481 F.Supp.3d 684
M.D. Tenn.2020Background
- The EEOC sued Publix after applicant Guy Usher (who practices Rastafarianism and wears dreadlocks) alleged Publix refused a religious accommodation to its grooming policy (male hair must not hang over the collar) and effectively withdrew its offer.
- Usher applied Jan. 9–10, 2017; Assistant Manager Kayla McKee told him at hiring he would have to cut his hair; McKee later told him over the phone the policy requires hair shorter than the collar. Usher accepted a produce clerk offer by phone but later told Customer Service Manager Cassandra Johnson he could not cut his hair for religious reasons. Johnson asked whether he would withdraw; Usher said yes. Usher secretly recorded three phone calls.
- The parties filed cross-motions for summary judgment: EEOC sought partial summary judgment on liability; Publix sought full summary judgment. Publix’s dispositive motion was filed two days after the CM/ECF deadline fell on a Saturday; the court declined to strike it.
- Publix challenged the authenticity and weight of Usher’s recordings; the court found Usher’s sworn declaration sufficient to authenticate the tapes for admissibility but left assessment of weight to the jury.
- The court held genuine disputes exist about (a) whether Usher informed Publix of a conflicting sincerely held religious belief and (b) whether his belief is sincere, so summary judgment was denied to both parties on failure-to-accommodate and failure-to-hire claims; the court granted Publix summary judgment on the constructive-discharge claim because Usher never worked and therefore had no intolerable working conditions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of Publix's dispositive motion | Motion filed within Rule 6 extension when deadline fell on Saturday; should be considered | Motion was untimely under case management order; should be struck | Court declined to strike; exercised discretion and found no bad faith or prejudice |
| Authenticity/admissibility of recordings | Recordings are authenticated by Usher’s sworn declaration and constitute evidence of what was said | Recordings unreliable: participants deny accuracy; expert could not confirm manipulation; mute-button speculation | Court found Usher's declaration sufficient under Rule 901 to admit recordings; authenticity challenges affect weight, not admissibility |
| Prima facie elements (sincerity and notice) for failure-to-accommodate/failure-to-hire | Usher holds sincere Rastafari beliefs requiring dreadlocks and informed Publix; recordings support this | Publix says dreadlocks are personal preference, not sincerely held religious practice, and employees deny being informed of a religious conflict | Genuine disputes of material fact exist as to both sincerity and whether Publix was informed; summary judgment denied to both parties on these claims |
| Constructive discharge (or whether he was hired) | EEOC treats withdrawal/offer handling as constructive discharge | Publix says Usher withdrew his acceptance and never worked, so no employment conditions to be intolerable | Court granted summary judgment to Publix on constructive-discharge claim because Usher never worked and had no intolerable working conditions |
Key Cases Cited
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary judgment standard)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (burden-shifting framework for discrimination claims)
- EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768 (employer may not refuse to hire for religious practice; notice and motivation issues)
- United States v. Seeger, 380 U.S. 163 (sincerity threshold for religious-belief claims)
- Wisconsin v. Yoder, 406 U.S. 205 (characteristics of protected religious practice in constitutional context)
- Tepper v. Potter, 505 F.3d 508 (elements relevant to failure-to-hire/accommodation analysis)
- Virts v. Consol. Freightways Corp. of Delaware, 285 F.3d 508 (employer undue hardship/de minimis accommodation cost standard)
- Chattman v. Toho Tenax Am., Inc., 686 F.3d 339 (causation and burden-shifting in discrimination cases)
- Johnson v. Kroger Co., 319 F.3d 858 (definition of direct evidence of discrimination)
- Union Independiente de la Autoridad de Acueductos y Alcantarillados de Puerto Rico v. EEOC, 279 F.3d 49 (credibility/sincerity inquiry in religious accommodations)