,
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 to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.
42 U.S.C. § 2000e(j).1
According to Sixth Circuit case law,
The analysis of any religious accommodation case begins with the question of whether the employee has established a prima facie case of religious discrimination. Such a case is established when an employee shows that: (1) he holds a sincere religious belief that conflicts with an employment requirement; (2) he has informed the employer about the conflicts; and (3) he was discharged or disciplined for failing to comply with the conflicting employment requirement.
Smith v. Pyro Mining Co., 827 F.2d 1081, 1085 (6th Cir. 1987) (citation omitted). Once the
1As the Supreme Court has observed, the “reasonable accommodation duty” was incorporated “somewhat awkwardly” into Title VII in 1972, through the addition of the definition of “religion.” Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 63 n.1, 107 S.Ct. 367, 369 n.1 (1986).

plaintiff has established a prima facie case, “[t]he burden then shifts to 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. National Ass’n of Letter Carriers, 225 F.3d 1149, 1156 (10th Cir. 2000) (footnote omitted).
Once an employer has offered a single reasonable accommodation, it has fulfilled its obligation under Title VII. McGuire v. General Motors Corp., 956 F.2d 607, 609 (6th Cir. 1992). The employer is not required to choose the accommodation favored by the employee, or any particular accommodation for that matter; instead, “[b]y its very terms [Title VII] directs that any reasonable accommodation by the employer is sufficient to meet its accommodation obligation.” Ansonia, 479 U.S. at 68, 107 S.Ct. at 372. “Thus, where the employer has already reasonably accommodated the employee’s religious needs, the statutory inquiry is at an end. The employer need not further show that each of the employee’s alternative accommodations would result in undue hardship.” Id.; see Thomas, 225 F.3d at 1156 n.7 (“The employer does not have to demonstrate that the particular accommodation requested by the employee would result in an undue hardship”). The employer is not required “to consider and preclude an infinite number of possible accommodations.” Id., 225 F.3d at 1156.
Bosch does not dispute that the EEOC and Carter have established a prima facie case. Bosch also does not contend that it was unable reasonably to accommodate Carter’s observance of his Saturday Sabbath without undue hardship. Therefore, the only disputed aspect of the case for purposes of summary judgment is whether Bosch has shown that it offered Carter a reasonable accommodation. “The reasonableness of an employer’s attempt to accommodate is determined on a case-by-case basis.” Cooper v. Oak Rubber Co., 15 F.3d 1375, 1378 (6th Cir.

1994). However, according to the EEOC’s own guidelines clarifying the obligation imposed by
Title VII, the use of voluntary substitutes and “swaps” is one means of accommodating a conflict
between work schedules and religious practices. 29 C.F.R. § 1605.2(d)(i). Specifically, these
guidelines provide that
Reasonable accommodation without undue hardship is generally possible where a voluntary substitute with substantially similar qualifications is available. One means of substitution is the voluntary swap. In a number of cases, the securing of a substitute has been left entirely up to the individual seeking the accommodation. The Commission believes that the obligation to accommodate requires that employers and labor organizations facilitate the securing of a voluntary substitute with substantially similar qualifications. Some means of doing this which employers and labor organizations should consider are: to publicize policies regarding accommodation and voluntary substitution; to promote an atmosphere in which such substitutions are favorably regarded; to provide a central file, bulletin board or other means for matching voluntary substitutes with positions for which substitutes are needed.
29 C.F.R. § 1605.2(d)(i). The EEOC has conceded in this case, as it apparently must, that
“voluntary swapping” of shifts is a reasonable accommodation. EEOC’s Brief in Opposition, at
14.
As noted above, Bosch’s position is that the Supreme Court’s decisions in Ansonia and
Hardison control here. In Ansonia, the Court held that “an employer has met its obligation under
[42 U.S.C. § 2000e(j)] when it demonstrates that it offered a reasonable accommodation to the
employee.” 479 U.S. at 69, 107 S.Ct. at 372 (footnote omitted). In so holding, the Court noted
that a portion of the EEOC’s guidelines on religious discrimination which require the employer
to choose an accommodation alternative which “least disadvantages an individual’s employment
opportunities” is “simply inconsistent with the statute.” 479 U.S. at 69 n.6, 107 S.Ct. at 372 n.6
(quoting 29 C.F.R. § 1605.2(c)(2)(ii)). According to the Court, “[b]y its very terms the statute
directs that any reasonable accommodation by the employer is sufficient to meet its

accommodation obligation.” 479 U.S. at 68, 107 S.Ct. at 372. The Court concluded by remanding the case in view of “insufficient factual findings as to the manner in which the collective-bargaining agreements have been interpreted,” although noting that an accommodation requiring the plaintiff to take unpaid leave as permitted by the collective bargaining agreement “would generally be a reasonable one.” 479 U.S. at 70, 107 S.Ct. at 373.
Ansonia therefore makes it clear that an employer need offer only one reasonable accommodation to fulfill its statutory obligation under Title VII. Earlier, in Hardison, the Court made it clear that employers covered by a collective bargaining agreement on a different footing than employers who are not bound by such an agreement. The issue in Hardison was virtually identical to that presented here: “the extent of the employer’s obligation under Title VII to accommodate an employee whose religious beliefs prohibit him from working on Saturdays.” 432 U.S. at 66, 97 S.Ct. at 2268. In that case, the department in which the plaintiff worked operated 24 hours per day, 365 days per year. Whenever an employee’s job in that department was not filled, another employee would have to be shifted from another department, or a supervisor would have to cover the job, even if this caused the work in other areas to suffer. The collective bargaining agreement gave the most senior employees the first choice of job and shift assignments, and the most junior employees were required to work when the union steward was unable to find enough people willing to work at a particular time or in a particular time to fill the employer’s needs. 432 U.S. at 66-67, 97 S.Ct. at 2268.
When the plaintiff in Hardison informed his department manager that his religion required that he refrain from working from sunset on Friday until sunset on Saturday, the manager agreed that the union steward should seek a job swap for plaintiff or a change of days off. However, the union was not willing to violate the collective bargaining agreement’s

seniority provisions, and plaintiff had insufficient seniority to bid for a shift having Saturdays off.
432 U.S. at 68, 97 S.Ct. at 2269. In addition, the union steward reported that “he was unable to
work out scheduling changes and that he understood that no one was willing to swap days with
plaintiff.” 432 U.S. at 78, 97 S.Ct. at 2273-2274. When the employer and the union were unable
to reach an accommodation, plaintiff refused to report for work on Saturdays, and was ultimately
discharged for insubordination.
The Court held that because collective bargaining “lies at the core of our national labor
policy,” which – like the duty to accommodate religious needs – is a matter of statute, the duty to
accommodate does not require an employer “to take steps inconsistent with” an otherwise valid
collective bargaining agreement. 432 U.S. at 80, 97 S.Ct. at 2274. According to the Court,
because there were no volunteers to work Saturdays in place of the plaintiff, to give the plaintiff
Saturdays off the employer “would have had to deprive another employee of his shift preference
at least in part because he did not adhere to a religion that observed the Saturday Sabbath.” 432
U.S. at 81, 97 S.Ct. at 2275. However, the Court concluded,
Title VII does not contemplate such unequal treatment. The repeated, unequivocal emphasis of both the language and the legislative history of Title VII is on eliminating discrimination in employment, and such discrimination is proscribed when it is directed against majorities as well as minorities. . . . Indeed, the foundation of [plaintiff]'s claim is that [the employer] and [the union] engaged in religious discrimination in violation of § 703(a)(1) [42 U.S.C. § 2000e-2(a)(1)] when they failed to arrange for him to have Saturdays off. It would be anomalous to conclude that by ‘reasonable accommodation’ Congress meant that an employer must deny the shift and job preference of some employees, as well as deprive them of their contractual rights, in order to accommodate or prefer the religious needs of others, and we conclude that Title VII does not require an employer to go that far.
432 U.S. at 81, 97 S.Ct. at 2275. The Court held that the employer made reasonable efforts to
accommodate by leaving to the union steward the task of finding someone who was willing to

work for the plaintiff. 432 U.S. at 77-78, 97 S.Ct. at 2273.
In this case, the evidence clearly shows that Bosch informally discussed with the Union
the possibility of allowing Carter to trade shifts with another associate on Fridays, an
arrangement which had been in place when Carter worked in the foundry.2 Indeed, on July 29,
2002, after the machine shop began operating at 100% capacity requiring mandatory overtime but
before Carter had been charged with any unexcused absences in that position, Benson James of
Bosch’s human resource department inquired by e-mail of Sharene Tyler, one of the Union
representatives, whether Carter had “sought out another person to make an arrangement similar
to the one he had in the foundry.” Appendix to EEOC’s Supplemental Brief in Opposition,
Exhibit 28. According to James, he was following up on a previous conversation with Tyler by
asking her whether they might be able to work out an arrangement for Carter to trade shifts, as
had been done in the foundry. Id., Exhibit 17 (Deposition of Benson James), at 39-40, 45, 47-49.
However, according to Tyler, the Union steward could not find anyone to work Carter’s
Saturday overtime. Id., Exhibit 23 (Deposition of Sharene Tyler) (“Tyler Dep.”), at 41, 60. Tyler
2This arrangement was memorialized an a “Memorandum of Agreement” (“MOA”) signed by all the parties, including the Union, dated March 18, 2002. EEOC’s Brief in Opposition, Exhibit 5. Importantly, the MOA placed the obligation on the Union to “designate any voluntary associates” to take Carter’s Sabbath shifts, with the specification that the volunteers had to be “qualified to completely perform the duties of the job, as well as Mr. Carter being qualified to completely perform the duties of the job of the other voluntary associate.” Id., ¶ 5.
However, by its terms, the MOA only resolved a grievance which Carter had filed while he was still working second shift in the foundry. EEOC’s Brief in Opposition, Exhibit 4. According to Andre Holmes, a member of the Union’s bargaining committee, both Bosch and the Union agreed that Carter’s new job on a different shift in another part of the company’s plant (the machine shop) involving mandatory overtime presented a “different” situation, rendering the MOA no longer applicable. Appendix to EEOC’s Supplemental Brief in Opposition, Exhibit 21 (Deposition of Andre Holmes), at 32. According to Benson James, the Union was objecting in general to the amount of overtime employees in the machine shop were being required to work on all shifts in the department. Appendix to EEOC’s Supplemental Brief in Opposition, Exhibit 17 (Deposition of Benson James), at 77-78.

also testified that Carter even tried to help her to formulate a list of persons who would be willing
to work as his Sabbath replacement, but Carter couldn’t find anyone who was willing to help
him. Id. at 47-49. Tyler further testified that they even attempted to find “out of class”
replacements for Carter, but employees did not want to volunteer because they did not like to
work for Carter’s supervisor, Sandra Nedoba. Id., at 50. Although Carter testified that Union
bargaining committee member Andre Holmes told him that “he had a list” of employees who
might be willing or able to work (it’s not clear which, or if both), Appendix to EEOC’s
Supplemental Brief in Opposition, Exhibit 18 (Deposition of Jeff Carter), at 131-132, apparently
the Union did not itself bother to present this supposedly valid list to Bosch before Carter was
fired for missing work on his Sabbath multiple times. Holmes himself testified that he personally
never tried to find anyone to work Carter’s overtime between July and September, 2002. Id.,
Exhibit 21 (Deposition of Andre Holmes), at 63.3
Carter does state, in his affidavit, that he asked his supervisor, Sandra Nedoba, whether
he could “swap shifts with any volunteers,” expressly mentioning the MOA that had been
negotiated in the foundry. EEOC’s Brief in Opposition, Exhibit 2 (Declaration of Jeff Carter), ¶
10. Carter was not certain of the date of this conversation, stating that it could have occurred
3Holmes’ April 14, 2004 testimony is consistent in this regard with his affidavit which the EEOC filed with its original Brief in Opposition. According to Holmes’ earlier affidavit, dated January 9, 2004, in which he stated that although the Union “was willing to assist in the development of qualified volunteers from ‘out of class’,” employees, the Union did not actually produce such a list until after Carter had been fired and the Union was negotiating his return to work, and even then the negotiations pertained to Carter’s return to a position in the foundry, not the machine shop. EEOC’s Brief in Opposition, Exhibit 3 (Declaration of Andre Holmes) (“Holmes Aff.”), at 4, ¶s 9-10; see id., Exhibits 30, 31 (Union Proposal and Draft Memorandum of Agreement, respectively, providing for Carter’s return to work in the foundry after his discharge). In his affidavit, Holmes confirmed that although the negotiations for Carter’s return were for other reasons unsuccessful, “Bosch was willing to accept this list” of volunteers. Holmes Aff. at 4, ¶ 10.

“[i]n late July or early August, 2002[.]” Id. Not surprisingly, Nedoba replied in the negative, and, according to Carter, informed him that “the swapping arrangement [Carter] had in the Foundry will not be allowed in the Machine Shop.” Id. However, what is clear is that Nedoba and Carter lacked the authority to directly negotiate with each other to formulate an arrangement for Carter’s excusal from Saturday overtime; instead, the company had to negotiate through the Union, as Carter’s exclusive bargaining representative. See, e.g., National Labor Relations Bd. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180, 87 S.Ct. 2001, 2006 (1967) (national labor policy “extinguishes the individual employee’s power to order his own relations with his employer and creates a power vested in the chosen representative to act in the interests of all employees”); Virts v. Consolidated Freightways Corp. of Delaware, 285 F.3d 508, 519 (6th Cir. 2002) (because employees were represented by labor organization, employer was prohibited from direct dealing with employees to solicit voluntary swaps of runs); see also Clarett v. National Football League, 369 F.3d 124, 138 (2d Cir. 2004) (because football players were unionized, labor law prohibited player from negotiating directly the terms and conditions of his employment directly with any potential employer). In any case, what neither the EEOC nor Carter explains is how they could have formulated a list of employees willing to work overtime in the machine shop, when the department was in a 100% capacity situation and overtime was already mandatory for other employees in addition to Carter.
The EEOC at one point dismisses the issue of accommodation through use of volunteers, arguing that “James would not consider allowing the use of the swapping arrangement (volunteer trades) . . . in the machine Shop as an accommodation for Carter.” EEOC’s Brief in Opposition, at 7. In support of this argument, made in its initial brief filed before the completion of discovery, the EEOC cites to the affidavit of Sharene Tyler, who states, “The Union requested,

but James did not agree, to the institution of volunteer swaps.” Id., Exhibit 8 (Declaration of
Sharene Tyler), ¶ 2. However, when her deposition was subsequently taken, Tyler admitted that
Benson James “said we can get volunteers from out of class.” EEOC’s Supplemental Brief in
Opposition, Exhibit 23 (Deposition of Sharene Tyler) (“Tyler Dep.”), at 77. In its Supplemental
Brief in Opposition, the EEOC apparently realizes that there is evidence contradicting its earlier
position that use of volunteers was denied, for the EEOC argues that “conflicting testimony
between Carter and Nedoba raises an issue of fact as to whether Carter was denied the request to
trade shifts by his direct supervisor.” Id. at 10. However, once again, this evidence of supposed
direct discussions between Carter and Nedoba ignores the legal requirement that Bosch negotiate
with the Union on the issue of relieving an employee from the burden imposed by the contractual
requirement of equalization of overtime.4
The EEOC skirts over the issue of the lack of available volunteers to work overtime for
Carter in the machine shop – blaming it on the company – and instead focuses its arguments on
what it contends was a failure by Bosch to schedule formal negotiations with the Union to
discuss the issue of “swapping.” EEOC’s Supplemental Brief in Opposition, at 11. The EEOC
also argues, relying on Tyler’s testimony, that James told the Union that “voluntary swapping
4What the EEOC also apparently fails to realize is that the issue of limited shift “swaps” negotiated between employees presented a different question than the procurement of volunteers from a list formulated by the Union and the company. Sharene Tyler testified that these were different practices. Tyler Dep. at 50. There is evidence that Bosch permitted the practice of employees “swapping” shifts with each other; for example, an employee assigned to work a particular time could find another employee to work for him. However, this would have been a week-to-week measure, virtually amounting to no accommodation at all. See Equal Employment Opportunity Comm’n v. Arlington Transit Mix, Inc., 957 F.2d 219, 222 (6th Cir. 1991) (company’s adoption of “week-to-week, wait-and-see posture . . . amounted to no accommodation at all”). What Bosch could not do, absent an agreement with the Union, was to simply excuse an employee from working overtime and proceed to require another employee to perform in his co-worker’s place.

was not an option and denied her request to negotiate a swapping [agreement] for the Machine Shop.” Id. at 12. However, a review of this cited testimony reveals that Tyler admitted that James told her “the union and [Carter] needed to find someone to cover him[.]” Tyler Dep. at 129. If no formal meeting was held on the question, it was because no volunteers were found to work for Carter in the machine shop on his Sabbath. Tyler admitted not only that she instructed the Union steward to make sure that an “out of class” volunteer list was posted, but also that the steward “took the list down and went to each individual that was there.” Tyler Dep. at 127-128. It is clear, based on this testimony, that no one was willing to sign the volunteer list to work overtime for Carter on Saturdays in the machine shop. Reply Brief Supporting Bosch’s Motion for Summary Judgment, Excerpt from Tyler Dep. at 42-44, 76-77. Under the controlling Supreme Court authority of Hardison, Bosch cannot be held liable because no one was willing to volunteer. 432 U.S. at 81, 97 S.Ct. at 2275.
In its Supplemental Brief in Opposition, the EEOC argues that Bosch should ALSO have initiated formal negotiations with the Union to pursue other options for accommodation, including allowing Carter to use his remaining PAA days. However, even if this could be considered a reasonable accommodation – and there are serious doubts whether it could be, insofar as this would have been a week-to-week measure which would soon be exhausted5 – Bosch was not required to offer more than one reasonable accommodation.
In sum, the evidence shows that Bosch offered the option of using volunteers to work
5The EEOC does not adequately address why Carter’s use of his remaining PAA days would have been a reasonable accommodation if there was still no one either willing or available to work overtime for Carter in the event that he was granted permission to use these PAAs to avoid Saturday overtime. This would have still left Bosch with an absence to fill during those times when mandatory overtime was required to keep the department running at 100% capacity.

overtime for Carter on his Sabbath; that there were no volunteers; and that the use of volunteers is, as a matter of law, a reasonable accommodation, even where the employee’s collective bargaining representative cannot find volunteers willing or able to volunteer. Under the circumstances, Bosch is entitled to summary judgment in its favor.
Conclusion For the foregoing reasons, the court GRANTS the motion for summary judgment. Judgment will be entered accordingly. So ordered this 21st day of October, 2004.
/s/ Wendell A. Miles Wendell A. Miles Senior U.S. District Judge

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, and JEFF L. CARTER,
Plaintiff-Intervenor,

Case No. 5:03-cv-150 Hon. Wendell A. Miles

v
ROBERT BOSCH CORPORATION,
Defendant. __________________________________________/

OPINION AND ORDER ON PLAINTIFF EEOC’S MOTION FOR RECONSIDERATION

Plaintiff the Equal Employment Opportunity Commission (“EEOC”) filed this action against defendant Robert Bosch Corporation (“Bosch” or “the company”), alleging that Bosch violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e. The EEOC’s claim is that Bosch discriminated against a former employee, Jeff Carter, on the basis of his religion by requiring him to work overtime on his Sabbath day and terminating him after he accumulated unexcused absences by refusing to work the scheduled overtime. Carter has been granted leave to intervene as a plaintiff in the action.
On October 21, 2004, the court issued a decision granting Bosch’s motion for summary judgment. The matter is currently before the court on motions by both Carter and the EEOC for

reconsideration (docket nos. 84 and 89) of that decision. For the reasons to follow, the court DENIES the motions.
Discussion In its lengthy Opinion and Order (docket no. 81), the court concluded that Bosch was entitled to summary judgment because the evidence showed that Bosch had offered the option of using volunteers to work overtime for Carter on his Sabbath; that there were no volunteers; and that the use of volunteers was, as a matter of law, a reasonable accommodation, even though the employee’s collective bargaining representative – here, Local 383 of the International Union of Automobile Workers of America (“the Union”) – could not find volunteers willing or able to volunteer. In its motion, the EEOC expressly relies on Fed.R.Civ.P. 59(e) and W.D. Mich. L.Civ.R. 7.4(a).1 A district court may grant reconsideration under Fed.R.Civ.P. 59(e) for any of four reasons:
(1) because of an intervening change in the controlling law; (2) because evidence not previously available has become available; (3) to correct a clear error of law; or (4) to prevent manifest injustice. See GenCorp, Inc. v. American Int'l Underwriters, 178 F.3d 804, 834 (6th Cir.1999). In
addition, W.D. Mich. L.Civ.R. 7.4(a) provides that a movant seeking reconsideration “shall not only demonstrate a palpable defect by which the Court and the parties have been misled, but also show that a different disposition of the case must result from a correction thereof.”2
1In his own motion for reconsideration, Carter merely joins in the arguments made by the EEOC.
2The EEOC’s brief (docket no. 90) filed in support of its motion for reconsideration (continued...)
2

In support of its request for relief, the EEOC raises a number of arguments, which can essentially be divided into two separate categories: (1) the court erred in concluding that the Supreme Court’s opinions in Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 107 S.Ct. 367 (1986) and Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264 (1977) supported the entry of summary judgment in favor of Bosch, and (2) the court erred in concluding that the facts of record supported that decision.
In its decision granting summary judgment in favor of Bosch, the court concluded that the issue in Hardison was virtually identical to that presented here: “the extent of the employer’s obligation under Title VII to accommodate an employee whose religious beliefs prohibit him from working on Saturdays.” Opinion and Order at 8 (citing Hardison, 432 U.S. at 66, 97 S.Ct. at 2268).
In Hardison, the Supreme Court observed that the seniority system contemplated by the collective bargaining agreement “itself represented a significant accommodation to the needs, both religious and secular, of all [the company’s] employees” because such a system “represents a neutral way of minimizing the number of occasions when an employee must work on a day that he would prefer to have off.” Id., 432 U.S. at 78, 97 S.Ct. at 2274. According to the Court, its conclusion was “supported by the fact that seniority systems are afforded special treatment under Title VII itself[,]” namely under 42 U.S.C. § 2000e-2(h). Hardison, 432 U.S. at 81-82, 97 S.Ct.
2(...continued) consists of 27 pages of text, which not only exceeds the number of pages contained in its earlier brief in response (25 pages, docket no. 72), but also exceeds the number of pages permitted by
Local Rules for dispositive motions. See W.D. Mich. LCivR 7.2(b). Despite its length, the brief
contains three footnotes (8, 9, and 15) which appear to be incomplete. Although the Local Rules do not precisely specify page limits for briefs submitted in support of motions for reconsideration, the Rules do provide that motions “which merely present the same issues ruled
upon by the Court shall not be granted.” W.D. Mich. LCivR 7.4(a). 3

at 2275. The Court reiterated that it was concluding that the company “was not required by Title VII to carve out a special exception to its seniority system in order to help [the plaintiff] to meet his religious obligations.” Id., 432 U.S. at 83, 97 S.Ct. at 2276. In construing similarly worded statutes, the Supreme Court has noted that neutral seniority systems – collectively bargained or otherwise – are generally sufficient to show reasonable accommodation. See U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 403-405, 122 S.Ct. 1516, 1524-1525 (2002) (construing Americans with Disabilities Act).
In this case, the Union’s collective bargaining agreement (“CBA”) with Bosch contained a provision requiring “equalization of overtime.” This provision also required that an employee in an overtime group with the lowest number of overtime hours on a shift would be scheduled to work, qualifications permitting. In other words, employees with the least number of accumulated overtime hours had to be given overtime before their co-workers could again be required by the company to work overtime. The CBA contained provisions for the posting of substitute overtime sign-up lists to reduce mandatory overtime and to help equalize “out of class” overtime. In addition, the CBA also permitted employees to “volunteer” for “out of class” overtime in another department by completing a required form. EEOC’s Brief in Opposition, Exhibit 6 (Article XVI of CBA), at 48-56.
The CBA’s requirement for “equalization” of overtime essentially amounted to an objective, neutral system in which the number of accumulated overtime hours was the primary consideration in determining who would be assigned overtime – if other arrangements could not be made with “out-of-class” employees on a purely voluntary basis. The system was much like that contemplated by Hardison, representing a “neutral way of minimizing the number of occasions when an employee must work on a day that he would prefer to have off.” See id., 432
4

U.S. at 78, 97 S.Ct. at 2274. Generally, a company’s use of a “neutral system such as seniority, a lottery, or rotating shifts” will establish reasonable accommodation. Hardison, 432 U.S. at 80, 97 S.Ct. at 2275.
The EEOC argues that neither Hardison or Ansonia permit an employer to avoid liability by proposing an accommodation that “does not work.” According to the EEOC, in order to be reasonable, an accommodation has to completely eliminate the conflict between the employee’s work obligations and his religious ones. However, neither Hardison nor Ansonia holds that Title VII requires an employer to completely eliminate all conflicts. Nor does Smith v. Pyro Mining Co., 827 F.2d 1081 (6th Cir. 1987), on which the EEOC relies. In Smith, the Sixth Circuit considered “whether an employer reasonably accommodates an employee by allowing the employee to arrange a shift trade himself when the employee considers it a sin to arrange such a swap.” Id. at 1088. A majority of the panel in Smith concluded that this was not a reasonable accommodation. However, neither the EEOC nor Carter has contended that Carter considered it a “sin” for Carter, or the Union acting on his behalf, to seek other employees to work for Carter on his Sabbath. Moreover, the decision in Smith contains no indication that the employer was subject to a collective bargaining agreement. Smith simply does not require the conclusion that only an accommodation which eliminates all conflict between employment and religious observance is reasonable. As one court has noted,
Any voluntary system is at the mercy of its volunteers; the system will not work perfectly should co-workers be unwilling to swap. However, despite this possibility that voluntary swaps will not always resolve a scheduling conflict, courts have held that the programs are reasonable accommodations. Moore v. A.E. Staley Mfg. Co., 727 F. Supp. 1156, 1161 (N.D. Ill. 1989). The EEOC concedes, as it did previously, that seeking other employees to volunteer to
5

work Carter’s Sabbath shifts is generally a reasonable accommodation. EEOC’s Brief in Support
of Motion for Reconsideration at 7. However, the EEOC now contends, this accommodation
was not reasonable under the facts of this case because Bosch did not do enough to make sure the
accommodation succeeded. According to the EEOC, “Bosch’s overtime volunteer process was
not reasonable because it was not an effective means for securing volunteers to cover for Carter’s
Sabbath absences, largely because of Bosch’s failure to cooperate in the process.” Id. at 7-8.3
The court presumes that the EEOC’s argument that the volunteer process was not
“effective” represents, in part, a concession that no employees volunteered to work for Carter on
his Sabbath. Apart from this, however, the argument that no one volunteered because Bosch
somehow failed to live up to the requirements of the CBA is not supported by evidence that
would be admissible at trial. The CBA provided that a weekend overtime “sign-up sheet will
consistently be posted as practicable in each given area of the plant, and will be facilitated in the
same manner as the daily overtime.” CBA at 50, Appendix to EEOC’s Brief in Opposition,
Exhibit 6. Although the EEOC relies on hearsay testimony of Union representative Sharene
3The EEOC argues that the employer’s conduct is relevant in determining whether an employer’s accommodation is reasonable, citing McGuire v. General Motors Corp., 956 F.2d 607 (6th Cir. 1992). In McGuire, the court concluded that the issue of reasonable accommodation could not be decided on summary judgment, where the employer responded to a union complaint that the plaintiff was being skipped for overtime duty by “surveying” other employees about plaintiff’s situation. Specifically, the employer asked employees to complete two written “surveys” which asked in part whether they favored the plaintiff being given his Saturdays off. Most of the employees responded negatively, even though plaintiff had previously been able to use vacations, time-off days, and shift swaps to successfully avoid working on his Sabbath for a six-month period. 956 F.2d at 608-609. The plaintiff argued successfully on appeal that the surveys presented a new situation, making it virtually impossible for him to find volunteers, and the court agreed that the purpose and/or effect of the surveys raised questions of fact, which should be considered in addition to the question of whether the plaintiff himself failed to seek volunteers. 956 F.2d at 610. The EEOC has pointed to nothing done by Bosch in this case which can be equated with the “surveys” conducted by the employer in McGuire.
6

Tyler as support for its argument that the overtime lists were not posted between July and September, 2002, see Tyler Dep. at 118, Appendix to EEOC’s Brief in Support of Motion for Reconsideration, Exhibit 37, Tyler in fact testified that she personally could not say whether the lists were posted or not during that time period because she “wasn’t the steward on the floor at that time.” Id. at 11. Tyler was specifically asked the following: “So you don’t know whether or not out of class lists were being posted during that period or not?” She answered “No, I don’t.” Id. at 11. Tyler was also asked, “Do you ever recall a specific time during that period of time where you went to the bulletin board and the list wasn’t there?” She answered, “No, I did not go to the board. The steward handles the floor so he did the checking as far as what’s on the board and checking overtime.” Id. at 12.
The union steward at the time was Willie Dumas. The EEOC did not submit an affidavit or testimony of Dumas in opposing Bosch’s motion, although it now relies in part on his testimony in support of its motion for reconsideration. Dumas Dep., Appendix to EEOC’s Brief in Support of Motion for Reconsideration, Exhibit 36. According to the EEOC, the parties entered into a stipulation that Dumas could be deposed after the close of discovery “[d]ue to difficulties in serving [him] with a subpoena before the close of discovery[.]” EEOC’s Brief in Support of Motion for Reconsideration at 8 n.3. In its brief filed opposing Bosch’s motion after the close of discovery, the EEOC did not indicate that it anticipated a need to rely on Dumas’ testimony. The EEOC likewise failed to file an affidavit as provided by Fed.R.Civ.P. 56(f) after the close of discovery. Notwithstanding these failures, the EEOC now argues that Dumas’ testimony is “newly discovered evidence.”
The testimony of a witness cannot be deemed “newly discovered” where a party is aware of that witness before entry of summary judgment but simply fails to protect itself as required by
7

Fed.R.Civ.P. 56(f). However, even if Dumas’ testimony may properly be considered in support of the EEOC’s motion for reconsideration, the testimony is at best cumulative and at worst supports Bosch’s position, insofar as Dumas confirms that he found no volunteers to work for Carter on his Sabbath. According to Dumas, during July through September, 2002, the supervisors in Carter’s department posted that they were “100-percent scheduled,” including for Saturdays. Dumas Dep. at 29. As far as attempting to recruit out-of-class volunteers, Dumas admitted that he “did not really pursue that process” because, being a “new steward at the time, he was “unfamiliar with that system.” Id. at 32-33. At one point, before he had become Union steward, he apparently believed – mistakenly – that it was the supervisors who were supposed to find coverage. Id. Once he became steward, however, he was disabused of this notion, and on different occasions he did attempt to recruit volunteers. Id. at 35. Only once did Dumas specifically ask that a list be posted, and when he did ask, this was done. Id. Dumas was also given some volunteer slips completed by employees, to whom he talked about working overtime. He could not remember whether any of them actually agreed to work on a particular day, although he admitted that he “didn’t have much luck finding coverage, because other departments were doing a lot of overtime at the time too.” Id. at 37-38. Dumas testified that “people pretty much got burnt out on overtime, and so . . . when they got the opportunity to be off, they would be off.” Id. at 54. At times when Dumas did find willing volunteers to work outof-class overtime, there was no problem with the supervisors accepting the volunteers. Id. at 3839. According to Dumas, he looked for volunteers only on third shift, primarily because he was the steward for that shift; the other two shifts had their own stewards. Id. at 52, 54.4
4To the best of the court’s knowledge, the EEOC has not relied on affidavits or testimony (continued...)
8

The EEOC argues that Bosch should have provided a “safety net” for Dumas’ “inexperience” by meeting its “contractual obligation to get involved in the search for out-ofclass volunteers[.]” EEOC’s Brief in Support of Motion for Reconsideration at 11. The EEOC argues that Bosch was also obligated by EEOC guidelines to “facilitate the securing” of qualified volunteers. However, the CBA expressly provides that “Management may utilize the assistance of a Union official to ask employees on the list when needed.” CBA at 56. Dumas’ testimony confirms that this was what occurred. In addition, 29 C.F.R. § 1605.2, on which the EEOC relies, places duties on both employers and labor organizations. Subsection (d)(1)(i) of that guideline, on which the EEOC specifically relies, suggests various means of facilitating the use of volunteers, most of which are incorporated into the CBA and were used without success here.5
Simply put, the EEOC’s argument that Bosch should have relied less on the Union to secure volunteers is premised on a fundamental misunderstanding of the obligations of an employer subject to a CBA and on a lack of familiarity with the particular CBA provisions which governed Carter’s employment in this case. Further indication of this misunderstanding is found in the EEOC’s argument that Bosch should have entered into a separate agreement with the Union – or “Memorandum of Agreement” (“MOA”) – which somehow accommodated Carter. However, because the Union never indicated that it was willing to waive the CBA provisions regarding the assignment out-of-class overtime on a voluntary basis, the possibility of entering
4(...continued) of the Union stewards for the other two shifts.
5The EEOC also argues that certain Bosch supervisors “hindered” the Union’s ability to secure volunteers because they required that out-of-class volunteers be trained. However, not only does the CBA contemplate that such volunteers will be trained, but the EEOC Guidelines also recognize that volunteers will have “substantially similar qualifications.” CBA at 55, 29 C.F.R. § 1605.2(d)(1)(i).
9

into an MOA with the Union required the procurement by the Union of a list of qualified
volunteers – which the Union did not do.6 (The EEOC’s own submissions indicate that the
Union informed that company that a written agreement – such as one which the Union negotiated
for Carter when he worked in the foundry – was not possible because the Union could not find
anyone who was willing to swap with Carter. Tyler Dep. at 49-50, 56-57, Exhibit 37, Appendix
to EEOC’s Brief in Support of Motion for Reconsideration.) Under the circumstances, the
EEOC’s attempt to distinguish this case from Hardison fails. See id., 432 U.S. at 78, 97 S.Ct. at
2273-2274 (employer agreed to permit Union steward to seek swap of shifts, but steward
reported he was unable to work out schedule changes and found no one willing to swap with the
employee).
The EEOC also repeats other arguments it made before summary judgment, including its
arguments that Bosch should have explored additional means of accommodation, and that other
means of accommodation were available which did not pose an undue hardship on Bosch.
However, as this court has already noted, Ansonia holds that an employer is not required to
consider and preclude all of the employee’s proposed alternatives; only one reasonable
accommodation suffices to fulfill an employer’s statutory duty. Opinion and Order at 6. In any
6The EEOC’s Brief in Support states that “a list of qualified volunteers could have been part of the MOA[.]” Id. at 17. This statement is followed by a footnote citing to Dumas’ testimony for the proposition that a supervisor told Dumas “a few volunteers were coming forward.” Id. at 17 n.8. However, the EEOC has not identified any volunteers by name, nor has it shown that such persons were available to work Carter’s shifts. According to Dumas, first priority was given to covering medical absences, and then to employees who exercised their right, afforded under the CBA, to be excused from scheduled overtime for up to 48 hours per year. Dumas Dep. at 56-57; CBA at 50.
Interestingly, footnote 8 of the EEOC’s supporting brief contains the following boldface statement, which appears to be an internal note of the brief’s author inadvertently included in the final draft filed with the court: “Cite other evidence volunteers were available.” This “other evidence” is not, however, cited by the EEOC.
10

event, what is clear is that Bosch had already accommodated Carter’s observance of his Sabbath
in other ways, including permitting him to bid into a new position and excusing him from 48
hours of overtime on his Sabbath, pursuant to the CBA. The CBA afforded all Union employees
“the right to be excused from scheduled overtime for up to forty-eight (48) hours per year.” CBA
at 50. Plaintiff utilized all of the 48 hours on the following dates in 2002: July 27, August 10,
August 17, August 24, August 31, and September 7. Exhibit 7, Appendix to EEOC’s Brief in
Opposition.7
The EEOC also argues that the court’s ruling was based in part on a “misunderstanding”
of the facts and record, in a number of respects. These include the following: (1) the court found
as “undisputed fact that the entire Machine Shop was operating at 100% mandatory overtime
capacity”; (2) the court “mistakenly concluded” that volunteers could not be found to cover for
Carter; (3) the court was supposedly under a mistaken “impression” that the Union had generated
a list of volunteers but failed to present it to Bosch before Carter was fired; and (4) the court
“mistakenly found” that Benson James, a company human resources representative, “involved
himself” in efforts to accommodate Carter.
7The EEOC contends that Carter was also entitled to use additional “Personal Absence Allowance” (“PAA”) days, which could have allowed him to avoid the unexcused absences resulting in his termination. (This is an interesting argument, considering that the evidence shows that not long before he was terminated, Carter objected to using his “PAA” days to observe his Sabbath. Specifically, in August, 2002 he filed a grievance against Bosch in which he argued that two of the “PAA” days he had already used on his Sabbath should be “returned to him.” Exhibit 9, Appendix to EEOC’s Brief in Opposition.) However, PAA’s are covered in a separate Article of the CBA – Article XVIII – which does not address overtime. CBA at 58-60. Article XVI of the CBA, in contrast with Article XVIII, expressly addresses the subject of overtime and permits employees only 48 hours per year of unpaid leave from overtime. Carter’s attendance record seems to indicate that he was paid for his 48 hours of excused overtime, even though the CBA specifies that this time is to be treated as unpaid leave. Exhibit 7, Appendix to EEOC’s Brief in Opposition. What is clear, however, is that Carter used all of the excused overtime hours which the CBA permitted him to take.
11

The EEOC does not explain how any of these supposed “mistakes” resulted in an incorrect application of the law. In its ruling on Bosch’s motion for summary judgment, the court did not find any facts at all; rather, the court merely determined whether, as provided by Fed.R.Civ.P. 56(c), genuine issues remained as to any material facts. Not all factual disputes are “material.” Instead, materiality is define with reference to the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986).
In its decision granting summary judgment in favor of Bosch, the court did note that the parties did not dispute that the machine shop, where Carter worked, began operating “100% capacity” in July, 2002. Opinion and Order at 3. This statement is taken virtually verbatim from the EEOC’s own submissions. See Declaration of Jeffery L. Carter, Exhibit 2, Appendix to EEOC’s Brief in Opposition (docket no. 46), ¶ 7 (“In July 2002, after both plants were shut down, the Machine shop began operating in a 100% situation. This meant that the machine shop operated 24 hours a day and seven days a week, requiring mandatory overtime”); Declaration of Andre Holmes, Exhibit 3, Appendix to EEOC’s Brief in Opposition (docket no. 46), ¶ 6 (“In July 2002, after both plants were shut down, the Machine shop began operating in a 100% situation. This meant that the machine shop operated 24 hours a day and seven days a week requiring mandatory overtime for everyone in this plant”). In concluding that this factual issue was undisputed, therefore, the court viewed the facts in the light most favorable to the EEOC as non-movant.
Changing its position on the 100% overtime issue in seeking reconsideration, the EEOC now relies on different evidence on which it did not rely before, including portions of the deposition of Sharene Tyler and Gregory Hulen. However, the EEOC did not include these
12

particular pages of Tyler’s deposition (pages 63-64 and 125) or Hulen’s deposition (pages 16-18) with the previous briefs it submitted in opposition to Bosch’s motion. In further support of its new position, the EEOC also relies on portions of the deposition of Willie Dumas. However, this reliance is cumulative, insofar as the same information was supposedly included in Tyler’s deposition, which the EEOC did previously have but failed to present the relevant portions in response to Bosch’s motion. Under the circumstances, the EEOC can hardly fault the court for viewing the facts in the EEOC’s favor at the time of its ruling.
The EEOC now also argues that the court “mistakenly concluded” that no volunteers could be found to cover for Carter on his Sabbath. However, the evidence cited by the EEOC in support of its motion for reconsideration does not create an issue of fact regarding the existence of willing and able volunteers. Even the “new” evidence on which the EEOC in part relies – portions of the deposition of former Union steward Willie Dumas – indicates that the Union did not find volunteers. The court did not err in its conclusion that the evidence did not create a genuine issue of fact because it failed to show that other employees were both willing and able to volunteer for Carter on his Sabbath.
The EEOC also expresses the view that the court was under a mistaken “impression” that the Union had generated a list of volunteers but failed to present the list to Bosch before Carter was fired. In its decision, the court did refer to hearsay testimony by Carter that he had been told by Union bargaining committee member Andre Holmes that the Union had a “list” of employees who might be willing or able to work. Opinion and Order at 11. However, the court followed this reference with another reference to Holmes’ actual testimony, in which he confirmed that he
13

personally never tried to find anyone to work overtime for Carter between July and September, 2002. Id.
Because the EEOC takes the position that no list even existed (if at all) until after Carter was fired, it is unclear why the EEOC raises the issue of the supposed list in its current motion, except perhaps to point out that Holmes, who was not a union steward in the machine shop, was unlikely to have been involved in the actual process of procuring volunteers in that area. EEOC’s Brief in Support of Motion for Reconsideration at 26 n.14. The “new” testimony of Union steward Dumas confirms that he never procured a list of volunteers. In addition, the only evidence of a purported “volunteer list” the EEOC presented was an unsigned list of persons who had supposedly volunteered to work for Carter, composed after he was fired, which included persons who were qualified to work in the foundry, not in the machine shop where Carter worked at the time of his termination. Exhibit 31, EEOC’s Supplemental Brief in Opposition (docket no. 73). The EEOC has not presented either affidavits or testimony by these employees to confirm whether they would in fact have been willing and able to work Carter’s Sabbath shifts in the machine shop.8 In sum, the court was not under any mistaken impression about the availability of volunteers.
Finally, the EEOC argues that the court “mistakenly found” that company human resources representative Benson James “involved himself” in efforts to accommodate Carter. According to the EEOC, the court “misunderstood” the “dialogue” between the Union and James. EEOC’s Brief in Support of Motion for Reconsideration at 26. However, the EEOC
8As the court has already observed, see note 6 infra., the EEOC has neglected to cite to supposed “evidence” identifying volunteers.
14

points to no actual mistake of fact, nor does it show how correction of this supposed mistake requires a different disposition. Clearly, there was a dialogue between the Union and Bosch, as part of which James expressed the company’s willingness to accommodate Carter through an arrangement similar to that which had been made when Carter was employed in the foundry. The question presented by Bosch’s motion was whether Bosch had shown that it offered Carter a reasonable accommodation, not whether the company initiated a dialogue with the Union, or whether the company should have engaged in more dialogue with the Union and offered additional accommodations. The EEOC’s argument does not provided a basis for reconsideration of the court’s ruling.
Conclusion As the majority noted in Smith, Undoubtedly, 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. Other circuits have held that when an employer allows such a trade, it has reasonably accommodated its employee. 827 F.2d at 1088 (citing Brener v. Diagnostic Center Hosp., 671 F.2d 141, 146 (5th Cir. 1982) and United States v. Albuquerque, 545 F.2d 110, 114 (10th Cir. 1976)); see also Moore, 727 F. Supp. at 1160 (concluding “that the system of voluntary swaps instituted by the defendants was a reasonable accommodation,” noting existence of “considerable authority to support this position”) (citations omitted). An employer has met its obligation when it demonstrates that it has offered a reasonable accommodation to the employee. Ansonia, 479 U.S. at 69, 107 S.Ct. at 372. The EEOC and Carter have simply failed to show that a genuine issue of fact remains whether the accommodation offered – seeking qualified volunteers to work for Carter – was
15

reasonable, as it generally is under the law. Because the plaintiff and plaintiff-intervenor have not convinced the court that it erred as a matter of law in granting Bosch’s motion for summary judgment, the court DENIES their motions for reconsideration.
So ordered this 28th day of April, 2005. /s/ Wendell A. Miles Wendell A. Miles Senior U.S. District Judge
16

 
 UNI1ED STATES DISTRICT COURT
FOR THE WES1ERN DISTRICT OF MICHIGAN n SE? 2! PH 3: I 9
SOUTHERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION and JEFFREY L. CAR1ER,
Plaintiffs,
v.
~:
ROBERT BOSCH CORPORATION,
Defendant.

:.'.·~b
File No. 5:03-CV-150 HON. ROBERT HOLMES BELL

VERDICT FORM

1. Do you find from a preponderance ofthe evidence that PlaintiffJeffrey L. Carter had

a sincerely held religious beliefthat conflicted with an employment requirement?

'. I
j.

Yes

___ No

Ifyour answer to Question No.1 is "YES," proceed to answer Question No.2. Ifyour

answer to Question No.1 is "NO," then you need not answer any further questions on this

verdict form, and your verdict will be entered in favor of the defendant, Robert Bosch

Corporation.

. ,

2. Do you find by a preponderance of the evidence that Defendant Robert Bosch

Corporation failed or refused to reasonably accommodate the religious beliefs of Plaintiff

Jeffrey L. Carter? ___ Yes

~NO

Ifyour answer to Question No.2 is "YES," proceed to answer Question No.3. Ifyour answer to Question No.2 is "NO," then you need not answer any further questions on this verdict form, and your verdict will be entered in favor of the defendant, Robert Bosch Corporation.

3. Do you find that Defendant Robert Bosch Corporation proved by a preponderance of

the evidence that it was unable to accommodate Mr. Carter's religious beliefs because an

accommodation would have caused an undue hardship to the defendant's business?

___ Yes

___ No

If your answer to Question No.3 is "Yes," then you need not answer any further questions on this verdict form, and your verdict will be entered in favor of the defendant, Robert Bosch Corporation. If your answer to Question No.3 is ''No,'' then a violation of Title VII has been established and you are to proceed to answer the following questions
v:
regarding damages.

4. Do you find from a preponderance of the evidence that Plaintiff Jeffrey L. Carter

should be awarded back pay for lost wages and lost benefits?

___ Yes

___ No

If your answer is "Yes," in what amount?

5. Do you find from a preponderance of the evidence that Plaintiff Jefuey L. Carter

should be awarded compensatory damages for such harms as pain, suffering, and mental

anguish? ___ Yes

Ifyour answer is "Yes," in what amount? $- - - - - - - -

2

 
 United States District Court for the Western District of Michigan - Dock... https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?963765377665953-L_...
CLOSED, JURYTRIAL, VFM
United States District Court Western District of Michigan (Southern Division (5)) CIVIL DOCKET FOR CASE #: 5:03-cv-00150-RHB

Equal Employment Opportunity Commission v. Robert Bosch Corporation Assigned to: Chief Judge Robert Holmes Bell Case in other court: Sixth Circuit Court of Appeals, 05-01099 Cause: 28:451 Employment Discrimination

Date Filed: 09/29/2003 Date Terminated: 09/21/2006 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

plaintiff
Equal Employment Opportunity Commission

represented by Adele Rapport U.S. Equal Employment Opportunity Commission (MI) 865 Patrick V. McNamara Bldg. 477 Michigan Ave. Detroit, MI 48226 (313) 226-6701 Email: adele.rapport@eeoc.gov TERMINATED: 06/07/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dale Price U.S. Equal Employment Opportunity Commission (MI) 865 Patrick V. McNamara Bldg. 477 Michigan Ave. Detroit, MI 48226 (313) 226-7808 Email: dale.price@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

intervenor-plaintiff

Omar Weaver U.S. Equal Employment Opportunity Commission (MI) 865 Patrick V. McNamara Bldg. 477 Michigan Ave. Detroit, MI 48226 (313) 226-3407 Email: omar.weaver@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Jeff L. Carter
V. defendant Robert Bosch Corporation

represented by Vernon L. Alger P.O. Box 52 Berrien Springs, MI 49103 (269) 473-1292 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd Robert McFarland General Conference of Seventh-day Advantists Office of General Counsel 12501 Old Columbia Pike Silver Spring, MD 20904 (301) 680-6321 Email: mcfarlandt@gc.adventist.org ATTORNEY TO BE NOTICED
represented by John A. Berg Connelly Sheehan Harris 150 S Wacker Dr., Ste. 1600 Chicago, IL 60606 (312) 372-1969 Email: jberg@csh-law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Sheehan Connelly Sheehan Harris 150 S Wacker Dr., Ste. 1600 Chicago, IL 60606 (312) 372-1969 Email: msheehan@csm-law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A. Rhem Varnum Riddering Schmidt & Howlett LLP (Grand Rapids) Bridgewater Place 333 Bridge St., NW P.O. Box 352 Grand Rapids, MI 49501-0352 (616) 336-6000 Email: darhem@varnumlaw.com TERMINATED: 10/06/2006 ATTORNEY TO BE NOTICED

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mediator
Facilitative Mediator TERMINATED: 01/08/2004

Gioconda V. Iannicelli Connelly Sheehan Harris 150 S Wacker Dr., Ste. 1600 Chicago, IL 60606 (312) 372-1969 Email: jiannicelli@csm-law.com TERMINATED: 06/02/2006 ATTORNEY TO BE NOTICED
represented by Jon G. March Miller Johnson PLC (Grand Rapids) 250 Monroe Ave., NW, Ste. 800 P.O. Box 306 Grand Rapids, MI 49501-0306 (616) 831-1729 Fax: (616) 988-1729 Email: marchj@millerjohnson.com TERMINATED: 01/08/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/29/2003 09/29/2003 10/02/2003 10/27/2003 10/27/2003 10/27/2003 10/27/2003 10/28/2003 10/29/2003

#

Docket Text

1 COMPLAINT and jury demand against Robert Bosch Corporation filed by Equal Employment Opportunity Commission (cmi, ) (Entered: 10/02/2003)
SUMMONS ISSUED as to Robert Bosch Corporation (cmi, ) (Entered: 10/02/2003)
2 NOTICE REGARDING PUBLIC ACCESS directed to Adele Rapport (cmi, ) (Entered: 10/02/2003)
3 ATTORNEY APPEARANCE of David A. Rhem on behalf of defendant Robert Bosch Corporation (Rhem, David) (Entered: 10/27/2003)
4 ANSWER to complaint and Affirmative Defenses by Robert Bosch Corporation (Rhem, David) (Entered: 10/27/2003)
5 DISCLOSURE STATEMENT Pursuant to Rule 7.1 by defendant Robert Bosch Corporation (Rhem, David) (Entered: 10/27/2003)
6 CERTIFICATE OF SERVICE by defendant Robert Bosch Corporation re 3, 4, 5 (Rhem, David) (Entered: 10/27/2003)
7 NOTICE REGARDING PUBLIC ACCESS directed to David A. Rhem (bd, ) (Entered: 10/28/2003)
8 ORDER setting Rule 16 scheduling conference: Rule 16 scheduling conference is set for 11/26/2003 at 10:00 AM at 584 Federal Building, Grand Rapids, MI before Magistrate Judge Hugh W. Brenneman Jr.; joint status report due by

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11/04/2003
11/07/2003 11/07/2003 11/17/2003
12/08/2003 12/08/2003 12/09/2003
12/11/2003 12/15/2003 12/15/2003 12/15/2003 12/15/2003 12/16/2003 12/16/2003

11/21/2003 ; signed by Senior Judge Wendell A. Miles (Senior Judge Wendell A. Miles, sds) (Entered: 10/29/2003)
9 RE-NOTICE of Rule 16 scheduling conference set for 12/3/2003 at 10:00 AM at 584 Federal Building, Grand Rapids, MI before Magistrate Judge Hugh W. Brenneman Jr.; (Magistrate Judge Hugh W. Brenneman, fh) (Entered: 11/04/2003)
10 AMENDED ANSWER to complaint 4 and Affirmative Defenses filed by defendant Robert Bosch Corporation (Rhem, David) (Entered: 11/07/2003)
11 CERTIFICATE OF SERVICE by defendant Robert Bosch Corporation re 10 (Rhem, David) (Entered: 11/07/2003)
12 RE-NOTICE of Rule 16 scheduling conference set for 12/17/2003 at 10:00 AM at 584 Federal Building, Grand Rapids, MI before Magistrate Judge Hugh W. Brenneman Jr.; status report due by 12/12/2003 (Magistrate Judge Hugh W. Brenneman, fh) (Entered: 11/17/2003)
13 JOINT STATUS REPORT submitted for filing by plaintiff Equal Employment Opportunity Commission, defendant Robert Bosch Corporation (Rhem, David) (Entered: 12/08/2003)
15 ATTORNEY APPEARANCE of Omar Weaver on behalf of plaintiff Equal Employment Opportunity Commission (bd, ) (Entered: 12/10/2003)
14 AMENDED STATUS REPORT submitted for filing by plaintiff Equal Employment Opportunity Commission, defendant Robert Bosch Corporation (Rhem, David) Modified on 12/9/2003 to reflect that amendement to document was as to counsel/e-filers only per t/c w/Atty. Rhem's office(bd, ). (Entered: 12/09/2003)
16 NOTICE REGARDING PUBLIC ACCESS directed to Omar Weaver (bd, ) (Entered: 12/11/2003)
17 MOTION to intervene as Plaintiff by Jeff L. Carter (Attachments: # 1 Proposed Order) (bd, ) (Entered: 12/16/2003)
18 BRIEF in support of 17 filed by Jeff L. Carter (Attachments: # 1 Proposed Document Intervenor's Complaint and Jury Demand# 2 Proposed Document Demand for Trial by Jury) (bd, ) (Entered: 12/16/2003)
19 CERTIFICATE OF SERVICE by movant Jeff L. Carter re 17, 18 via facsimile and Federal Express on 12/12/03 (bd, ) (Entered: 12/16/2003)
21 NOTICE REGARDING PUBLIC ACCESS directed to Vernon L. Alger (bd, ) (Entered: 12/16/2003)
20 ORDER REFERRING MOTION to intervene as Plaintiff by Jeff L. Carter 17 to Magistrate Judge Hugh W. Brenneman, Jr. ; signed by Senior Judge Wendell A. Miles (Senior Judge Wendell A. Miles, sds) (Entered: 12/16/2003)
Copy of Order Referring Motion to Magistrate Judge20 sent via U.S. Mail to V. L. Alger (bd, ) (Entered: 12/16/2003)

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12/17/2003 12/17/2003
12/17/2003 12/17/2003 12/18/2003
12/19/2003 12/22/2003 12/22/2003 12/22/2003 12/22/2003 12/22/2003 12/22/2003 12/23/2003 12/23/2003 12/23/2003

22 ORDER granting 17 motion to intervene; signed by Magistrate Judge Hugh W. Brenneman Jr. (Magistrate Judge Hugh W. Brenneman, fh) (Entered: 12/17/2003)
23 MINUTES of motion hearing re pltf intervenor Jeff L. Carter's motion to intervene 17 and Rule 16 scheduling conference held before Magistrate Judge Hugh W. Brenneman Jr.; motion granted; case management order to issue by court (Tape #B03-255) (Magistrate Judge Hugh W. Brenneman, Jr., ddk) (Entered: 12/17/2003)
Copy of Order on Motion to Intervene22 sent via U.S. Mail to Vernon L. Alger (bd, ) (Entered: 12/17/2003)
24 COMPLAINT w/Jury Demand against Robert Bosch Corporation filed by Jeff L. Carter (Attachments: # 1) (bd, ) (Entered: 12/17/2003)
25 CASE MANAGEMENT ORDER: jury selection and trial set for 11/15/2004 at 9:30 AM at 236 Federal Building, Grand Rapids, MI before Senior Judge Wendell A. Miles; final pretrial conference set for 10/20/2004 at 2:00 PM at 236 Federal Building, Grand Rapids, MI before Senior Judge Wendell A. Miles; signed by Senior Judge Wendell A. Miles (Senior Judge Wendell A. Miles, sds) (Entered: 12/18/2003)
Copy of Case Management Order, 25 sent via U.S. Mail to V. Alger (bd, ) (Entered: 12/19/2003)
26 ATTORNEY APPEARANCE of Gioconda V. Iannicelli on behalf of defendant Robert Bosch Corporation (Iannicelli, Gioconda) (Entered: 12/22/2003)
27 MOTION for summary judgment by defendant Robert Bosch Corporation ; responses due 1/20/2004; (Iannicelli, Gioconda) (Entered: 12/22/2003)
28 BRIEF in support of 27 Motion for Summary Judgment filed by Robert Bosch Corporation (Iannicelli, Gioconda) (Entered: 12/22/2003)
29 EXHIBIT re 27 by defendant Robert Bosch Corporation (Attachments: # 1 Appendix Defendant's Motion for Summary Judgment) (Iannicelli, Gioconda) (Entered: 12/22/2003)
30 CERTIFICATE OF SERVICE by defendant Robert Bosch Corporation re 27 28 and 29 (Iannicelli, Gioconda) (Entered: 12/22/2003)
31 NOTICE REGARDING PUBLIC ACCESS directed to Michael J. Sheehan and Jackie V. Iannicelli (bd, ) (Entered: 12/22/2003)
32 ANSWER to complaint w/Affirmative Defenses by Intervenor Jeff L. Carter by Robert Bosch Corporation (Iannicelli, Gioconda) Modified on 12/23/2003 to reflect Affirmative Defenses (bd, ). (Entered: 12/23/2003)
33 CERTIFICATE OF SERVICE by defendant Robert Bosch Corporation re 32 (Iannicelli, Gioconda) (Entered: 12/23/2003)
34 DECLARATION of David Robbins in support of 27 motion for summary judgment by defendant Robert Bosch Corporation (mrs, ) (Entered: 12/24/2003)

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01/02/2004 01/05/2004 01/08/2004 01/08/2004
01/08/2004 01/14/2004 01/15/2004
01/15/2004 01/16/2004 01/16/2004 01/20/2004
01/20/2004 01/21/2004
01/21/2004

35 CERTIFICATE OF SERVICE by intervenor-plaintiff Jeff L. Carter for Initial Disclosures (acr, ) (Entered: 01/05/2004)
36 LETTER RETURNING DISCOVERY MATERIAL: Intervenor-Plaintiff's Initial Disclosures returned to attorney Vernon L. Alger (acr, ) (Entered: 01/05/2004)
37 CERTIFICATE OF SERVICE by defendant Robert Bosch Corporation Defendant's Initial Disclosures (Iannicelli, Gioconda) (Entered: 01/08/2004)
38 ORDER referring case to VOLUNTARY FACILITATIVE MEDIATION: w/Facilitative Mediator Jon G. March added; plaintiff VFM fee to be submitted by 1/20/2004; defendant VFM fee to be submitted by 1/20/2004 ; signed by Senior Judge Wendell A. Miles (Senior Judge Wendell A. Miles, sds) (Entered: 01/08/2004)
Copy of Order Referring Case to Voluntary Facilitative Mediation, 38 sent via U.S. Mail to V. Alger (bd, ) (Entered: 01/08/2004)
39 PROPOSED STIPULATION and ORDER to Extend Deadlines for Plaintiffs' Response Briefs and Defendant's Reply Brief by plaintiff Equal Employment Opportunity Commission (Weaver, Omar) (Entered: 01/14/2004)
40 ORDER REFERRING PROPOSED STIPULATION and ORDER to Extend Deadlines for Plaintiffs' Response Briefs and Defendant's Reply Brief by plaintiff Equal Employment Opportunity Commission 39 to Magistrate Judge Hugh W. Brenneman, Jr. ; signed by Senior Judge Wendell A. Miles (Senior Judge Wendell A. Miles, sds) (Entered: 01/15/2004)
Copy of Order Referring Motion to Magistrate Judge, 40 sent via U.S. Mail to attorney Vernon L. Alger (acr, ) (Entered: 01/15/2004)
41 ORDER granting STIPULATION 39 to extend deadlines ; signed by Magistrate Judge Hugh W. Brenneman Jr. (Magistrate Judge Hugh W. Brenneman, fh) (Entered: 01/16/2004)
Copy of Order on Stipulation and Proposed Order41 sent via U.S. Mail to V. Alger (bd, ) (Entered: 01/16/2004)
42 MOTION for extension of time to hold facilitative mediation by defendant Robert Bosch Corporation; w/Certificate of Service(Iannicelli, Gioconda) Modified on 1/21/2004 to reflect Certificate of Service included in filing (bd, ). (Entered: 01/20/2004)
44 CERTIFICATE OF SERVICE by plaintiff Equal Employment Opportunity Commission for discovery: Pltf's Rule 26 Disclosures - via first-class mail on 1/07/04 (bd, ) (Entered: 01/22/2004)
43 ORDER REFERRING STIPULATED MOTION for extension of time to hold facilitative mediation 42 to Magistrate Judge Hugh W. Brenneman, Jr. ; signed by Senior Judge Wendell A. Miles (Senior Judge Wendell A. Miles, sds) (Entered: 01/21/2004)
Copy of Order Referring Motion to Magistrate Judge43 sent via U.S. Mail to V. Alger (bd, ) (Entered: 01/21/2004)

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01/22/2004
01/22/2004 01/23/2004
01/23/2004 01/23/2004 01/23/2004 01/23/2004 01/28/2004 02/02/2004 02/02/2004 02/02/2004 02/04/2004 02/04/2004 02/06/2004

45 ORDER granting 42 motion for extension of time; time within which facilitative mediation shall take place is extended until 5/30/2004; signed by Magistrate Judge Hugh W. Brenneman Jr. (Magistrate Judge Hugh W. Brenneman, fh) (Entered: 01/22/2004)
Copy of Order on Motion for Extension of Time45 sent via U.S. Mail to V. Alger (bd, ) (Entered: 01/22/2004)
46 RESPONSE in opposition re 27 filed by Equal Employment Opportunity Commission (Attachments: # 1 Appendix w/Certificate of Service# 2 Ex. 1# 3 Ex. 2# 4 Ex. 3# 5 Ex. 4# 6 Ex. 5# 7 Ex. 6# 8 Ex. 7# 9 Ex. 8# 10 Ex. 9# 11 Ex. 10# 12 Ex. 11# 13 Ex. 12# 14 Ex. 13# 15 Ex. 14# 16 Ex. 15# 17 Ex. 16) (bd, ) (Entered: 01/26/2004)
47 CERTIFICATE OF SERVICE by plaintiff Equal Employment Opportunity Commission re 46 via first-class mail on 1/23/04 (bd, ) (Entered: 01/26/2004)
48 RESPONSE to motion re 27 motion for summary judgment filed by Jeff L. Carter (acr, ) (Entered: 01/27/2004)
49 BRIEF by intervenor-plaintiff Jeff L. Carter in support of response to defendant's motion for summary judgment (acr, ) (Entered: 01/27/2004)
50 CERTIFICATE OF SERVICE by intervenor-plaintiff Jeff L. Carter re 49, 48 response to motion for summary judgment, brief in support and this certificate of service (acr, ) (Entered: 01/27/2004)
51 SUPPLEMENT re 49 including Declarations of: Jeffery L. Carter, Andre Holmes and Sharene Tyler by intervenor-plaintiff Jeff L. Carter (bd, ) (Entered: 02/03/2004)
VFM FEE RECEIVED in the amount of $25.00, check number 11705 for payment of Defendant Robert Bosch Corporation's VFM fee (Related document(s),38) (ADR Administrator, mjs) (Entered: 02/02/2004)
VFM FEE RECEIVED in the amount of $12.50, check number 1947 for payment of Intervenor-Plaintiff Jeff L. Carter's portion of the VFM fee (ADR Administrator, mjs) (Entered: 02/02/2004)
VFM FEE RECEIVED in the amount of $12.50, check number 1947 for payment of Intervenor-Plaintiff Jeff L. Carter's portion of the VFM fee (ADR Administrator, mjs) (Entered: 02/02/2004)
53 PROOF OF SERVICE by plaintiff Equal Employment Opportunity Commission for discovery: Plaintiff's Rule 26(a)(2) Disclosures of Expert Witness - via first-class mail on 2/2/04 (bd, ) (Entered: 02/12/2004)
54 CERTIFICATE OF SERVICE by plaintiff Equal Employment Opportunity Commission for discovery: Plaintiff's Rule 26(a)(2) Disclosures of Expert Witness via first-class mail on 2/2/04 (bd, ) (Entered: 02/17/2004)
52 MOTION to Hold Summary Judgment in Abeyance (until May 30, 2004) by defendant Robert Bosch Corporation; w/Certificate of Service (Iannicelli, Gioconda) Modified on 2/6/2004 editing text of docket entry (bd, ). (Entered: 02/06/2004)

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02/20/2004 02/24/2004
03/01/2004
03/02/2004 03/04/2004 03/04/2004 03/08/2004 03/08/2004 03/15/2004 03/22/2004 04/01/2004 04/02/2004

55 RESPONSE in opposition re 52 Defendant's Motion to Hold Summary Judgment in Abeyance filed by Equal Employment Opportunity Commission (Weaver, Omar) Modified on 2/23/2004 to reflect w/Certificate of Service (bd, ). (Entered: 02/20/2004)
56 MOTION for leave to file Reply Brief Supporting Motion to Hold Summary Judgment in Abeyance w/Proof of Service by defendant Robert Bosch Corporation ; (Attachments: # 1 Proposed Document Reply Brief) (Iannicelli, Gioconda) Modified on 2/25/2004 to edit text re Proof of Service(bd, ). (Entered: 02/24/2004)
57 ORDER granting defendant's motion to hold summary judgment in abeyance until 5/30/04; any supplemental briefs in opposition to the motion for summary judgment 27 shall be filed by 5/30/04; with reply briefs due 14 days after service of any supplemental opposition briefs 52 56 ; signed by Senior Judge Wendell A. Miles (Senior Judge Wendell A. Miles, sds) (Entered: 03/01/2004)
Copy of Order on Motion to Continue,, Order on Motion for Leave to File,, Order on Motion for Summary Judgment, 57 sent via U.S. Mail to Vernon L. Alger (bd, ) (Entered: 03/02/2004)
58 CERTIFICATE OF SERVICE by plaintiff Equal Employment Opportunity Commission for discovery: Plaintiff's Supplemental Rule 26(a)(2) Disclosures via first-class mail on 3/02/04 (bd, ) Modified on 3/5/2004 to edit the date of filing (bd, ). (Entered: 03/05/2004)
59 CERTIFICATE OF SERVICE by plaintiff Equal Employment Opportunity Commission for discovery: Plaintiff's First Set of Interrogatories and Requests to Produce Documents via first-class mail on 3/2/04 (bd, ) (Entered: 03/05/2004)
VFM FEE RECEIVED in the amount of $12.50, check number 117 for payment of Plaintiff Equal Employment Opportunity Commission's portion of the VFM fee (Related document(s),38) (ADR Administrator, mjs) (Entered: 03/08/2004)
60 CERTIFICATE OF SERVICE by plaintiff Equal Employment Opportunity Commission for discovery: Notice for the Depositions of Sandra Nedoba, Al Hemmerling, Benson James, David Robbins, Jeff Sistrunk, Chet Smothers and Randy Gaytan - via first-class mail on 3/3/04 (bd, ) (Entered: 03/09/2004)
61 CERTIFICATE OF SERVICE by plaintiff Equal Employment Opportunity Commission regarding re-notice for the depositons of Sandra Nedoba an Al Hemmerling (mrs, ) (Entered: 03/18/2004)
62 CERTIFICATE OF SERVICE by plaintiff Equal Employment Opportunity Commission for re-notice for the deposition of Benson James and Randy Gaytan (mrs, ) (Entered: 03/26/2004)
63 CERTIFICATE OF SERVICE by plaintiff Equal Employment Opportunity Commission for second set of interrogatories and request to produce documents and first set of requests for admissions (mrs, ) Modified on 4/2/2004 to correct text (mrs, ). (Entered: 04/02/2004)
64 CERTIFICATE OF SERVICE by plaintiff Equal Employment Opportunity Commission for re-notices of the deposition of David Robbins and Greg Hulen (mrs, ) (Entered: 04/06/2004)

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04/29/2004 04/29/2004 04/30/2004 05/03/2004 05/24/2004
05/26/2004 05/27/2004 05/28/2004
06/02/2004
06/02/2004 06/04/2004 06/04/2004
06/04/2004 06/08/2004

65 PROPOSED STIPULATION and ORDER for Leave to Depose Witnesses After Close of Discovery by plaintiff Equal Employment Opportunity Commission (Weaver, Omar) (Entered: 04/29/2004)
66 PROPOSED STIPULATION and ORDER For Leave to Depose Witnesses After Close of Discovery (Signed) by plaintiff Equal Employment Opportunity Commission (Weaver, Omar) (Entered: 04/29/2004)
67 ORDER granting STIPULATION for leave to depose witnesses after the close of discovery 66 ; signed by Senior Judge Wendell A. Miles (Senior Judge Wendell A. Miles, sds) (Entered: 04/30/2004)
Copy of Order on Stipulation and Proposed Order, 67 sent via U.S. Mail to atty Alger (mrs, ) (Entered: 05/03/2004)
68 PROPOSED STIPULATION and ORDER for leave to serve subpoena for deposition of Willie Dumas by way of substituted service by plaintiff Equal Employment Opportunity Commission, defendant Robert Bosch Corporation (Attachments: # 1 Exhibit 1) (mrs, ) (Entered: 05/25/2004)
69 ORDER granting STIPULATION for leave to serve subpoena for deposition of Willie Dumas by way of substituted service 68 ; signed by Senior Judge Wendell A. Miles (Senior Judge Wendell A. Miles, sds) (Entered: 05/26/2004)
Copy of Order on Stipulation and Proposed Order69 sent via U.S. Mail to Vernon Alger (mrs, ) (Entered: 05/27/2004)
70 PROPOSED STIPULATION and ORDER to EXTEND DEADLINE FOR PLAINTIFFS' SUPPLEMENTAL RESPONSE BRIEFS AND DEFENDANT'S REPLY BRIEF by plaintiff Equal Employment Opportunity Commission (Weaver, Omar) (Entered: 05/28/2004)
71 ORDER granting STIPULATION to extend deadlines to 6/4/04 for plaintiffs' supplemental response brief and to 6/21/04 for defendant's reply brief 70 ; signed by Senior Judge Wendell A. Miles (Senior Judge Wendell A. Miles, sds) (Entered: 06/02/2004)
Copy of Order on Stipulation and Proposed Order71 sent via U.S. Mail to atty Alger (mrs, ) (Entered: 06/02/2004)
72 RESPONSE in opposition re 27 Defendant's Motion for Summary Judgment filed by Equal Employment Opportunity Commission (Weaver, Omar) (Entered: 06/04/2004)
73 SUPPLEMENT re 48 response to defendant's motion for summary judgment (supplement entitled Supplemental Brief in Support of Intervenor-Plaintiff's Answer to Defendant's Motion for Summary Judgment) by intervenor-plaintiff Jeff L. Carter (Attachments: # 1 Exhibit A) (mrs, ) (Entered: 06/07/2004)
74 CERTIFICATE OF SERVICE by intervenor-plaintiff Jeff L. Carter re 73 (mrs, ) (Entered: 06/07/2004)
75 APPENDIX re 73 Supplemental Brief in Opposition to Defendant's Motion for Summary Judgment) by plaintiff Equal Employment Opportunity Commission (Attachments: # 1 Exhibit 17# 2 Exhibit 18# 3 Exhibit 19# 4 Exhibit 20# 5

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06/08/2004 06/08/2004 06/17/2004
06/17/2004 10/19/2004
10/19/2004 10/21/2004 10/21/2004
10/21/2004 11/05/2004 11/09/2004 11/09/2004 11/09/2004

Exhibit 21# 6 Exhibit 22# 7 Exhibit 23# 8 Exhibit 24# 9 Exhibit 25# 10 Exhibit 26# 11 Exhibit 27# 12 Exhibit 28# 13 Exhibit 29# 14 Exhibit 30# 15 Exhibit 31# 16 Exhibit 32# 17 Exhibit 33# 18 Exhibit 34# 19 Exhibit 35) (mrs, ) (Entered: 06/09/2004)
76 CERTIFICATE OF SERVICE by plaintiff Equal Employment Opportunity Commission re 75 (mrs, ) (Entered: 06/09/2004)
77 CERTIFICATE OF SERVICE by plaintiff Equal Employment Opportunity Commission re 73 (mrs, ) (Entered: 06/09/2004)
78 REPLY to response to motion re 27 summary judgment filed by Robert Bosch Corporation (Attachments: # 1 Exhibit 5# 2 Exhibit 6# 3 Exhibit 13# 4 Exhibit 16# 5 Exhibit 18# 6 Exhibit 42# 7 Exhibit Tyler Deposition# 8 Exhibit Carter Deposition# 9 Exhibit Holmes Deposition) (Iannicelli, Gioconda) (Entered: 06/17/2004)
79 CERTIFICATE OF SERVICE by defendant Robert Bosch Corporation Reply Brief Supporting Bosch's Motion for Summary Judgment (Iannicelli, Gioconda) (Entered: 06/17/2004)
Remark: The final pretrial set for Wednesday, October 20, 2004 has been adjourned, pursuant to the stipulation of the parties. The parties are still expected to file their stipulation with the court. (Senior Judge Wendell A. Miles, sds) (Entered: 10/19/2004)
80 PROPOSED STIPULATION and ORDER by intervenor-plaintiff Jeff L. Carter, plaintiff Equal Employment Opportunity Commission, defendant Robert Bosch Corporation (Rhem, David) (Entered: 10/19/2004)
81 OPINION AND ORDER granting defendant's motion for summary judgment 27 ; signed by Senior Judge Wendell A. Miles (Senior Judge Wendell A. Miles, sds) (Entered: 10/21/2004)
82 JUDGMENT in favor of defendant Robert Bosch Corporation against both plaintiff EEOC and plaintiff-intervenor Jeff L. Carter; case dismissed with prejudice ; signed by Senior Judge Wendell A. Miles (Senior Judge Wendell A. Miles, sds) (Entered: 10/21/2004)
Copy of Order on Stipulation and Proposed Order, Order on Motion for Summary Judgment81, Judgment82 sent via U.S. Mail to Vernon Alger (mrs, ) (Entered: 10/21/2004)
83 LETTER from counsel for plaintiff confirming defendant's agreement to an extension of time to 11/9/04 for plaintiff to file its motion for reconsideration (sds, ) (Entered: 11/05/2004)
84 MOTION for reconsideration re 82 as stated in the pleadings of the plaintiff by intervenor-plaintiff Jeff L. Carter ; (mrs, ) (Entered: 11/09/2004)
85 PROOF OF SERVICE by intervenor-plaintiff Jeff L. Carter re 84 (mrs, ) (Entered: 11/09/2004)
86 MOTION for bill of costs by defendant Robert Bosch Corporation ; (Attachments: # 1 Appendix Itemization of Costs# 2 Financial Documents

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11/09/2004 11/09/2004
11/12/2004 11/12/2004 11/12/2004
11/12/2004 12/03/2004 12/17/2004 01/21/2005 01/24/2005 04/28/2005 04/29/2005 05/03/2005 02/27/2006 04/21/2006

Invoices) (Iannicelli, Gioconda) (Entered: 11/09/2004)
87 [BRIEF IN SUPPORT OF] MOTION for reconsideration re 82 Order Granting Summary Judgment by plaintiff Equal Employment Opportunity Commission ; (Weaver, Omar) Modified on 4/12/2005 to clarify (sds, ). (Entered: 11/09/2004)
88 [DISREGARD--Misdated--SEE CORRECTED MOTION 89] MOTION for reconsideration re 82 Summary Judgment for Defendant by plaintiff Equal Employment Opportunity Commission ; (Weaver, Omar) Modified on 4/12/2005 to clarify pending motions (sds, ). (Entered: 11/09/2004)
89 [CORRECTED] MOTION for reconsideration re 82 judgment by plaintiff Equal Employment Opportunity Commission ; (mrs, ) Modified on 4/12/2005 to clarify pending motions (sds, ). (Entered: 11/12/2004)
90 BRIEF in support of 89 motion for reconsideration filed by Equal Employment Opportunity Commission (mrs, ) (Entered: 11/12/2004)
91 APPENDIX re 90 brief in support of motion for reconsideration by plaintiff Equal Employment Opportunity Commission (Attachments:, # 1 Exhibit 36 Dumas Deposition, # 2 Exhibit 37 Tyler Deposition, # 3 Exhibit 38 James Deposition, # 4 Exhibit 39 Holmes Deposition, # 5 Exhibit 40 Hulen Deposition) (mrs, ) (Entered: 11/12/2004)
92 CERTIFICATE OF SERVICE by plaintiff Equal Employment Opportunity Commission re 91 (mrs, ) (Entered: 11/12/2004)
93 TAXED BILL OF COSTS filed by the Clerk of Court against Plaintiffs (skr) (Entered: 12/03/2004)
94 NOTICE OF APPEAL re 81, 82 by plaintiff Equal Employment Opportunity Commission (Weaver, Omar) (Entered: 12/17/2004)
CASE NUMBER 05-1099 assigned by Sixth Circuit Court of Appeals to appeal 94 (kad, ) (Entered: 01/24/2005)
95 LETTER FROM CCA regarding deficiency re appeal 94 indicating that the appeal will be held in abeyance until the matter has been resolved and jurisdiction has been transferred to CCA (elc, ) (Entered: 01/26/2005)
96 OPINION AND ORDER denying plaintiff EEOC's motion for reconsideration 89 ; signed by Senior Judge Wendell A. Miles (Senior Judge Wendell A. Miles, sds) (Entered: 04/28/2005)
Copy of Order on Motion for Reconsideration96 sent via U.S. Mail to Vernon Alger (mrs, ) (Entered: 04/29/2005)
Copy of Order on Motion for Reconsideration96 faxed to Court of Appeals (mrs, ) (Entered: 05/03/2005)
97 INFORMATION COPY from USCA re judgment 81, 82 ; case is remanded to the District Court for trial (elc, ) (Entered: 03/01/2006)
98 MANDATE of USCA re appeal 94 ; case is remanded to the District Court for trial (elc, ) (Entered: 04/25/2006)

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05/09/2006 06/02/2006 06/05/2006 06/05/2006 06/05/2006 06/05/2006
06/07/2006 06/12/2006 06/15/2006
06/15/2006 06/28/2006 06/28/2006

99 SECOND CASE MANAGEMENT ORDER: final pretrial conference set for 6/12/2006 at 2:00 PM at 236 Federal Building, Grand Rapids, MI before Senior Judge Wendell A. Miles; date for jury trial will be determined at the final pretrial ; signed by Senior Judge Wendell A. Miles (Senior Judge Wendell A. Miles, sds) (Entered: 05/09/2006)
Copy of Case Management Order, 99 sent via U.S. Mail to Vernon L. Alger (ghl, ) (Entered: 05/09/2006)
100 ATTORNEY SUBSTITUTION adding attorney John A. Berg in the place of Jackie V. Iannicelli (Attachments: # 1 Exhibit A# 2 Exhibit B) (Sheehan, Michael) (Entered: 06/02/2006)
101 PROPOSED PRETRIAL ORDER (FINAL) by plaintiff Equal Employment Opportunity Commission, intervenor-plaintiff Jeff L. Carter, defendant Robert Bosch Corporation (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E) (Berg, John) (Entered: 06/05/2006)
102 MOTION in limine to Exclude Evidence Relating to the Alleged Denial of Vacation by defendant Robert Bosch Corporation; (Berg, John) (Entered: 06/05/2006)
103 MOTION in limine to Exclude Evidence Relating to Punitive Damages Unless and Until the Court Finds Punitive Damages Appropriate by defendant Robert Bosch Corporation; (Berg, John) (Entered: 06/05/2006)
104 MOTION in limine to Exclude Evidence and Bar Recovery of Lost Wages or Benefits After Defendant's Unconditional Offer of Reinstatement by defendant Robert Bosch Corporation; (Attachments: # 1 Exhibit Carter Deposition Transcript# 2 Exhibit Holmes Deposition Transcript) (Berg, John) (Entered: 06/05/2006)
105 NOTICE of withdrawal of Counsel by plaintiff Equal Employment Opportunity Commission (Rapport, Adele) (Entered: 06/07/2006)
106 MINUTES of final pretrial conference held before Senior Judge Wendell A. Miles (Recorded on Tape Nos. 06-08 and 06-09) (sds, ) (Entered: 06/14/2006)
107 NOTICE OF HEARING: jury selection and trial set for 9/18/2006 at 9:30 AM at 236 Federal Building, Grand Rapids, MI before Senior Judge Wendell A. Miles; plaintiff's response to defendant's motions in limine due by July 17, 2006; defendant's reply brief due by July 31, 2006. Plaintiff's motions in limine due by July 17, 2006; defendant's response due by July 31, 2006. Proposed jury verdict form due by July 17, 2006. (sds, ) (Entered: 06/15/2006)
Copy of Notice of Hearing, 107 sent via U.S. Mail to Vernon L. Alger (ghl, ) (Entered: 06/15/2006)
108 ORDER FOR ENTRY OF PROPOSED FINAL PRETRIAL ORDER 101 ; signed by Senior Judge Wendell A. Miles (Senior Judge Wendell A. Miles, sds) (Entered: 06/28/2006)
Copy of Order108 sent via U.S. Mail to Vernon L. Alger (ghl, ) (Entered: 06/28/2006)

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06/28/2006 06/29/2006 07/17/2006 07/17/2006 07/17/2006
07/17/2006 07/17/2006 07/25/2006 07/25/2006 07/31/2006
07/31/2006
07/31/2006

109 FINAL PRETRIAL ORDER ; signed by Senior Judge Wendell A. Miles (Attachments:, # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E) (Senior Judge Wendell A. Miles, sds) (Entered: 06/28/2006)
Copy of Pretrial Order109 sent via U.S. Mail to Vernon L. Alger (ghl, ) (Entered: 06/29/2006)
110 PROPOSED VERDICT FORM by defendant Robert Bosch Corporation (Attachments: # 1 Exhibit A# 2 Exhibit B) (Berg, John) (Entered: 07/17/2006)
111 RESPONSE in opposition re 102 Defendant's Motion to Exclude Evidence Regarding Denial of Vacation filed by Equal Employment Opportunity Commission (Attachments: # 1 Exhibit No. 1, Affidavit of D. Robbins# 2 Exhibit No. 2, Deposition of J. Carter) (Weaver, Omar) (Entered: 07/17/2006)
112 RESPONSE in opposition re 104 Defendant's Motion in Limine to Exclude Evidence and Bar Recovery of Lost Wages or Benefits After Offer of Reinstatement filed by Equal Employment Opportunity Commission (Attachments: # 1 Exhibit No. 1, Feb 28th MOA# 2 Exhibit No. 2, Deposition of J. Carter# 3 Exhibit No. 3, Deposition of S. Tyler# 4 Exhibit No. 4, Termination Letter# 5 Exhibit No. 5, January 20th MOA) (Weaver, Omar) (Entered: 07/17/2006)
113 RESPONSE in opposition re 103 Defendant's Motion in Limine to Exclude Evidence Relating to Punitive Damages Unless/Until the Court Finds Punitive Damages Appropriate filed by Equal Employment Opportunity Commission (Weaver, Omar) (Entered: 07/17/2006)
114 MOTION in limine To Exclude Evidence Relating to Staffing Manpower Personnel and Production by plaintiff Equal Employment Opportunity Commission; (Weaver, Omar) (Entered: 07/17/2006)
115 NOTICE OF RECUSAL; signed by Senior Judge Wendell A. Miles (Senior Judge Wendell A. Miles, sds) (Entered: 07/25/2006)
Copy of Notice (Other)115 sent via U.S. Mail to Vernon L. Alger (ghl, ) (Entered: 07/25/2006)
116 RESPONSE in support re 104 Defendant's Motion in Limine to Exclude Evidence and Bar Recovery of Lost Wages or Benefits After Defendant's Unconditional Offer of Reinstatement filed by Robert Bosch Corporation (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7) (Berg, John) Modified on 8/1/2006 to edit text (gjf, ). (Entered: 07/31/2006)
117 RESPONSE in support re 103 Defendant's Motion in Limine to Exclude Evidence Relating to Punitive Damages Unless and Until the Court Finds Punitive Damages Appropriate filed by Robert Bosch Corporation (Attachments: # 1 Exhibit 1# 2 Exhibit 2) (Berg, John) Modified on 8/1/2006 to edit text (gjf, ). (Entered: 07/31/2006)
118 RESPONSE in support re 102 Motion in Limine Relating to the Alleged Denial of Vacation filed by Robert Bosch Corporation (Attachments: # 1 Exhibit 1# 2 Exhibit 2) (Berg, John) (Entered: 07/31/2006)

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07/31/2006 07/31/2006 08/01/2006 08/02/2006
08/03/2006 08/17/2006 08/30/2006 09/06/2006 09/07/2006 09/07/2006 09/12/2006 09/12/2006 09/13/2006

119 RESPONSE in opposition re 114 Plaintiff?s Motion in Limine To Exclude Evidence Relating To Staffing, Manpower Personnel and Production filed by Robert Bosch Corporation (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6) (Berg, John) (Entered: 07/31/2006)
120 ADMINISTRATIVE ORDER No. 06-075 that this case is reassigned to Chief Judge Robert Holmes Bell for all further proceedings ; signed by Chief Judge Robert Holmes Bell (ghl, ) (Entered: 08/01/2006)
Copy of Administrative Order Reassigning Case120 sent via U.S. Mail to Vernon L. Alger (ghl, ) (Entered: 08/01/2006)
121 CASE MANAGEMENT ORDER: jury trial set for 9/18/2006 at 9:00 a.m. at 601 Federal Building, Grand Rapids, MI before Chief Judge Robert Holmes Bell; final pretrial conference set for 9/6/2006 at 1:30 p.m. at 601 Federal Building, Grand Rapids, MI before Chief Judge Robert Holmes Bell; signed by Chief Judge Robert Holmes Bell (Chief Judge Robert Holmes Bell, kcb) (Entered: 08/02/2006)
Copy of Case Management Order 121 sent via U.S. Mail to Vernon Alger (gjf, ) (Entered: 08/03/2006)
122 REPLY to response to motion re 114 Exclusion of Evidence Relating to Staffing, Manpower, Personnel and Production filed by Equal Employment Opportunity Commission (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5) (Weaver, Omar) (Entered: 08/17/2006)
123 ATTORNEY APPEARANCE of Todd Robert McFarland on behalf of intervenor-plaintiff Jeff L. Carter with certificate of service (McFarland, Todd) Modified on 8/31/2006 to add text (gjf). (Entered: 08/30/2006)
124 MINUTES of final pretrial conference; 102 re vacation denied; 103 re punitive damages granted; 104 re reinstatement denied; 114 re staffing and production denied; held before Chief Judge Robert Holmes Bell (Court Reporter: Kevin Gaugier) (Chief Judge Robert Holmes Bell, ymc) (Entered: 09/06/2006)
125 ORDER denying 102 motion in limine, granting 103 motion in limine, denying 104 motion in limine, denying 114 motion in limine ; signed by Chief Judge Robert Holmes Bell (Chief Judge Robert Holmes Bell, kcb) (Entered: 09/07/2006)
Copy of Order on Motion in Limine 125 sent via U.S. Mail to Attorney Alger (gjf) (Entered: 09/07/2006)
126 MOTION in limine to Exclude Evidence of Future Lost Wages with certificate of service by defendant Robert Bosch Corporation; (Attachments: # 1 Exhibit A) (Berg, John) Modified on 9/13/2006 to add text (gjf). (Entered: 09/12/2006)
127 RESPONSE in opposition re 126 Defendant's Motion to Exclude Evidence of Future Lost Wages filed by Equal Employment Opportunity Commission (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4) (Weaver, Omar) (Entered: 09/12/2006)
128 PROPOSED VOIR DIRE by plaintiff Equal Employment Opportunity Commission (Price, Dale) (Entered: 09/13/2006)

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09/13/2006 09/13/2006 09/13/2006 09/13/2006
09/15/2006 09/17/2006 09/18/2006 09/19/2006
09/19/2006 09/20/2006 09/20/2006 09/21/2006 09/21/2006

129 TRIAL BRIEF by defendant Robert Bosch Corporation (Berg, John) (Entered: 09/13/2006)
130 PROPOSED VOIR DIRE by defendant Robert Bosch Corporation (Berg, John) (Entered: 09/13/2006)
131 TRIAL BRIEF by plaintiff Equal Employment Opportunity Commission (Weaver, Omar) (Entered: 09/13/2006)
132 NOTICE OF FILING by defendant Robert Bosch Corporation (Attachments: # 1 Exhibit A: Joint Proposed Jury Instructions# 2 Exhibit B: Plaintiffs Proposed Jury Instructions# 3 Exhibit C: Defendants Proposed Jury Instructions# 4 Exhibit D: Plaintiffs Objections# 5 Exhibit E: Defendants Objections# 6 Exhibit F: Plaintiffs Statement of the Case# 7 Exhibit G: Defendants Statement of the Case# 8 Exhibit H: Defendants Amended Exhibit List) (Berg, John) (Entered: 09/13/2006)
133 REPLY in support re 126 Defendant's Motion In Limine to Exclude Evidence of Future Lost Wages with certificate of service filed by Robert Bosch Corporation (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C) (Berg, John) Modified on 9/18/2006 to edit and add text (gjf). (Entered: 09/15/2006)
134 RENEWED MOTION in limine to Exclude Evidence and Bar Recovery of Lost Wages or Benefits with certificate of service by defendant Robert Bosch Corporation; (Berg, John) Modified on 9/18/2006 to edit and add text (gjf). (Entered: 09/17/2006)
135 MINUTES of jury trial, day 1, held before Chief Judge Robert Holmes Bell (Court Reporter: Kevin Gaugier) (Chief Judge Robert Holmes Bell, sdb) (Entered: 09/19/2006)
136 ORDER granting 126 Defendant Bosch's motion in limine to exclude evidence of future lost wages, denying 134 Defendant Bosch's motion in limine to exclude evidence and to bar recovery of lost wages or benefits; signed by Chief Judge Robert Holmes Bell (Chief Judge Robert Holmes Bell, ymc) Modified on 9/21/2006 to edit text (gjf). (Entered: 09/19/2006)
137 MINUTES of jury trial, day 2, held before Chief Judge Robert Holmes Bell (Court Reporter: Kevin Gaugier) (Chief Judge Robert Holmes Bell, sdb) (Entered: 09/20/2006)
Copy of Order on Motion in Limine 136 sent via U.S. Mail to Attorney Alger (gjf) (Entered: 09/20/2006)
138 MINUTES of jury trial, day 3, held before Chief Judge Robert Holmes Bell (Court Reporter: Kevin Gaugier) (Chief Judge Robert Holmes Bell, sdb) (Entered: 09/20/2006)
139 JUDGMENT in favor of Defendant pursuant to the Verdict Form; signed by Chief Judge Robert Holmes Bell (Chief Judge Robert Holmes Bell, ymc) (Entered: 09/21/2006)
140 MINUTES of jury trial completed held before Chief Judge Robert Holmes Bell (Court Reporter: Kevin Gaugier) (Chief Judge Robert Holmes Bell, sdb) (Entered: 09/21/2006)

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141 JURY VERDICT (gjf, ) (Entered: 09/21/2006)
Copy of Judgment 139 sent via U.S. Mail to Attorney Alger (gjf) (Entered: 09/22/2006)
142 NOTICE of Withdrawal of Local Counsel by defendant Robert Bosch Corporation (Rhem, David) (Entered: 10/06/2006)
143 BILL OF COSTS (PROPOSED) by defendant Robert Bosch Corporation (Attachments: # 1 Exhibit A-Itemized statement/receipts) (Berg, John) (Entered: 10/20/2006)
144 TAXED BILL OF COSTS filed by the Clerk of Court (mjs) (Entered: 11/09/2006)

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 E.E.O.C. v. Robert Bosch Corp., 169 Fed.Appx. 942 (2006)

169 Fed.Appx. 942 This case was not selected for publication in the
Federal Reporter. Not for Publication in West’s Federal Reporter See
Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or
after Jan. 1, 2007. See also Sixth Circuit Rule 28. (Find CTA6 Rule 28)
United States Court of Appeals, Sixth Circuit.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and Jeffrey L. Carter, Intervenor, v.
ROBERT BOSCH CORP., Defendant-Appellee.
No. 05-1099. | Feb. 21, 2006.
Synopsis Background: Equal Employment Opportunity Commission (EEOC) brought Title VII religious discrimination case against employer on behalf of employee who was discharged for unexcused absences on his day of worship. The United States District Court for the Western District of Michigan granted summary judgment for employer. EEOC appealed.
Holding: The Court of Appeals, Merritt, Circuit Judge, held that fact question as to what employer was willing to do to accommodate employee precluded summary judgment.
Reversed and remanded.
*943 On Appeal from the United States District Court for the Western District of Michigan.
Attorneys and Law Firms
Susan L. Starr, Equal Employment Opportunity Commission, Office of General Counsel, Washington, DC, Omar Weaver, Equal Employment Opportunity Commission, Detroit District Office, Detroit, MI, for Plaintiff-Appellant.
Michael J. Sheehan, Connelly, Sheehan & Moran, Chicago, IL, for Defendant-Appellee.
Before: MERRITT, MARTIN, and GILMAN, Circuit

Judges.
Opinion
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 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 *944 11:00 P.M. on Friday to 7:00 A.M. on Saturday, obviously in conflict with his Sabbath observance. The company put
1

E.E.O.C. v. Robert Bosch Corp., 169 Fed.Appx. 942 (2006)
the burden on Carter and his union to find a substitute. They were unable to do so, and Carter was fired. Following unsuccessful 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.
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 *945 swaps during daily roll calls and on the employer’s bulletin board. See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 77, 97 S.Ct. 2264, 53 L.Ed.2d 113 (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
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E.E.O.C. v. Robert Bosch Corp., 169 Fed.Appx. 942 (2006)
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 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 *946 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.
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.
Parallel Citations
2006 WL 406296 (C.A.6 (Mich.)), 2006 Fed.App. 0138N
	  

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