Equal Emp't Opportunity Comm'n v. JBS United States, LLC

• Decision Date: 24 September 2018
• Docket Number: Civil Action No. 10-cv-02103-PAB-KLM
• Citation: 339 F.Supp.3d 1135
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, and Iraq Abade, et al., Plaintiffs-Intervenors, and Maryan Abdulle, et al., Plaintiffs-Intervenors, v. JBS USA, LLC, d/b/a JBS Swift & Company, Defendant.
• Court: U.S. District Court — District of Colorado

339 F.Supp.3d 1135

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,

and

Iraq Abade, et al., Plaintiffs-Intervenors,

and

Maryan Abdulle, et al., Plaintiffs-Intervenors,

v.JBS USA, LLC, d/b/a JBS Swift & Company, Defendant.

Civil Action No. 10-cv-02103-PAB-KLM

United States District Court, D. Colorado.

Signed September 24, 2018

Justin Mulaire, U.S. Equal Employment Opportunity Commission, New York, NY, Karl R. Tetzlaff, Lauren Golden Jaeckel, Michael Holm Imdieke, U.S. Equal Employment Opportunity Commission, Diane Smith King, Hunter Anthony Swain, King & Greisen, LLP, Todd John McNamara, McNamara & Shechter, LLP, Denver, CO, Kimberly J. Jones, Jones Law, Englewood, CO, for Plaintiff.

Brooke A. Colaizzi, Heather Fox Vickles, Kelly K. Robinson, Matthew M. Morrison, Raymond Myles Deeny, Sherman & Howard, L.L.C., Denver, CO, for Defendant.

PHASE I FINDINGS OF FACT AND CONCLUSIONS AT LAW

PHILIP A. BRIMMER, United States District Judge

The Court presided over a 16-day trial to court in Phase I of this discrimination case, involving pattern or practice claims brought by the United States Equal Employment Opportunity Commission (the "EEOC") pursuant to Title VII of the Civil Rights Act of 1964. Defendant, JBS USA, LLC, d/b/a JBS Swift & Company ("JBS"), owns a beef processing facility in Greeley, Colorado (the "Greeley plant" or the "Greeley facility"). From 2007 to 2011, the Greeley plant employed several hundred Muslim employees who sought accommodation from JBS because of their need to pray during working hours.

On August 8, 2011, the Court issued an order bifurcating this case. Docket No. 116 (the "bifurcation order"). Pursuant to the bifurcation order, the Phase I trial addressed three claims:

1. That JBS engaged in a pattern or practice of unlawfully denying Muslim employees reasonable religious accommodations to pray and break their Ramadan fast from December 2007 through July 2011.

2. That JBS engaged in a pattern or practice of disciplining employees on the basis of their race (black), national origin (Somali), and religion (Muslim) during Ramadan 2008 (September 1-30, 2008).

3. That JBS engaged in a pattern or practice of retaliating against a group of black, Muslim, Somali employees for engaging in protected action in opposition to discrimination during Ramadan 2008.

Docket No. 116; see also Docket No. 493 at 1-2 (memorializing the parties' agreement that Phase I would cover the EEOC's "pattern-or-practice failure to accommodate claims through July 2011.").

I. FINDINGS OF FACT

A. Stipulated Facts

The parties have stipulated to the following facts:

1. At all relevant times, JBS USA, LLC has continuously been doing business in the state of Colorado and has continuously had at least 15 employees.

2. At all relevant times, Defendant has been an employer engaged in an industry affecting commerce within the meaning of §§ 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(b), (g) and (h).

3. The United Food and Commercial Workers International Union, Local No. 7 is the exclusive bargaining agent for all production employees employed by JBS at its Greeley, Colorado beef plant as specifically defined in the Collective Bargaining Agreement (the "CBA").

Docket No. 490 at 6-7.

B. Findings of Fact From the Trial Evidence

The Court makes the following findings of fact by a preponderance of the evidence.

1. JBS and the Greeley Beef Plant

JBS is the largest producer of beef in the world. It has come to that position through acquisitions of numerous companies and facilities in the agricultural sector, including acquisition of the Greeley plant.

Cattle arrive at the Greeley plant by truck and are unloaded into cattle pens, or yards, where they are weighed and inspected by a United States Department of Agriculture ("USDA") veterinarian. Once approved by the USDA, the cattle are led up a chute into the slaughter area where they are stunned and killed. Each carcass is then hung from a chain that moves through the slaughter floor, where employees perform various functions to inspect the carcass and where certain large cuts are made. The carcass subsequently goes to a "hot box" cooler where it is held for 48 hours.

From the hot box cooler, the carcass is moved into a grading and sales cooler. There the carcass is assigned a grade, such as "Prime," "Certified Angus Beef," "Angus," "Choice," or "Select." Only one grade of cattle at a time may be run through the fabrication area. Carcasses can be kept in this cooler for up to five days before they must be processed. The carcasses are carried out of the cooler attached to a chain. In fact, the line on which a carcass moves during processing is sometimes referred to as the "chain."

Once carcasses leave the grading and sales cooler, they go to the fabrication area, where the carcasses are cut into smaller pieces and the smaller pieces are processed. The fabrication area is organized into multiple lines, each of which is responsible for processing a different part of the carcass. The initial section of the fabrication area is called the "break line." Large sections of the carcasses are cut off and placed on conveyor belts. Each conveyor belt has one or more lines of workers who perform specific tasks on different portions of the carcass.¹ For example, there are boning lines, a rib line, an arm line, a value added line, and a loin line. Each product must be cut to meet particular specifications. For example, a particular customer may require a certain amount of fat on the edge of a particular piece of meat, while another customer may require less fat.

After passing through the fabrication area, the beef moves into the packaging area. The cuts of meat are placed in plastic bags and sealed. The bags are placed in boxes that are moved to the shipping department to be shipped out to customers.

The chain moves beef through the facility at a certain speed (the "chain speed"). Although the chain speed can vary, slaughter and fabrication employees are required to work at a pace that corresponds with the chain speed needed to process the number of carcasses anticipated for that shift. A problem on one area of the line can affect the operations of the entire plant. In 2008, the goal at the Greeley plant was to slaughter and process about 5,600 head of cattle daily, which produced about 37,000 boxes of meat for shipping each day. The USDA sets the maximum chain speed in the slaughter area of the plant. Because the plant operates on an assembly line, JBS is required to correlate the chain speeds in the slaughter and fabrication areas so that the meat is packaged and shipped before spoiling. Thus, when staffing falls below the level for the current chain speed, the plant must reduce the chain speed.

Multiple "grade changes" occur per shift because, as noted earlier, only one grade of cattle may be run through the fabrication area at a time. The number of grade changes per shift varies from three to twenty. A one to five minute gap in the product on the chain occurs during every grade change.

The management of lines depends on the number of employees on a particular line. Large lines would be overseen by a supervisor and multiple team leads. Smaller lines, some with as few as four employees, would have no supervisor and only one team lead. Typically there is one supervisor and one or two team leads per line. For example, the value added line has only fifteen to twenty employees, whereas the break line has one supervisor and two team leads supervising approximately eighty-five employees. Trainers would also be present on certain lines, with their locations varying depending on where employees were being trained. JBS used industrial engineering studies to determine the amount of time taken for tasks on the line and, thereby, the crewing required for a particular chain speed. Under the CBA, the trainers, team leads, and supervisors may fill in for employees who take unscheduled breaks. Ex. A-03 at 5, Art. 4, § 2. The CBA, however, prohibited supervisors from performing bargaining unit work - i.e., production work performed by hourly employees - "except in such situations as instructing an employee, temporarily filling in for absenteeism or in case of emergency." Id. This provision prohibited supervisors from routinely filling in for hourly employees.

Processing the meat on the line is physically demanding, as many production employees stand for long periods of time to trim and debone products that may weigh forty pounds or more. The jobs considered physically demanding or that require more skill often were paid a higher hourly rate. Ex. A-03 at 19, App'x A. The CBA required JBS to pay employees overtime for all hours worked in excess of eight hours in a day and all work over forty hours in a week. Ex. A-03 at 6, Art. 6, § 3.

"Crewing" refers to the number of employees needed to do a particular job at a particular chain speed. The number of employees assigned to each line varies. Due to absences and vacations, JBS often assigned an excess number of employees relative to the number of employees necessary for the line to be fully staffed. This excess is known as "over-crewing." The Greeley plant typically over-crewed at 115-117%. Nevertheless, the fabrication floor was still almost never crewed at capacity. Thus, overcrewing did not lead to excess employees available to fill in for absent employees.

Production employees, i.e., those working in the slaughter and fabrication areas, wear a variety of safety equipment depending on their position, which can include hard hats, hair nets, safety glasses, gloves, boots, metal-mesh gloves, arm-guards, and aprons. Some of this equipment is specific to particular dangers, for example, employees who work with knives are required to wear metal mesh covering certain parts of their body. Employees must remove at least some of this safety equipment before leaving the production floor and put it back on when returning to the line. Employees varied in their estimates of the time it took to remove...