UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-1897

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff – Appellant,

v.

THOMPSON CONTRACTING, GRADING, PAVING, AND UTILITIES, 

INCORPORATED,

Defendant – Appellee.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. Terrence W. Boyle,

District Judge. (5:05-cv-00675-BO)

Argued: October 23, 2012 Decided: December 14, 2012

Before NIEMEYER, KING, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Susan Ruth Oxford, EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION, Washington, D.C., for Appellant. Michael Coghlan 

Lord, WILLIAMS MULLEN, Raleigh, North Carolina, for Appellee. 

ON BRIEF: P. David Lopez, General Counsel, Carolyn L. Wheeler, 

Acting Associate General Counsel, Lorraine C. Davis, Assistant 

General Counsel, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 

Washington, D.C., for Appellant.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

The Equal Employment Opportunity Commission (the “EEOC”)

appeals the district court’s award of summary judgment to

Thompson Contracting, Grading, Paving, and Utilities, 

Incorporated, in these Title VII proceedings. In September 

2005, the EEOC initiated this action in the Eastern District of 

North Carolina, alleging that Thompson Contracting had violated 

Title VII by failing to accommodate the Saturday Sabbath 

observance of a former employee named Banayah Yisrael, an 

adherent of the Hebrew Israelite faith who had been a dump truck 

driver for Thompson. The court rejected the EEOC’s claim, 

concluding that Thompson had not breached its Title VII 

obligations. See EEOC v. Thompson Contracting, Grading, Paving, 

& Utils., Inc., 793 F. Supp. 2d 738 (E.D.N.C. 2011). As 

explained below, we affirm.

I.

A.

1.

Thompson Contracting was a construction contractor that 

provided grading, paving, and utility services for 
3

transportation projects in eastern North Carolina.1 During the 

relevant period, Thompson operated on a normal workweek of

Monday through Friday, but its operations were weather-sensitive 

and largely dependent on soil conditions. In order to meet 

project deadlines and make up for days lost due to bad weather, 

Thompson’s employees were frequently required to work on

Saturday.

Thompson Contracting normally had approximately 250

employees, roughly 200 of whom were general equipment operators

who ran various machines and vehicles not requiring a commercial 

driver’s license (“CDL”). Additionally, Thompson usually owned

about eight vehicles whose drivers were obliged to maintain a 

CDL: five dump trucks, a water truck, and two lowboys (flat 

trailers that transport heavy equipment). A CDL driver is a 

specialty position, and Thompson employed approximately eight 

CDL drivers.

It was not uncommon for Thompson Contracting to rent 

additional dump trucks to assist with large hauling operations. 

To meet such needs, Thompson would hire “independent contractor” 

dump trucks, which cost from $50 to $100 per hour each. On a

 1 The facts spelled out herein are drawn from the record 

compiled in the district court, and they are recited in the 

light most favorable to the EEOC, as the nonmoving party. See

EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir. 

2005).
4

busy day, Thompson would utilize as many as forty-five

independent contractor dump trucks.

2.

As an adherent of the Hebrew Israelite faith, Mr. Yisrael 

observed his Sabbath on Saturday. Yisrael’s Sabbath observance

required him to refrain from working between sunrise and sunset. 

Thompson Contracting twice employed Yisrael as a dump truck 

driver, hiring him first in June 2004. During Yisrael’s initial

period of employment, Thompson became aware of his religious 

beliefs, scheduled him to work on only one Saturday, and did not 

discipline him for his absence on that occasion. In September 

2004, however, Yisrael tested positive for marijuana and was 

terminated.

In November 2004, Yisrael reapplied for employment as a 

dump truck driver and was rehired by Thompson Contracting. Jim 

Stafford, Thompson’s Director of Operations, decided to rehire 

Yisrael after being assured that his drug use was under control. 

At that time, Yisrael completed an application indicating his 

unavailability for Saturday work. 

On the first Friday after being rehired, Yisrael was asked 

to work the following day, December 4, 2004. Yisrael responded 

to Mike Lowe, his immediate supervisor, that he could not work 

because of his religious obligation. All of Thompson

Contracting’s other dump truck drivers worked that Saturday. 
5

Thompson did not use any independent contractor dump trucks, and 

Yisrael was not disciplined for his absence. Yisrael was absent 

again on Thursday, December 9, 2004, due to an appointment 

concerning a veterans assistance issue. Although Yisrael had 

notified Lowe the day prior to the appointment of his 

anticipated absence, Yisrael received a verbal warning from 

Stafford for that absence.

On Friday, December 17, 2004, Lowe directed Yisrael to work 

the following day. When Yisrael informed Lowe that he could 

not, Lowe responded, “I understand.” J.A. 737-38.2

 Yisrael did 

not work on Saturday, December 18, 2004, but Thompson

Contracting’s other dump truck drivers worked that day.

Thompson also hired thirteen independent contractor dump trucks

for that Saturday’s work. On Monday, December 20, 2004, Yisrael

received a written warning for his Saturday absence, and he was 

suspended for three days. The warning specified that “this is 

the second week in a row this has happened,” and that the “next 

infraction will result in termination.” Id. at 907.

On Friday, February 11, 2005, Lowe directed Thompson

Contracting’s dump truck drivers, including Yisrael, to work the 

next day. All dump truck drivers save Yisrael worked that 

 2 Citations herein to “J.A. ____” refer to the contents of 

the Joint Appendix filed by the parties in this appeal.
6

Saturday, and Thompson also hired twelve independent contractor 

dump trucks. Due to adverse weather, no dump truck drivers 

worked on Monday, February 14, 2005. That very day, however,

anticipating that he would be fired for his absence the previous 

Saturday, Yisrael filed a charge with the EEOC alleging that 

Thompson had failed to accommodate his religious beliefs. 

Yisrael’s anticipation of being fired turned out to be correct. 

When he reported for work on Tuesday, February 15, 2005, 

Thompson terminated Yisrael’s employment. The termination 

notice specified that Yisrael was being discharged for his 

failure to have regular and dependable attendance. Stafford 

advised Yisrael that he “was being terminated because [his] 

religious schedule conflicted with the company’s work schedule.” 

J.A. 1139.

B.

On September 28, 2005, the EEOC filed its Complaint against 

Thompson Contracting in the Eastern District of North Carolina, 

alleging that Thompson had discriminated against Yisrael by 

failing to accommodate his religious beliefs and ultimately 

terminating him because of his religion. In addition to back 

pay, front pay, and punitive damages, the Complaint sought 

injunctive relief in the form of Yisrael’s reinstatement, plus

an order barring Thompson from future discrimination and 
7

directing the adoption of policies that would eradicate the 

effects of its past discrimination.

Through subsequent discovery, the EEOC ascertained that 

another Thompson Contracting employee, general equipment 

operator Ivan Larios, had been permanently excused from work on

Saturdays in order to accommodate his Saturday Sabbath

observance. The EEOC also learned that a small number of 

Thompson’s general equipment operators possessed CDL licenses, 

though they were neither listed on Thompson’s liability 

insurance policies nor trained to drive Thompson’s dump trucks.

After the close of discovery on April 20, 2007, Thompson 

Contracting moved for an award of summary judgment. On March 

31, 2008, the district court granted the summary judgment 

request, concluding that Yisrael’s termination was performancerelated and identifying no evidence that Thompson had 

discriminated on the basis of Yisrael’s religion. The EEOC 

appealed and, by decision of June 25, 2009, we concluded that 

the EEOC had made a prima facie showing under Title VII, and 

that the evidence presented a genuine factual dispute on why 

Yisrael was actually terminated. We thus vacated the judgment 

and remanded for further proceedings. See EEOC v. Thompson 

Contracting, Grading, Paving, & Utils., Inc., 333 F. App’x 768 

(4th Cir. 2009). In so doing, we observed that “summary 

judgment might still be proper if Thompson shows that it could 
8

not reasonably accommodate Yisrael’s religious needs without 

undue hardship.” Id. at 772.

On remand, in late April 2010, the district court ordered 

briefing on the reasonable accommodation issue. Thompson

Contracting asserted in its brief, for the first time, that the 

EEOC’s claim for injunctive relief was moot because Yisrael was 

not eligible to be rehired. Thompson also filed the declaration 

of a theretofore unidentified witness, Brandon Hudson, a 

Thompson vice president. On July 6, 2010, the EEOC moved to 

strike the mootness defense as well as the Hudson declaration. 

The EEOC asserted that any evidence flowing from the declaration

was barred by Rule 37(c)(1) of the Federal Rules of Civil 

Procedure, which prohibits the use of undisclosed information or 

witnesses “unless the failure [to disclose] was substantially 

justified or is harmless.”

On October 18, 2010, the district court entered an order 

accepting Thompson Contracting’s mootness defense and thereby

dismissing the EEOC’s claim for injunctive relief. By its 

order, the court also ruled that the late disclosure of Hudson

as a witness was harmless, and it reopened discovery for sixty 

days for the limited purpose of deposing Hudson.

On November 4, 2010, the EEOC served Thompson Contracting 

with an unauthorized new set of discovery requests containing 

interrogatories and requests for production of documents. On 
9

December 2, 2010, the EEOC noticed Hudson’s deposition for 

December 7, 2010. On December 7, Thompson sought a protective

order shielding it from any additional discovery. In support 

thereof, Thompson filed another declaration, that of its owner,

Bobby Ray Thompson, Jr., indicating that the business was 

“financially unable to perform or complete the performance of 

the work or comply with its contractual obligations,” and that 

“[a]ll of the Company’s contracts have been assigned to other 

contractors.” J.A. 1406-07. On April 4, 2011, the district

court entered a protective order, concluding that additional 

discovery would be of minimal benefit and was not worth the harm 

it would cause the defendant.3 Accordingly, the court closed 

discovery — depriving the EEOC of an opportunity to depose 

Hudson — and authorized the parties to file additional briefs on 

the reasonable accommodation issue.

On June 21, 2011, the district court awarded summary

judgment to Thompson Contracting. Relying in part on the Hudson 

declaration, the court determined that Thompson had satisfied 

its obligation of providing a reasonable accommodation by 

offering shift-swapping and paid personal leave, and by making 

 3 On March 19, 2012, during the pendency of this appeal, 

Thompson Contracting’s board of directors authorized Thompson’s 

dissolution, and articles of dissolution were filed with the 

Secretary of State of North Carolina on March 23, 2012.
10

efforts to personally accommodate Yisrael. See Thompson 

Contracting, 793 F. Supp. 2d at 744-45. The court also 

considered and rejected the EEOC’s three proposed accommodations

of Yisrael’s Sabbath observance: (1) that Yisrael be excused 

from Saturday work; (2) that Thompson create a pool of 

substitute drivers; and (3) that Yisrael be transferred to the 

position of general equipment operator. The court concluded 

that Thompson had met its burden of showing the first two 

proposed accommodations would each result in undue hardship, and 

that Thompson could not be required to offer the third because 

it reasonably believed that Yisrael would have refused such an 

accommodation. Id. at 745-47. The EEOC timely noted this 

appeal, and we possess jurisdiction pursuant to 28 U.S.C. 

§ 1291.

II.

We review for abuse of discretion a district court’s denial 

of a motion to strike under Federal Rule of Civil Procedure 

37(c). Hoyle v. Freightliner, LLC, 650 F.3d 321, 330 (4th Cir. 

2011). The entry of a protective order by a district court is 

also reviewed for abuse of discretion, which “may be found where 

‘denial of discovery has caused substantial prejudice.’” 

Nicholas v. Wyndham Int’l, Inc., 373 F.3d 537, 542 (4th Cir. 

2004) (quoting M & M Med. Supplies & Serv., Inc. v. Pleasant 
11

Valley Hosp., Inc., 981 F.2d 160, 163 (4th Cir. 1992) (en 

banc)). We review de novo a district court’s award of summary 

judgment, accepting the facts in the light most favorable to the 

nonmoving party. Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 

2008).

III.

On appeal, the EEOC seeks our resolution of three 

contentions: (1) that the district court erred in denying the 

EEOC’s motion to strike the Hudson declaration and in granting

Thompson Contracting a protective order; (2) that the court 

erred in awarding summary judgment to Thompson; and (3) that the 

court erred in dismissing the EEOC’s claim for injunctive 

relief. We address those assertions in turn.

A.

1.

In reviewing the EEOC’s initial contention, we turn first 

to the district court’s October 18, 2010 order denying the 

EEOC’s motion to strike the Hudson declaration. If a party 

fails to make the supplemental disclosures required by Federal 

Rule of Civil Procedure 26(a) or (e), “the party is not allowed 

to use that information or witness . . . unless the failure was 

substantially justified or is harmless.” Fed. R. Civ. P. 

37(c)(1). The test for evaluating substantial justification and 
12

harmlessness was spelled out in Southern States Rack & Fixture, 

Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003). 

Premised on its Southern States analysis, the court concluded 

that Thompson Contracting’s nondisclosure of Hudson and his 

declaration was harmless, and it reopened discovery to permit 

the EEOC to depose Hudson.4 That decision falls well within the 

trial court’s discretion.

2.

The district court thereafter revisited its discovery 

ruling, granting Thompson Contracting a protective order

depriving the EEOC of additional discovery, including an 

opportunity to depose Hudson. In so ruling on April 4, 2011, 

the court reiterated that the tardy Hudson disclosure was 

harmless. The court then assessed the declaration of Thompson’s 

 4 In our Southern States decision, we identified five 

factors that a trial court should utilize in exercising its 

discretion on whether a nondisclosure of evidence was 

substantially justified or harmless under Rule 37(c):

(1) the surprise to the party against whom the 

evidence would be offered; (2) the ability of that 

party to cure the surprise; (3) the extent to which 

allowing the evidence would disrupt the trial; (4) the 

importance of the evidence; and (5) the nondisclosing 

party’s explanation for its failure to disclose the 

evidence.

318 F.3d at 597 (observing that first four factors relate to 

harmlessness, and final factor relates to substantial 

justification). Here, the district court weighed the first four 

Southern States factors, assessing surprise, ability to cure, 

potential disruption of trial, and importance of the evidence.
13

owner regarding the company’s financial difficulties and 

concluded that, in such circumstances, Thompson’s burden of 

responding to additional discovery outweighed the likely benefit

of such discovery to the EEOC. See Fed. R. Civ. P. 

26(b)(2)(C)(iii).5

When the protective order was entered, this case had been 

pending for more than five years. Thompson Contracting was then 

in the process of winding down its business and no longer 

employed several of its witnesses. Meanwhile, the district 

court had dismissed the EEOC’s claim for injunctive relief, and 

its back pay claim was worth less than $6000. Additionally,

little of the information offered by Hudson was new. For 

example, Hudson’s assertion that an unused dump truck cost 

Thompson $520 per day in contract revenue simply supplied a 

figure for Stafford’s deposition testimony that an idle truck 

resulted in lost revenue. Indeed, the only new items of 

 5 Pursuant to Rule 26 of the Federal Rules of Civil 

Procedure, a court may limit discovery if it determines that

the burden or expense of the proposed discovery 

outweighs its likely benefit, considering the needs of 

the case, the amount in controversy, the parties’

resources, the importance of the issues at stake in 

the action, and the importance of the discovery in 

resolving the issues.

Fed. R. Civ. P. 26(b)(2)(C)(iii). On this record, the district 

court weighed each of those factors prior to its entry of the 

protective order.
14

information in the Hudson declaration were his assertions that 

all new dump truck drivers at Thompson were required to train 

for one week, at a cost to Thompson of $11-$12 per hour ($440-

$480 for forty hours), and that “[d]uring Yisrael’s second term 

of employment, Thompson welcomed substitutions of drivers for 

work days that fell on a driver’s Sabbath.” J.A. 1209. Neither 

assertion — if true — is essential to our conclusion that 

summary judgment was appropriate. Put simply, the limited

amount of new evidence offered by Hudson, considered in 

conjunction with the relatively minor sum that remained in 

controversy and the decline of Thompson’s business, support the 

proposition that the district court did not abuse its discretion 

in entering the protective order.

B.

We thus proceed to the EEOC’s contention that the district 

court erred in making its summary judgment award, which we 

assess de novo. Pursuant to Title VII, it is 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). Religion is defined, for 

Title VII purposes, as “all aspects of religious observance and 

practice, as well as belief, unless an employer demonstrates 
15

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.” Id.

§ 2000e(j). 

In the first appeal in this case, we determined that “the 

EEOC proffered sufficient evidence of a prima facie case of 

religious discrimination by Thompson.” Thompson Contracting, 

333 F. App’x at 770. When a plaintiff has established a prima 

facie case of religious discrimination under Title VII, the 

burden of proof shifts to the employer to “demonstrate either

(1) that it provided the plaintiff with a reasonable 

accommodation for his or her religious observances or (2) that 

such accommodation was not provided because it would have caused 

an undue hardship — that is, it would have ‘result[ed] in more 

than a de minimis cost to the employer.’” EEOC v. Firestone

Fibers & Textiles Co., 515 F.3d 307, 313 (4th Cir. 2008) 

(alteration in original) (quoting Ansonia Bd. of Educ. v. 

Philbrook, 479 U.S. 60, 67 (1986)). Although the two prongs of

Firestone are “interrelated,” Judge Wilkinson therein explained

our holding that “the ‘reasonably accommodate’ and ‘undue 

hardship’ inquiries [are] separate and distinct.” Id. at 314. 

The district court’s most recent summary judgment award to 

Thompson Contracting was based on its conclusion that Thompson

had satisfied both of the Firestone prongs. We are satisfied to
16

affirm on the undue hardship prong only, rendering it 

unnecessary to reach the reasonably accommodate prong. 

In the summary judgment proceedings, the EEOC proposed 

three accommodations, namely, that Thompson Contracting excuse 

Yisrael from Saturday work, create a pool of substitute drivers, 

or transfer Yisrael to the position of general equipment 

operator. The district court rejected the first two of the 

EEOC’s proposed accommodations after concluding that Thompson 

had satisfied its burden of showing that each would result in an 

undue hardship on the conduct of Thompson’s business. The court 

then concluded that Thompson was not required to offer the third

proposed accommodation because it reasonably believed that

Yisrael would refuse such an offer. For the reasons set forth 

below, we agree.

1.

First, in asserting that Yisrael could be excused from 

Saturday work, the EEOC points to Ivan Larios, the general 

equipment operator for Thompson Contracting who was not required 

to work on Saturdays. When dump truck drivers were needed on a 

Saturday, however, it was not uncommon that all of Thompson’s 

dump truck drivers were deemed essential. On February 12, 2005, 

the specific absence immediately preceding Yisrael’s 

termination, Thompson was compelled to hire thirteen independent 

contractor dump trucks. Operating one of its own dump trucks
17

cost Thompson around $100 per day, while hiring an independent 

contractor dump truck cost much more, $50 to $100 per hour. And 

when one of Thompson’s trucks was idle, Thompson was unable to 

charge for its use, thereby losing revenue. Such a situation is 

readily distinguishable from that of Larios who, as one of about

200 general equipment operators for Thompson, could be readily

excused from Saturday work.

The EEOC also argues that Thompson Contracting could do 

without Yisrael for Saturday work because such work occurred 

infrequently. The EEOC emphasizes that, during Yisrael’s 

eleven-week second period of employment, Thompson scheduled only 

three Saturday work sessions. That fact would not lessen the 

burden on Thompson, however, on a Saturday when all of its dump 

truck drivers were needed. At such times, any work left undone 

by Yisrael’s idle truck would necessarily be completed by 

Thompson’s other drivers, or by the hired independent 

contractors, or not at all. Mandating that Thompson’s other 

dump truck drivers pick up the slack caused by Yisrael’s absence 

from work is an unacceptable alternative, in that we have 

recognized that “an employer is not required to accommodate an 

employee’s religious need if it would ‘impose personally and 

directly on fellow employees.’” Firestone, 515 F.3d at 317 

(quoting Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1021

(4th Cir. 1996)). If Yisrael’s work was to be performed by the 
18

independent contractor dump trucks, it would cost substantially 

more than Yisrael’s labor. And even if Yisrael’s unfinished 

work was made up during the following week, Thompson would lose

contract revenue for any Saturday that Yisrael’s dump truck sat

idle. Put simply, we agree with the district court that

[c]ommon sense dictates that either Thompson hired at 

least one of the independent contractors to make up 

for Yisrael, the drivers worked harder to make up for 

his absence, or a combination of both. Guaranteeing 

every Saturday[] off for Yisrael would inevitably 

result in an undue hardship to Thompson.

Thompson Contracting, 793 F. Supp. 2d at 745. As a result, the 

district court did not err in concluding that excusing Yisrael 

from Saturday work would impose more than a de minimis cost on 

Thompson, resulting in an undue hardship on the conduct of its 

business.

2.

Second, the EEOC contends that Thompson Contracting failed 

to satisfy its burden of showing that the EEOC’s second proposed 

accommodation — securing an alternate driver from among 

Thompson’s other employees — would result in a cost that was

more than de minimis. In rejecting that proposal, the district 

court correctly observed:

The EEOC’s proposed substitute driver system would 

utilize either existing drivers or insure additional 

drivers. Substituting existing drivers, however, does 

little to address Thompson’s difficulties. On every 

Saturday that Yisrael was asked to work, Thompson also 

had all of its other three dump truck drivers working. 
19

Besides the dump truck drivers, Thompson only had four 

other licensed and insured CDL drivers, all of which 

could also drive a dump truck. On at least two 

occasions, December 3rd and 17th, Thompson was already 

using all these available insured CDL drivers when 

Yisrael could not work. Thus, substituting existing 

drivers for Yisrael is not a reliable solution.

Thompson Contracting, 793 F. Supp. 2d at 746 (footnote omitted).

Notably, the EEOC takes no issue with the foregoing factual 

recitation. It instead argues that there were available 

substitute CDL drivers on Saturday, February 12, 2005. 

Recognizing that an alternate dump truck driver would not always 

be available from within the ranks of Thompson Contracting’s CDL 

drivers, the EEOC suggests that Thompson could have secured a 

substitute from among the small number of its general equipment 

operators who possessed a CDL. Those employees, however, had

not been hired as CDL drivers, were not identified on Thompson’s 

liability insurance policies, and had never driven Thompson’s 

dump trucks. In order for them to serve as proper substitutes

for Yisrael on intermittent Saturdays, they would need to be

recruited, trained, and qualified for the company’s liability

insurance, plus pass a road test. As the district court 

recognized in this regard, 

[t]hese extra costs would make little sense merely to 

provide an occasional substitute driver for another 

worker. Moreover, makeup days are inherently on short 

notice, so Thompson would need to have several such 

substitute drivers to ensure one would be available 

when needed.
20

Thompson Contracting, 793 F. Supp. 2d at 746. In these 

circumstances, we agree with the district court that creating a 

pool of substitute drivers would impose more than a de minimis

cost on Thompson, and would therefore impose an undue hardship

on the conduct of its business.

3.

Finally, the EEOC proposes — as its third alternative —

that Thompson Contracting could have accommodated Yisrael by 

transferring him to the position of general equipment operator. 

That accommodation was first proposed by the EEOC in response to 

Thompson’s initial motion for summary judgment, that is, prior 

to the first appeal. The only record support for the 

proposition that Yisrael might have accepted such a transfer is 

in his affidavit of June 18, 2007, filed post-discovery, in 

which he asserts that he “would have accepted a general 

equipment operator position had it been offered.” J.A. 1203. 

In rejecting that proposed accommodation, the district court 

declined to credit Yisrael’s affidavit assertion, finding it

contrary to his deposition testimony of December 11, 2006. The 

court also concluded that Thompson was not obliged to offer 

Yisrael a transfer to general equipment operator because it 

reasonably believed that such a transfer would be refused. On 

appeal, the EEOC maintains that the court erred in disregarding 
21

Yisrael’s affidavit and in concluding that Thompson reasonably 

believed that Yisrael would have rejected a transfer.

In this Circuit, it is settled that a conclusory affidavit,

conflicting with an earlier deposition, is not alone sufficient

to create a triable issue of fact. Evans v. Techs. Applications 

& Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996) (citing Rohrbough 

v. Wyeth Labs., Inc., 916 F. 2d 970, 975 (4th Cir. 1990) (“A 

genuine issue of material fact is not created where the only 

issue of fact is to determine which of the two conflicting 

versions of the plaintiff’s testimony is correct.” (internal 

quotation marks omitted))). Here, the record reflects that

Yisrael had twice sought and specifically applied for the 

position of dump truck driver with Thompson Contracting. In his 

deposition, Yisrael again confirmed that he preferred driving 

the dump truck over other duties, stating that he was “hired as 

a dump truck driver, and that’s what I expected to do.” J.A. 

536. Notably, Yisrael was never directly asked during his 

deposition whether a transfer to general equipment operator 

would have been accepted, as he later asserted in his affidavit. 

It is thus arguable that Yisrael’s deposition testimony and his 

affidavit are not in irreconcilable conflict.

Assuming the veracity of the Yisrael affidavit, however, we 

are satisfied — as was the district court — that Thompson

Contracting was not obliged to offer a transfer as an
22

accommodation. That Yisrael might have accepted a transfer does 

not resolve this appeal in favor of the EEOC, because it is 

clear from the record that Thompson reasonably believed that 

Yisrael would not have agreed to change positions. Lowe, 

Yisrael’s immediate supervisor and Thompson’s Director of 

Production, explained that “[i]f you asked [Yisrael] to get out 

of the truck to pull string or to shovel a little curb, he would 

have a lot of mouth,” and he would make comments to the effect 

of “‘I’m not a shovel person.’” J.A. 1104. Lowe specified that 

Yisrael “thought he was a truck driver and that was all,” and 

that Yisrael “would just moan and complain all of the time if he 

wasn’t driving a truck.” Id. Accepting the evidence in the 

light most favorable to the EEOC, it is clear that Thompson 

reasonably believed that Yisrael would not have accepted a

transfer to general equipment operator. Furthermore, Thompson

was not required to offer Yisrael an accommodation that, on the 

basis of his actions, the company reasonably believed would be 

refused. See Wisner v. Truck Cent., 784 F.2d 1571, 1574 (11th 

Cir. 1986) (“The concept of accommodation does not require the 

employer to tender employment arrangements that, based on the 

employee’s own actions, it reasonably believes will be 

refused.”). 

Put succinctly, Thompson Contracting was not obliged to 

offer Yisrael a transfer to general equipment operator, and it 
23

has satisfied its burden, under the undue hardship prong of our 

Firestone decision, of showing that the EEOC’s other proposed

accommodations would have resulted in more than a de minimis

cost to Thompson, causing an undue hardship on the conduct of 

its business. In these circumstances, each of the EEOC’s 

proposed accommodations must be rejected.6

IV.

Pursuant to the foregoing, we affirm the judgment of the 

district court.

AFFIRMED

 6 In light of our endorsement of the district court’s 

summary judgment award, we need not reach the EEOC’s contention 

that the court erred in dismissing its claim for injunctive 

relief.