CASES: Transcript is also attached EEOC v. Alamo Rent-A-Car LLC ?432 F. Supp. 2d 1006 (D. Ariz. 2006) Tiano v. Dillards Department Stores, Inc ?139 F.3d 679

Djarra VS. McFatty’s Transcript of Court Interview of Parties Ms. Adjha Djarra, Plaintiff McFatty’s Burger Joint, and Mr. Ron Johnson, Defendants JUDGE: We are here today to hear testimony in the matter or Ms. Djarra’s allegation of employment discrimination against McFatty’s Burger Joint. Both parties are present and representing McFatty’s is Mr. Johnson, the manager of McFatty’s. Weloome. Ms.Djarra, will you please state the nature of your complaint? PLAINTIFF: Thank you, Your Honor. I am here today because I believe I was terminated from my position at McFatty’s due to my religion as a Muslim. I have worked at McFatty’s for about nine months, when Ramadan started. I came to work wearing my hijab, as is required by my religion during the holy month. At first Mr. Johnson did not say anything but then he heard a couple of comments regarding hiring terrorists and the like and two weeks later, he demanded I not wear the hijab to work behind the counter. I work as a cashier and taking orders at the front counter. He said if I came to work with the hijab the next day, I would be fired. I came to work the next day wearing my hijab and he fired me immediately. I had to look for another job and I ultimately found one after two weeks, but I do not like it as much as I liked McFatty’s. and it pays less. So that is why we are here. JUDGE: I see. Did you feel threatened by the comments? PLAINTIFF: No, I did not. I am used to people making ignorant remarks but it does not bother me. You just get used to it after a while. JUDGE: Thank you. Mr. Johnson – what is your position? DEFENDANT: Thank you, Your Honor. I am the manager of McFatty’s. I hired Ms. Djarra and she has been a very good employee, but McFatty’s has a dress code. Every employee must wear only the approved visor and shirt and pants to represent the brand. Ms. Djarra was advised not to wear the hijab as it is not per the company policy. So, I had no choice but to fire her for willfully violating company policy. I am retired military and I run a tight ship –by the books. JUDGE: Ms. Djarra, do you have a response? PLAINTIFF: Yes, I do. Mr. Johnson allows other employees to wear religious symbols such as crosses or stars of David, but he would not allow me to wear my religious head scarf. I offered to wear the hijab under my visor and to even wear a hijab that was the same color as the visor, but he refused.

DEFENDANT: The other employees wearing crosses wear them under their uniform and are not visible to the customers. The hijab is visible. I felt I needed to protect the entire team since the comments against Adjah were quite fierce and they sounded very real and threatening. If I allowed Ms. Djarra to wear her hijab, and deviate from the policy, soon I would have other employees wearing hats and hoodies instead of the required company uniform. We would have no control or standards at all. I did offer to allow Ms. Djarra to take the month off without pay but I had no other place for her to work where she would not be visible to the customers. PLAINTIFF: Taking the month off with no pay was not a viable option for me. I need to work to pay my rent and other bills. JUDGE: Mr. Johnson – would you be willing to rehire Ms. Djarra if this could be worked out? DEFENDANT: Yes, I would. She was a very good employee. JUDGE: Ms. Djarra, would you be willing to return to McFatty’s if something could be worked out? PLAINTIFF: Yes. I really liked working there and I was good at it. I never wanted to leave. JUDGE: Thank you both for your time today. I will advise you of my decision after due consideration of the facts presented today.

EEOC v. Alamo Rent-A-Car LLC, 432 F. Supp. 2d 1006 – Dist. Court, D. Arizona 2006 – Google Scholar

https://scholar.google.com/scholar_case?case=2247282148214986095&q=EEOC+v.+Alamo+Rent-A-Car+LLC.,+432+F.+Supp.+2d+1006&hl=en&as_sdt=2006[11/3/2018 9:42:02 AM]

EEOC v. Alamo Rent-A-Car LLC, 432 F. Supp. 2d 1006 – Dist. Court, D. Arizona 2006

432 F.Supp.2d 1006 (2006)

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.

ALAMO RENT-A-CAR LLC; ANC Rental Corporation, Defendants.

No. 02-01908-PHX-ROS.

May 26, 2006.

United States District Court, D. Arizona.

*1007 *1008 C. Emanuel Smith, Mary Joleen O'Neill, P. David Lopez, Equal Employment Opportunity Commission, Phoenix, AZ, for Plaintiff.

10071008

Lonnie James Williams, Quarles & Brady Streich Lang LLP, Stephanie J. Quincy, Sherman & Howard LLC, Phoenix, AZ, for Defendants.

ORDER

SILVER, District Judge.

On March 28, 2005, this Court issued a Short Order granting Plaintiff Equal Employment Opportunity Commission's ("EEOC") Motion for Partial Summary

Judgment (Doc. # 49), with an opinion to follow. This is that opinion.[1]

I. JURISDICTION

This Court has subject matter jurisdiction of the action pursuant to 28 U.S.C. § 1331 (federal question), § 1343 (civil rights action), and § 1345 (United States as a plaintiff).

II. BACKGROUND

A. Factual Background

Bilan Nur is a Muslim woman who immigrated to the United States from Somalia in 1998. [Doc. # 50 (Plaintiff's Statement of Undisputed Facts ("PSOF")) ¶¶, 6]. Alamo hired Ms. Nur as a rental agent in November 1999 for a rental agency location on East Washington Street in Phoenix, Arizona. [Id. ¶ 2]. In this position, Ms. Nur rented cars to customers, accepted payment, and answered the telephone; her duties required interaction with clients. [Id. ¶ 4]. Until the events which led to her termination, Ms. Nur's job performance was "fine." [Id. 115]. While Ms. Nur was employed by Alamo, the company had in effect a "Dress Smart Policy" which promoted a favorable first impression with customers, and expressly prohibited employees from wearing certain clothing and accessories, for example, the wearing of more than one earring, open toe shoes, and half-grown beards. [Id. ¶¶ 9, 13]. Plaintiff states that the Policy did not expressly prohibit the wearing of

Read How cited

EEOC v. Alamo Rent-A-Car LLC, 432 F. Supp. 2d 1006 – Dist. Court, D. Arizona 2006 – Google Scholar

https://scholar.google.com/scholar_case?case=2247282148214986095&q=EEOC+v.+Alamo+Rent-A-Car+LLC.,+432+F.+Supp.+2d+1006&hl=en&as_sdt=2006[11/3/2018 9:42:02 AM]

head coverings; Alamo counters that the Policy prohibits the wearing of any "garment or item of outer clothing not specifically mentioned in the policy ….." [PSOF ¶ 10; Doc. # 56, Defendant's Controverting Statement of Facts ("DCSOF") ¶ 10].

The Muslim holiday of Ramadan began on November 16, 2001. [Id. ¶ 17; DCSOF ¶ 17]. At some point in November 2001, Plaintiff spoke to Alamo's "City Manager" Victor Bellavia and requested permission to wear a head covering at work during

the Ramadan holiday.[2] Mr. Bellavia contacted Alamo's Human Resource Manager for the Western Region, Heather Phillips, about Ms. Nur's request for an accommodation *1009 to wear a head covering during Ramadan. Ms. Phillips instructed Bellavia that Plaintiff would be allowed to wear a head covering at work in the back of the office, but that she would need to remove the head covering while at the rental counter. [PSOF ¶ 22]. Alamo did not excuse Ms. Nur from working at the rental counter during Ramadan. [Id. ¶ 28].

1009

On December 1, 2001, an Alamo manager, Herman Schilling wrote Ms. Nur a "Counselling [sic] Review," which stated: "You had previously been told by the City Manager that you are not allowed to wear a hat or head covering in your position at work. When I arrived at work this morning you were wearing a veil over your hair and I told you to clock-out and discuss with the City Manager on Sunday." [PSOF, Ex. B (Believe Dep.), Ex. 2]. The next day, December 2, 2001, Ms. Nur received another Counseling Review, pursuant to which she was suspended and advised: " You had been previously informed by the city manager that you are not allowed to wear a hat or head covering in your position at work. You were wearing a veil over your hair this morning. You were sent home yesterday for the same violation and will be sent home again today. You need to discuss this issue with the city manager tomorrow." [Id., Ex. 3]. The next day (December 3, 2001), Ms. Nur again received a counseling review. In this review, Mr. Bellavia and LaShunda Brown advised Ms. Nur: "Bilan you have been verbally warned on several different occassion [sic] reguarding [sic] your work uniform. You were also sent home on 12/01-12/02 for failing to comply with company policy. You are been [sic] suspended pending investigation. You are to return on 12/6/01, 8:30 am, To meet with the City Manager." [Id., Ex. 4].

Also on December 3, 2001, Mr. Bellavia wrote a memorandum to the file summarizing the disciplinary actions taken against Ms. Nur:

Bilan Nur approached me on Tuesday November 20, 2001 asking me if she was allowed to wear a scarf/head covering during her religious holiday Rhamadan. I informed her that I would run it by Human Resources and let her know if she was allowed to do this. Last year in December of 2000 Sal Vargas [Assistant City Manager] informed her she could not do this and made her take it off. Heather Phillips from Human Resources informed me that she was not allowed to have her head covered do [sic] to the fact its [sic] not part of the uniform policy. I informed this to Bilan and she was not happy with the answer. When the Holiday started she insisted on having her head covered. I informed Heather of the situation and she informed me to warn her that she could not wear it and if she continue [sic] to come to working [sic] wearing it Alamo would then start counseling her immediately. On Saturday December 1, 2001 she came to work not meeting the companies [sic] uniform policy, we counseled her on it and sent her home. On Sunday December 2, 2001 Bilan did not follow the company policy on her uniform and we counseled her again and sent her home.

EEOC v. Alamo Rent-A-Car LLC, 432 F. Supp. 2d 1006 – Dist. Court, D. Arizona 2006 – Google Scholar

https://scholar.google.com/scholar_case?case=2247282148214986095&q=EEOC+v.+Alamo+Rent-A-Car+LLC.,+432+F.+Supp.+2d+1006&hl=en&as_sdt=2006[11/3/2018 9:42:02 AM]

On Monday December 3, 2001 Bilan did not follow company policy with regards to Alamo uniform policy, we counseled her and suspended her three-day [sic] which may result in her termination of employment with Alamo Rent a Car.

[PSOF, Ex. B (Bellavia Dep.), Ex. 1]. Alamo terminated Ms. Nur's employment on December 6, 2001 for violation of company rules. [PSOF, Ex. I (Vargas Dep.), Ex. 5]. The termination form indicates that Ms. Nur was not eligible for re-hire. [Id.].

*1010 B. Procedural history1010

EEOC filed its Complaint on September 27, 2002. [Doc. # 1]. On November 19, 2002, the matter was stayed after Alamo filed for Chapter 11 bankruptcy. [Doc. # 6]. The automatic stay was lifted by Order filed on April 14, 2003. [Doc. # 11]. EEOC filed the Motion for Partial Summary Judgment (Doc. # 49) on April 30, 2004 in which it requests judgment regarding liability on its religious discrimination claim. EEOC asserts the claim pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended, on behalf of Bilan Nur, a former employee of Defendants ("Alamo"). Alamo filed its Response on June 18, 2004 (Doc. # 55), followed by EEOC's Reply, filed on July 20, 2004 (Doc. # 59).

III. LEGAL STANDARD ON SUMARY JUDGMENT

A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the non-moving party, "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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Jesinger v. Nev. Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir. 1994). Substantive law determines which facts are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see Jesinger, 24 F.3d at 1130. In addition, the dispute must be genuine, that is, "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

Furthermore, the party opposing summary judgment "may not rest upon the mere allegations or denials of [the party's] pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir.1995). There is no issue for trial unless there is sufficient evidence favoring the non-moving party; if the evidence is merely colorable or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. However, because "[c]redibility determinations, the weighing of evidence, and the drawing of inferences from the facts are jury functions, not those of a judge, . . . [t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor" at the summary judgment stage. Id. at 255, 106 S.Ct. 2505 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)); see Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995).

IV. DISCUSSION

A. Framework

EEOC v. Alamo Rent-A-Car LLC, 432 F. Supp. 2d 1006 – Dist. Court, D. Arizona 2006 – Google Scholar

https://scholar.google.com/scholar_case?case=2247282148214986095&q=EEOC+v.+Alamo+Rent-A-Car+LLC.,+432+F.+Supp.+2d+1006&hl=en&as_sdt=2006[11/3/2018 9:42:02 AM]

Title VII prohibits as an unlawful employment practice the discharging of an employee because of the employee's religion. 42 U.S.C. § 2000e-2(a)(1). "Religion" is defined to include "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 . . . religious observance or practice without undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j). The Ninth Circuit employs a two-step framework to analyze claims of religious discrimination under Title *1011 VII. Tiano v. Dillard Dep't Stores, Inc., 139 F.3d 679, 681 (9th Cir.1998). Initially, a plaintiff must establish a prima facie case by demonstrating "(1) she had a bona fide religious belief, the practice of which conflicted with an employment duty; (2) she informed her employer of the belief and conflict; and (3) the employer threatened her or subjected her to discriminatory treatment, including discharge, because of her inability to fulfill the job requirements." Id. (citing Heller v. EBB Auto. Co., 8 F.3d 1433, 1438 (9th Cir.1993)). If the plaintiff establishes her prima facie case, the burden shifts to the employer to show one of two things: (1) "that it initiated good faith efforts to accommodate reasonably the employee's religious practices"; or (2) "that it could not reasonably accommodate the employee without undue hardship." Id. If negotiations between employee and employer "do not produce a proposal by the employer that would eliminate the religious conflict, the employer must either accept the employee's proposal or demonstrate that it would cause undue hardship were it to do so." Opuku-Boateng v. California, 95 F.3d 1461, 1467 (9th Cir.1996) (citing EEOC v. Townley Eng'g & Mfg. Co., 859 F.2d 610, 615 (9th Cir. 1988)).

1011

B. Plaintiffs prima facie case

Alamo contends that EEOC has failed to prove a prima facie case of religious discrimination, arguing that Ms. Nur's religious beliefs did not conflict with her job requirements because her "personal practice did not require that she wear a [head covering] at all times during Ramadan." [Doc. # 55 (Def.'s Resp.),p. 4]. Alamo points to evidence that during Ramadan in 2000 (the year prior to the Ramadan at issue), Alamo's management asked Ms. Nur to remove her head covering and she complied, and did not assert a religious need to object to the request. [Id., p. 5]. Alamo concludes that this evidence supports a question of fact regarding "whether Ms. Nur's religious beliefs are what she is stating in this lawsuit." [Id.]. Similarly, Alamo states that because Ramadan in 2001 began on Friday, November 16 and they say Plaintiff did not request an accommodation permitting her to wear a head covering until Tuesday, November 20, 2001, this could suggest that Ms. Nur's religious beliefs did not actually dictate that she wear a head covering at work under all circumstances. Alamo further states that Plaintiff went to the press with her story immediately after her termination and gave conflicting statements at deposition regarding whether she contacted the press or the press contacted her, arguing this casts doubt on whether Ms. Nur's statement of her religious beliefs is credible. [Id., p. 6].