Equal Employment Opportunity Commission v. Geo Group, Inc.

(8d Cir.1990)). directly it 84, though prosecutor’s Al- went F.2d Ryan, 909 suggesting exercising peremptory are the frame of mind in though we only consider the court should challenges during district the selection of the sec- 1No. on re- strike of Juror prosecutor’s Thus, jury. say we cannot that mere- ond 1, mand, No. do that if Juror we note ly allowing pro defense counsel a forma 1,No. because of his only Juror was struck an is con- opportunity to submit affidavit race, challenge then Batson should inquiry with the kind of serious sistent sustained. have been third required step.9 under Batson’s compounded by the The error here is IV. Conclusion refusal allow evidence of the

court’s to the prose- between alleged conversations the case to Accordingly, we will remand that could have cutor and defense counsel evidentiary an the district court to hold counsel’s claim of supported defense hearing opinion.10 with this consistent evidence, accepted, if could That bias. prosecutor be- established that have he a conviction get

lieved that failed to sym- of first because trial

Coombs’ evidence, juror. Black Such

pathetic explana- against prosecutor’s

viewed “just like” one that he didn’t

tion (who jurors he conceded he

prospective strike) good may no reason to well EQUAL had EMPLOYMENT objective an fact have caused finder COMMISSION, OPPORTUNITY challenge Batson conclude Coombs’ Appellant have been sustained. should v. realize, course, coun- defense We GROUP, INC. The GEO out court put alleged able to sel was prosecutor before the statement No. 09-3093. However, in an that is a court affidavit. Appeals, United States Court inadequate for a hear-

woefully substitute Third Circuit. Moreover, these circumstances. ing under already had that the court it is obvious Argued Feb. 2010. challenge that the Batson determined Aug. Filed: irritating meritorious. It had than more proffered already explained that evi- anything” was “not even

dence relevant that, remand, district argues We state that this evidence should assume 9. The weight evidence, give the evidence whatever court will hearsay determina- be excluded notwithstanding initial the court’s deserves made trial court. How- tion not the state ignore it relevant to inclination to as "not ever, clearly offered to es- the evidence was anything.” prosecutor’s It was state mind. tablish juror that a Black not offered establish authority "We have under the feder- do not during actually refused Coombs to convict statutes, § 28 U.S.C. 2241 or al habeas Therefore, hearsay. it is not Fed. first trial. petition corpus § to remand habeas 801(c) hearsay (defining as statements evidentiary hearing.” R.Evid. a state court for (3d Petsock, prove the truth of Keller "offered evidence v. Cir.1988). asserted”). matter accommodate the when failed to class them an providing exception members prison’s policy that dress otherwise wearing Muslim precluded them from head at work. coverings called khimars GEO summary judgment, arguing moved for part policy that a from its deviation A. Edge, Santiago-Flores, Dawn M. Iris hardship by compromis- cause it an undue Equal Opportunity Commis- Employment security interests in ing its institutional PA, Lee, sion, L. Philadelphia, James safety. had Although and the EEOC filed Davis, Wheeler, Carolyn Lorraine L. C. summary judgment, a cross motion for on (Argued), Equal Em- Elizabeth E. Theran appeal it the District argues Court Commission, ployment Opportunity Wash- questions erred of material fact because D.C., Attorneys Appellant. for ington, accommodating exist about whether the Gonzales, Santarone, Joseph J. John P. class would in fact constitute an undue Jr., Marshall, Warner, Dennehey, Coleman for GEO. Prussia, PA, F. Goggin, King & Walter GEO is a international private, corpora- Marshall, Kawalec, Denne- (Argued), III that, things, tion other related among runs Warner, Goggin, Cherry & hey, Coleman prisons federal and in the state United Hill, N.J., Attorneys Appellee. for Thornton, Facility Hill States. The ROTH, SLOVITER, Before: Pennsylvania “pretrial holds detainees and TASHIMA,* Judges. Circuit county sentence persons serving of two

years day less or a state one sentence of THE OF COURT OPINION years day.” Appellant’s five one Brief less omitted). (quotation During at 3 rele- SLOVITER, Judge. Circuit period Raymond vant Nardolillo was the Facility at warden the Hill and Matthew I. Holm, August 2004, who was hired was Employment The Equal Opportunity deputy In February warden. about (“EEOC”) appeals Commission from 2008, Holm became warden of Hill granting decision of the District Court Facility. defendant, judgment motion summary (“GEO”). Facility Hill April Inc. is a instituted Group, GEO provided that was a dress private company policy “[n]o contracted to hats caps permitted run the Hill Facili- or will to be worn in the George W. Correctional (the facility ty Facility”), “Hill which is the unless issued with the uniform.” Pennsylvania. also County, App. for 207. The new stated Delaware “[sjcarves jackets pursuant and hooded complaint EEOC filed its to Title past Act Rights permitted sweatshirts will not be VII the Civil 2000e, seq., et amended, App. §§ Front Security on Desk.” U.S.C. interpreted to employ- pro- of Muslim women These directives were behalf of a class khimar, ees, that GEO violated Title VII’s hibit “Islamic alleging scarf, religious designed to cover the prohibitions on discrimination head * Tashima, Circuit, sitting by designation. Judge Ninth A. Wallace Senior Honorable Appeals of the States Court of for the United

hair, forehead, neck, headgear of the “zero sides shoul- enforced a tolerance ders, policy----” Br. chest,” Appellant’s at 6. Accord- which was until then GEO, no-headgear policy some female Muslim worn adopted security reasons Facility. App. of the Hill inside prevent the introduction of contraband into prohibitions April To reinforce the facility and avoid misidentifi- hats, hoods, on head scarves and Holm cation. October issued memorandum Three women employees Muslim POLICY,” entitled “UNIFORM Hill Facility, Sharpe-Alien, Mar- Carmen stated: Moss, quita Rashemma King, protest- and employees, Reminder! All while on ed, claiming khimar the duty, will if wear required, an offi- by was required religion. the Islamic uniform, cial GEO which adheres to the They sought exception policy, to the standards, dress code and described in arguing April that before the 2005 dress includes, Policy 300.19. This but [is] not code, they been wearing style had all some length hair, of your limited to the of khimar covering or head at work. After scarves, jackets, hooded sweatshirts and April instituted, the 2005 dress code was specifically following hats. The are ex- they prevented doing were all from so. cerpts policy: form the [sic] Sharpe-Alien was hired as a medication “No will be caps permitted hats or to Facility nurse at Hill During the 2004. facility be worn in the unless issued with her interview that position she ex- the uniform.” plained required faith her her to wear “The Uniform below described is not khimar, a willing and that she “wasn’t to altered, modified, be to or embellished compromise” concerning upon. Only approved by items the War- her khimar App. at work. at 43. Accord- will be den authorized.” ing to Sharpe-Alien, the interviewer told subjected Those not to the her that prob- didn’t see it being “[h]e uniform Facility will adhere App. lem.” at 44. Part Sharpe-Allen’s code, posted dress which is at the Front job Facility initial at Hill “go was to Security Entrance Scan. Post/ION from “dispense cell block to cell block” to hats, caps This means that all or reli- accompanied by medication” “offi- gious permitted attire will not to be cer.” App. at 45. with your by worn uniform or non-uni- In early 2005, Sharpe-Alien became formed employees specifically unless au- nurse, chronic disease position infectious thorized At this Warden. time in which “closely she worked with the doc- hats, there are caps no authorized tor” in infirmary “with the inmates attire, which worn jail can be inside the diseases, who had hepa- infectious such as exceptions and there are poli- no this titis, ... [and] [to] HIV sure ma[k]e cy. medication, got their made sure [and] App. it was [and ordered.... which did she] After the PPDs, October memorandum all of which is the tuberculosis issued, test, was Holm Nardolillo adopted prison.” for the entire at 49. App. Although appear many there to be complaint, accept different we will it as an khimars, styles party attempted neither has description applies accurate khi- to describe the at issue khimars here with mars worn class members. particularity. quoted definition is from prisoners. warrant check” on new mid-July “beneh through November “From would also have correc- App. on med- at 129. She went out Sharpe-Alien when bring prisoners to work individual leave, her khimar tions officers she wore ical questions Br. them Facility. Appellant’s her so that she could ask daily at” the Hill Sharpe-Alien preparing computer. their answers into input at 8. When leave, officers, that medical she had no to work from the corrections to return Unlike tell her that she could colleagues keys facility. called to At her interview for khimar when [she] c[a]me “wear wore her khimar and a veil. job, King [her] Sharpe-Alien App. to work.” if King back asked she would The interviewer in human re- spoke work, with someone King agreed then take her veil off at Facility who told her at the Hill sources acceptable. There was no that would be App. khimar would be an issue.” that “the King’s khimar the inter- discussion result, Sharpe-Alien asked at 54. As a view, it to work for the and she wore first Nardolillo. speak with Warden years employment. of her five when she Sharpe-Alien, to According 2005, King In was told a October spoke,2 the warden told her and Nardolillo employee fellow that she and other Muslim against enforced policy the would be longer allowed to wear women were no willing to asked if she would be her but King their khimars at work. then called ” hairpiece.... headpiece [or] a “wear who, according King, to Warden Nardolillo Sharpe-Alien He also told App. at 58. that she “will be fired if [she] told her it, there, “job if wanted [she] that her was at work. a khimar on head” ha[s] [her] khimar,” wear but just [her] couldn’t [she] this new situa- App. 131. Stressed to work without the if she refused tion, for the next four to King took leave prison would have to resign, khimar or returned, King she took six weeks. When told Sharpe-Alien App. fire her. khimar at work. off her enjoyed job her that she Nardolillo presented khimar had never that the began working as a Rashemma Moss that she past, in the but also problem Facility Hill correctional officer at the wearing the compromise about would 2002, job re- March a which sometimes 2005, Allen In December khimar to work. to inmates and quired her to be close that “she had ground fired on the was physical into con- even to come sometimes ‘effectively job’ by her Te- abandoned 2005, July In after Moss tact with them. with directive to fus[ing] comply [the] to Muslim confession took her Shahada —“the wearing of to work without return faith,” Br. at 6 n.2—at work Appellant’s ” (quot- Br. at 10 Appellant’s khimar. her’ her hat a began she to wear underneath 216-17). ing App. would triangle shaped underscarf she meeting In a her head. woman who tie around Marquita King is a Muslim Moss that Nardolillo told Facility July 2000 October at the Hill was hired scarf, longer no wear her head she could prison: at the specialist” as an “intake suspended without and that she would be process to paperwork who does the person Thereafter, stopped Moss if did. facility. King’s job pay she into the prisoners new wearing head scarf to work. her performing duties as entailed such position at ny, took the consistent two Nardolillo Sharpe-Alien testified that she had warden, meetings could not meetings with the but she receive an that she would not both exactly transpired what at either of remember exception the no khimar rule. According Sharpe-Allen’s testimo- them. plain- symbols as September religious garb EEOC tiff, Sharpe-Alien charging as part as the uniform” and therefore pre- party, complaint alleging that GEO filed Muslim cluded women from khi- prohibitions VII’s on reli- violated Title job, mars on the not a violation of gions when failed to discrimination GEO In granting Title VII. Id. GEO’s motion beliefs of accommodate summary judgment, for the District Court and other Muslim Sharpe-Alien female “no meaningful concluded there was by refusing requests employees GEO guards distinction between and sim- Facility’s for an to the Hill dress exception hand, personnel, ilar on the police one have them that would allowed officers,” who were at issue in Webb. wear work. khimars at Inc., v. Group, EEOC No. 07-cv- 04043-JF, 2009 WL at *1 summary judgment,

GEO moved (E.D.Pa. 2009). May The Court also part asserting the affirmative defense that stated the “same considerations ad- would be an undue matter to justify regulation question vanced Muslim law for the allow its apply equally guards to prison and em- complete exception ployees working in medical depart- non-headgear policy because such ac- ment.” Id. compromise pris- commodation would security on’s interest in and/or in more than de minimis result cost. II. on opposed EEOC motion the Our review of District the Court’s

ground that these interests were insuffi- grant of summary is founded, judgment plenary. ciently relying heavily on re- (3d v. (the Danberg, Jackson 594 F.3d port expert, Camp of George its Cir.2010). Summary judgment “should be “Camp Report”), which generally conclud- “(1) if rendered professed pleadings, discovery ed that: GEO’s reasons for file, and any disclosure materials on and denying any of its female employees the affidavits show ability genuine to a khimar there is no wear lack merit and substance; (2) any issue as to GEO made no at- material fact and that genuine to, tempt of, is judgment nor reasonable offer an alter- movant entitled to as a matter (of exist) 56(c).3 native which of method several for law.” Fed.R.Civ.P. khimar; accommodating wearing VII of Rights Title the Civil Act of 1964 (3) [tjhere is no sound cor- legitimate reads, in relevant part: deny

rectional for reason GEO to its fe- (a) shall employment It be an unlawful male to employees wear a khimar within an practice employer— for the secure of perimeter facility.” App. (1) fail to or hire refuse to or to dis- charge any individual, or granted

The District Court otherwise GEO’s mo to tion, finding against any discriminate individual dispositive this court’s reason ing City of Phila., terms, Webb to respect compensation, v. his con- (3d Cir.2009). ditions, privileges employment, Webb held or this court of be- adopted by the dress code Phila cause such ... religion individual’s delphia police, ...; which did not or “authorize[ ] jurisdiction § The District had Court under 28 28 U.S.C. jurisdiction § U.S.C. 1331. We have under (2) limit, employee female found classify or his one Muslim segregate, to to fulfill the applicants employment hairpiece for was sufficient reli- employees or deprive tend hair. way gious requirement which would or to cover her any We employment persuaded argument. any individual are not this deprive adversely or otherwise af- opportunities proposed There is no about the evidence employee, fect because hairpiece any his status nor details about the Muslim religion.... ... individual’s employee acceptable. such it who found We are unwilling matters of delve into the- 2000e-2(a). “Religion” § is de- U.S.C. ology, will therefore decline GEO’s aspects religious “all fined to include might invitation decide on our own what belief, practice, as well as observance constitute a reasonable substitute for a he employer demonstrates that unless an khimar under the Islamic faith. GEO does reasonably to an accommodate unable challenge the assertion of the three religious ... observance employee’s Muslim believe wear- undue practice without integral the khimar is to their religion, employer’s business.” Id. conduct of proceed and we on the basis that this is 2000e(j). § their sincere religious belief. recently “To This court has stated: with the made informed her establish hardship upon ness.” Id. shifts to the 562 F.3d at 259. (1) discrimination, an commodate conflicts (8) she she holds accommodation good-faith with a conflicting requirement.” (citation disciplined prima employer a sincere employer of the religious job requirement; effort facie case employer would work an undue omitted). employee “[T]he to show belief, to failing reasonably burden and its busi conflict; must show: either or [2] belief that religious comply (2) Webb, [then] ^[1] such she ac the Hill ble that before he became testimony fornia. new Taft Correctional Institution as the lead summary judgment, on the ous GEO wardens. Warden Holm testified In response to the EEOC’s motion for for “initial criminal crimes crimes proffered Camp Report Facility, of the three female that committed committed investigator position, he had previously which relied testimony of the by and the deputy he was for GEO at the inmates, investigation inmates.” in employees, warden at Taft, deposition primarily responsi- all worked App. Cali- seri- two on at 169. focus” was on “in- argue “personal the EEOC His GEO does affairs, prima failed facie case. In- ternal violations of rules present to stead, App. investigated that it staff.” at 169. He argues plaintiffs GEO offered GEO accommodation, for, things, having intro- by offering among “a staff other reasonable and for permit employees prisons, to the Muslim women to duced contraband to “ac- tually distributing place selling wear khimar” controlled hairpiece App. substances inmates.” at “it fulfills the stated re- because investigator quirement Ap- that the hair be Holm was also the lead of “a covered.” 13-14; fairly large the Taft Br. at see Ansonia Bd. disturbance at Correc- pellee’s Philbrook, 60, 68, approximately Facility 479 U.S. 107 tional that involved Educ. v. (1986) 1,000 inmates,” an incident (noting L.Ed.2d 305 that he S.Ct. ” described “more or less a riot.... is “no basis either the statute as there Holm, history requiring App. According its an legislative investigation “issues about identi- any particular choose reason- involved employer to accommodation.”). fication of inmate and video surveillance.” able GEO notes that App. working at 169. Before with the close ... [so distorts the view of that] Group, police Holm was a California you they face and can’t tell who are years. officer for 18 they App. when walk out.” at 183. year In the after Holm was hired at the experience Holm’s was that “during the Facility, Hill he and Nardolillo made nu- riot Taft Facility Correctional based on changes prison’s policies merous surveillance, the review of video which is they perceived pris- what address what based most of investiga- [GEO] [its] ... improve perform- on’s “need[ ] tion on.... there were probably better facility ance of the and the staff and to than 300 or 400 inmates that [GEO] security tighten a things enhance few identify couldn’t ... simply because up.” App. thing at 171. One that Holm cap App. had baseball on.” at 184. despite had a long-stand- noticed was Moreover, put one “inmate a hat ... on ing, apparently unspoken ban on change[d] pulled shirt ... [his] hat over [a] employees wearing hats, unauthorized his face and walked out the front door.” ban was not well-enforced. Although the App. result, at 203. As a ap- Holm only hats that were authorized were a proached Nardolillo to crack down on em- black hat with logo baseball the GEO ployees wearing unauthorized hats and outdoors, and a knit cap that could be used “headgear.” other Holm had observed wearing un- authorized hats with logos, “different dif- When asked for additional reasons for things ferent that weren’t appropriate to why this no-khimar adopted, the uniform of the GEO Group,” App. at Holm opined that a head scarf could be hats “backwards and away “taken from an individual and used sideways,” App. During at 183. depo- his them, against form of a choking sition, Holm also recalled one incident of movement.... [i]t could be used aas re- an employee wearing a “New York Yan- straint ... device provides [and un- it] kees hat baseball inside the institution wanted material grab for inmates to ahold App. while full uniform.” against use staff.” App. [the] and/or distinguish 201. Asked to dif- part

This concerned Holm in because of presented ference by a “head covering” his view that “the band inside of a baseball presented by and that “someone’s shirt or cap place excellent to hide small pants,” someone’s Holm answered that a of narcotics amount[s] and small amounts khimar, if “grabbed from the behind wire, of knife, contraband. A a any- small it, the of ... immediately sides becomes a thing go can in App. there.” at 183. instrument,” 201, choking App. at as would “[A]nother issue” he had with employees tie, a man’s an item clothing of gener- hats was also personal “based on [his] ally anyone forbidden for who experience”: the “has direct “identification of an indi- contact daily basis....,” with inmates on a vidual a hat when would be App. at 202. Holm portion inside secure also noted that prison] [the] the be- [of ... a “khimar rely where we cause heavily right [has] [a] on video band across surveil- ... lance a the forehead and ... it pieces [because distorts the has the two hat] iden- tity of the individual of that wearing the material come down cap, the side of face, which to me is an overall safety anything [the] and securi- that casts shadow on ty prison face, issue for the because it would the be it from above or the side ... entirely possible shadow,” for an get inmate to casts a making identification dif- shirt, put on, uniform pull hat App. it real ficult. at 202.

273 erings “smuggling in are explained prison also that the of Nardolillo Warden contraband, new zero-tolerance misidentification and the justification the use the strangulation weapon was instituted because of khimar as a headgear [a] security that have had some issues Appellee’s with an “[w]e conflict inmate.” Br. problematic. becoming extremely were at 17. the increased intro- primarily being One the agree We EEOC that the Webb contraband, drugs, specifically of duction purport per court did not establish a se App. institution.” at 75.

into the coverings rule of law about head Holm’s The EEOC characterizes testi- govern “that in all or reli- “utterly and concluso- mony speculative as gious cases, ‘paramilitary discrimination all However, Br. ry.” EEOC Holm cases, organization’ police even all de- prior experience significant had partment Appellant’s Br. at cases.” 31-32. administration, practical experi- disagree. Nonetheless, GEO does not weight ence adds to the concerns that he by analogy, Webb is relevant to this case no-headgear as the for the expressed basis security and uniformity as some interests policy. We must therefore decide whether police implicated held force are also necessary showing GEO made context. hardship defense.

undue court, In sup- its brief to this also ports headgear policy its no “due to its hardship”

An is one that “undue legitimate effect on interest re- [its] [ ] minimis in more than a de cost to results quiring uniformity of appearance among (cit Webb, employer. 562 F.3d 260 prison employees promote an environ- Airlines, Trans World Inc. v. Hardi corps.” ment of discipline esprit an de 63, son, 84, 2264, 432 U.S. 97 S.Ct. 53 Appellee’s Br. at 19. It notes this (1977)). 113 “Both economic and L.Ed.2d interest cited in Webbwhere we stated pose costs can undue non-economic ” requirements “that crucial uniform are (cita hardship upon employers.... Id. (so public of officers omitted). In deciding tions whether undue identify genuine, will be able officers as exists, specific focus on “[w]e based their uniform mo- appearance), case, looking of each context both the esprit corps, public rale de confi- magnitude fact as well the al police.” dence in the 562 F.3d at 262 (citing leged hardship.” undue Id. Protos (citing Fraternal Order Police Newark Am., Inc., Volkswagen v. Newark, City 170 Lodge No. 12 v. F.3d Cir.1986)). (3d Webb, we stated (3d Cir.1999)). points The EEOC Supreme decision in Court’s City Philadelphia out that unlike Airlines, Trans World U.S. Webb, refer to GEO’s witnesses did not “strongly suggests the un S.Ct. uniformity appearance justification of as hardship test a difficult thresh due is not code at the sum- for GEO’s dress Webb, F.3d at A pass.” old to 260. mary stage, that judgment suggesting this that religious accommodation creates a afterthought was an that arose after genuine security risk can un fact, opinion was In both Webb filed. doubtedly constitute an undue above, testify did about their concern noted the wardens employer-prison. an As of uniform security regarding employees’ lack specific risks that GEO (Nardolillo) App. at regarding appearance, of head cov- see 77-81 asserts (Holm).4 (1) App. ny at 183 Even the of Holm and Nardolillo that khi- “that uni- expert Camp mars, hats, concurred EEOC’s like used smuggle could be to only agen- should wear employees formed into contraband and around the Hill Facili- items.” cy App. (2) issued at It visible that ty, khimars can used be to conceal unnecessary for us to whether is decide wearer, identity which creates support summary this would interest alone (3) misidentification, problems of that judgment, decide the as we case on differ- against khimars could be prison used a grounds. ent sure, in an employee attack. To be GEO acknowledges that were no reports “there argues that the that it GEO also costs types of these of at incidents Hill [the adopt would incur to the accommo- were Facility] during Warden Nardolillo’s and requested employees dation the Muslim Warden Holm’s at the facility,” tenure[s] allowing to wear khimars would them agree but we that prison a respect “cause an burden with undue “should not have for a to wait khimar to prison Appellee’s resources.” Br. at 18. be actually used an unsafe or risky GEO, is According to this because “Muslim manner, risking employees harm to or in- employees freely female can move mates, before this foreseeable risk is con- throughout prison]” and do- [the “[w]hen sidered determining undue hardship.” pass through so ... must numerous Br. Appellee’s words, at 17. In other be- pass checkpoints por- between secured prison setting, “[i]n cause the safety of facility” “approxi- tions of including employees is of top priori- inmates mately entry/exit different doors [sixteen] ty.... prevented] [GEO] should not be that are monitored closed-circuit video countering, from through appropriate poli- cameras at which visual identification/rec- cies, risks might posed which be by the ognition prior required being is to the door plaintiff[s’] preferred accommodation.” opened.” electronically Appellee’s Br. at Appellee’s Br. at 17. 18. Although entirely GEO has not con- adopting vinced us that the proposed ac- assuming present Even khimars only a of allowing commodations Muslim female small threat of the dangers, asserted employees removing to wear khimars but present do threat which is something checkpoint them at each require would that attempt GEO entitled to prevent. locking prisoners down the in each such GEO, To the fact that inmates have other location, recognize we adopting clothes could also used to strangle proposed procedure necessarily re- guard “does not mean the facility quire some additional time and resources out banning would be of line in something officials. else which can also be used as such a analysis, In last GEO’s no weapon,” especially given a khimar headgear policy must stand on the testimo- have a legitimate jus- does not penological Webb, there uncontradicted evidence hats and the need for staff adherence to the Philadelphia Department Police had pres- dress code order for the a "vital” maintaining appearance interest in disciplined its "uniform ent of a See, symbol government authority, (Nardolillo); neutral e.g., App. staff. expressions personal religion, (Holm). free from App. Similarly, the con- Webb, bent or bias.” 562 F.3d at 261. Al- cern referred to in Webb about the need for though warden police present neither in this tied the appearance case uniformity appearance staff, requirement neutrality of applicable prison to safe- is also concerns, ty reject cannot completely judicial we take prevalence we can of the notice wearing religious concern about staff groups prison. unauthorized of different within a balance called making the kind of delicate argues It Br. at 36. Appellee’s tification. for in this case. khimar is clothing, “the unlike other head, guard’s the already located about in held opinion court’s recent Webb This already.” Ap- the neck virtually around the sincere notwithstanding Br. at 36. pellee’s police officer of the plaintiff beliefs khimar, that belief was need to wear by parties the presented arguments The police department’s pol- subordinate The has a close case. EEOC make this a khimar the of icy prohibiting steps to enforce history taking enviable “ undoubtedly an inter- ‘safety is because religious discrimi- against prohibition ” Webb, importance.’ greatest est of the sincerity in and its many forms nation (quoting at 262 Fraternal Order appli- arguments against of its support 366). Police, 170 F.3d at District Muslim headgear policy no cation of the by relying on did not err Webb Court khimars is evident. summary judgment to GEO. We granting hand, an over- prison has the other On in balancing the same result reach safety of to ensure the riding responsibility here. respective considerations staff, A visitors. its and the prisoners, its comments of our respond We camp prison is not a summer prison colleague. Judge Tashima dissenting pre- the unenviable task officials have acceptance with our of GEO’s takes issue circumstances. serving order in difficult no-headgear policy that its explanation i.e., safety, preven- based on its interest Court, Supreme Wolfish, In Bell v. contraband, the introduction of tion of regula- different albeit faced with proffered that the ac- the undue under challenged that were tions would entail. He has commodations Amendment, Gov- noted that “[t]he Fourth the reasons lengthy impugning discussion legitimate interests ernment also has Deputy given by Warden Nardolillo facility manage from its need stem (later Warden) Holm for the Warden is detained.” in which the individual criticism policy. We find that change 520, 540, 60 L.Ed.2d 99 S.Ct. U.S. unfairly cynical. (1979). noted that The Court also “unique plaee[s] fraught are prisons the Hill Holm had transferred to Deputy and therefore security dangers” serious working after for another Facility of a detention management effective years. App. at 170. facility six may justify objective that facility is a valid focused on internal capacity In that he conditions. Id. imposition staff, of various affairs, rules violations of the case, the In that Court alia, 99 S.Ct. 1861. of contra- including, inter introduction courts to make cautioned the federal previously He had App. band. management inquiry into eighteen limited officer for police a state been ‘judgment Thus, range wide it should not years. App. “[t]he because and statuto- constitutional that after he was surprising calls’ that meet be considered Facility confided to officials he re- requirements are to the Hill ry transferred testi- security procedures. Branch of Govern- His outside of the Judicial viewed the any suggestion Al- mony persuasively 99 S.Ct. 1861. refutes ment.” Id. at and Holm remarks to that Nardolillo not take those the Dissent though we do in- about the actually concerned upholding courts from were deter federal of contraband. Holm testified pris- troduction rights prisoners constitutional was the sub- of contraband alike, in that the issue they must be considered staff “probably entirely with Nardolillo would alleviate ject discussion mars the App. bandana, too, at to 100” times. 173. Certain- concern close as a could be used not be ly prison facility weapon. policy should faulted for as a A prohibit blanket to strengthened making changes except its se- all headgear those issued the curity by a policies when reviewed new set prison uniform the seems sensible solution. eyes. Judge em- Tashima notes that kitchen downplays The Dissent GEO’s claim ployees frequently pris- who interact with suggested by that the accommodations the oners continue to wear hats within the hardship. EEOC would undue cause The facility. secure Had the EEOC raised khimar-switching proposals, either switch- Court, that issue in District un- the removing khimars or them at check- doubtedly pointed have to Nardolil- facially implausible are points, and time deposition testimony lo’s were there consuming. They would need to be re- specific safety applicable measures to moved, folded, and in a stored locker not fact, App. kitchen workers. at 79-80. yet noting available. It is worth that there Pennsylvania the pro- Administrative Code precautions are elaborate taken when visi- vides: prison tors the wear khimars. A female requirement. General Employees shall escorts officer the visitor the ladies’ hats, wear hair restraints such hair removed, room where the khimar is nets, coverings or beard restraints photographed, visitor the khimar clothing hair, body that covers are replaced. process This entails considera- effectively designed keep and worn to staff, time ble and effort for the but the food; their hair contacting exposed from necessary authorities deem it to protect linens; clean equipment, utensils and against 102-03, App. at contraband. unwrapped single-service sin- The Dissent apparently believes it is gle-use articles. unlikely may that a khimar be used to 46.152(a). § Anyone Pa.Code who has strangle the wearer. The posits Dissent visited a many prison- will observe possibility that a khimar could be worn hair, long, ers with unruly, sometimes aas bandana is worn. See Dissent at 284 sanitary by concern addressed general n.l. The EEOC never introduced a khi requirement state that kitchen workers Although mar into may evidence. khimars Moreover, who handle food wear hats. shapes come different and sizes we note kitchen Facility workers at the Hill were description by adopted sister circuit permitted wear the hats outside that stated khimar is a “[a] traditional at App. kitchen. 80. The Dissent’s garment worn Muslim women that cov reference to just kitchen hats is another forehead, head, ers the of the sides neck red herring. shoulders, chest and sometimes waist,” Servs., Kelly EEOC v. appears place F.3d Dissent more reli- (8th Cir.2010) 1023 n. 1 (quotation testimony ance on the of the ex- EEOC’s omitted), description and citation pert similar testimony witness than that provided experienced the EEOC’s prison officials on the complaint. site If that garment were the size worn issue. The view Dissent’s of how a member, a staff possibility run, particularly of stran should be its minimization gulation lightly. should not taken security Nor concerns motivated explain does the Dissent allowing change how Fa- headgear the Hill Muslim women to cility, wear bandana-like khi- runs we counter direction

277 alleging religious prohibited discrimination by Supreme Court given have been Rights Title VII of the Act of Civil which stated: (“Title 1964, VII”), 42 as amended U.S.C. inordinately an diffi- Running prison a 2000e, majority seq. § et The holds that requires expertise, that undertaking cult requiring GEO to accommodate the wear- of re- and the commitment planning, khimars its Muslim women em- ing of sources, peculiarly are with- all of which ployees would work undue legislative and province of the in the conclusion, it reaching But GEO. government. branches of executive give testimony credence to the chooses is, moreover, a administration Prison Raymond Depu- and of Warden Nardolillo committed to the task that has been ty Matthew Holm khimars Warden branches, and of those responsibility safety prison, within the pose a threat counsel a powers concerns separation Maj. Op. ignore ample and to judicial restraint. Where policy of contradicting in the record evidence involved, system is federal penal state so, undermining testimony. doing ac- have ... additional reason to courts majority summary our apply fails to appropriate cord deference review, judgment standard of which re- authorities. plenary to conduct a review of quires us 78, 84-85, Safley, 482 107 Turner v. U.S. all in favor the record and draw inferences (1987). 96 L.Ed.2d S.Ct. See, non-moving party. e.g., of the Webb recently (3d en banc Ninth Circuit Phila., As the City 562 F.3d v. stated, obligation comply Cir.2009). is “to thus, its majority, effectively The GEO, direction that we not Supreme employer Court’s moving relieves as the concerns, judgment our for that of correc- party asserting safety substitute City facility proving officials.” Bull v. burden of the existence of the tions Francisco, concerns, asserted as well as of the Cnty. San Cir.2010) (citation omitted). (9th magnitude fact and of the asserted hard- accommodating plaintiffs religious

ship I agree approach needs. cannot that this III. result are consistent with Circuit its will affirm the District Accordingly, we law. summary judgment granting Court’s order Viewing light the record in the most to GEO. to the nonmovant EEOC and the favorable represents it employees Muslim women TASHIMA, Judge, dissenting: Circuit drawing all (collectively, “plaintiffs”) and majority misap- I believe the Because inferences from the evidence reasonable longstanding law on how plies both Circuit favor, has not demonstrat- plaintiffs and, summary in do- judgment we review accommodating plaintiffs’ religious ed so, ignores our substantive Title VII khimar practice would com- law, I respectfully dissent. promise its interest in a manner Inc., Group, private corpora- The GEO without prevented could not be tion, George Hill hardship” upon runs the W. Correctional an undue “working] (the Facility “prison”) summary judg- under contract with such that it is entitled to whole, County, Pennsylvania. as a Delaware ment. Id. When considered before us would allow reason- Equal Employment Opportunity Commis- the record (“EEOC”) not make a jury on behalf of a able to find that GEO did sion sued GEO GEO, reasonably accommo- good-faith effort of Muslim women class issue,” religious practice date of its Muslim given it should be great weight. employees. Maj. women See id. at 262. That Op. at 276. A trier might very of fact jury agree, could also find that allow- summary reasonable well but “at the judgment ing its Muslim women to contin- stage, judge’s function is not himself to wearing ue their khimars at work would weight the evidence and determine the hardship upon work an undue truth GEO. of the matter but to determine would, therefore, I Id. reverse the District genuine whether there is a issue for trial.” grant summary of judgment Inc., Court’s Liberty Lobby, Anderson v. 477 U.S. 242, 249, 2505, GEO. 106 S.Ct. 91 L.Ed.2d 202 (1986). judge “[T]he must ask himself not A close examination the record re whether he thinks the evidence unmistak testimony veals that Nardolillo and Holm’s ably favors one side or the other but how, about why, and when the khimar a jury whether fair-mided could return a policy changed internally inconsis verdict for the plaintiff on the evidence tent question by and is further called into 252, presented.” Id. 106 S.Ct. 2505. testimony of other witnesses and engage We must not in making GEO’s own business records. The record “Credibility determinations, weighing also supports the inference that GEO’s evidence, of the drawing and the of legiti stated banning rationales for may khimars mate inferences from the facts” as these pretextual be highly speculative. and are functions, jury “are not those of a judge, majority The analysis characterizes this ruling he is [when] on motion for sum “unfairly the record as cynical.” Maj. Op. mary judgment.” 254, Id. at 106 S.Ct. I merely believe that it is Thus, purpose my “cynical” application proper standard of re analysis of the facts is simply to follow the view. Supreme The long ago Court “ Supreme Court’s mandate that “[t]he evi adopted this Circuit’s rule that ... ‘[i]f believed, dence of the non-movant is to be any there is evidence record from justifiable and all inferences are to be source from which a reasonable inference drawn his favor.” Id. in the [nonmoving party’s] may favor be drawn, the moving party simply cannot Facts ” obtain summary judgment.’ Celotex Catrett, Corp. 317, 2, v. 477 U.S. 331 n. Sharpe-Alien Carmen 2548, (1986) S.Ct. 91 L.Ed.2d (quoting Sharpe-Alien Carmen began wearing Japanese re Elec. Prod. Antitrust Li the khimar overgarment up that make (3d tig., 238, Cir.1983), rev’d hijab when she converted to the Mus- on other grounds sub nom. Matsushita lim faith by taking shahada, nearly her Elec. Indus. Co. v. Corp., Zenith Radio 475 decade before she became a employ- U.S. 106 S.Ct. 89 L.Ed.2d 538 ee. JA 39. Sharpe-Alien wore her full (1986)) (omissions Celotex) (emphasis hijab November, to her 2004 interview for added). “[A]ny doubt as to the existence a position as a medication nurse at the of a genuine issue for trial should be re prison. nurse, As a medication she would against solved moving party.” Id. at required to visit the cell-blocks within 2, 106 331 n. S.Ct. 2548. the secure area of the daily on a majority clearly testimony finds the basis. According to the dress code on of Nardolillo persuasive, and Holm to be time, record at that scarves that, and believes testimony as the of “ex- were not allowed within prison past perienced prison officials on the site at certain security station. Yet that Marquita King enforced, Sharpe- appeared not to be posed a khimar practice Allen’s Marquita King has worn a khimar dur- hired. getting for her no obstacle years all of the that she has been a Muslim, practicing from 1993 to interview, inquired about During the she after 2004. JA 124-25. Like Sharpe-Al- to wear her she would be allowed whether ien, she was hired while tradition- be- position, attire in her new garb. al Muslim interviewed for She her willing compromise” “wasn’t to cause she position specialist as an intake in 2000 wearing prison her khimar. JA 43. The long overgar- while dress and all medical staff mem- required dress code attire, part ment that were of her work, matching to bers to wear scrubs as well as a khimar and veil over her face. green. 209. Be- purple and teal JA 127. Her JA interviewer asked whether overgar- did not own Sharpe-Alien cause she would be able to remove her veil when uniform, ments in the colors of the medical prison facility she came to work at the so interviewer, “I would be will- she told the that her face could be seen. JA 127. scrubs, definitely ing to wear but King confirmed she could remove the my khimar.” JA 43. compromising wasn’t veil while at work and she was offered the Her interviewer told her that she could job during immediately her interview and khimar, he have to ask wear her but would accepted. appears job JA 127. It that the else whether she could wear an someone that having interviewer believed a veiled overgarment instead of medical scrubs. face would compromise within the job 44. offered the at the JA She was unacceptable, and be but interview, accepted spot. on the JA only a khimar would not. Sharpe-Alien agreed 44. Because to wear King doing paperwork worked in an of- khi- the uniform medical scrubs with her setting. fice 129. JA Unlike correctional mar, inquiry no further was made about officers, keys she did not have to the facili- possibility wearing overgarment. ty. only 129. The time that JA she would 44. JA interact with inmates was when would brought holding from a area to her In a chronic Sharpe-AUen became desk a correctional officer so that she prison. infectious disease nurse JA input ques- could their answers to intake position, Sharpe Allen 48—49. this new computer. tions into her JA 129. longer required go was no to cell-to-cell working exclusively almost began As a member of the administrative and infirmary. only go 49. JA She staff, King required clerical was not to cells if she needed to check the results a uniform. 210. wear JA She therefore of inmates’ tuberculosis tests. JA 49. would not be bound to dress restrictions GEO, Throughout employment her she imposed only employees, on uniform such Sharpe- continued to wear her khimar. wearing only headgear as issued with one’s dur- posed Allen’s khimar no threat Instead, uniform. applica- the dress code ing required go the time she was position only required ble to her her later, daily Only on a basis. cell-to-cell professional wear attire at all times. JA mostly working she was an office During years King when was a interaction, did setting prisoner working pris- without at the practicing Muslim and on, khimar Nardolillo and Holm claim that her khimar with either she would wear her longer long part that it could no dress that is of Muslim reli- dangerous so long attire or slacks with shirts. JA gious be worn. interview, However, agreed upon 127. As in her she Moss decided that it would be veil work. did not wear her JA 127. supervisors best to confirm this with her prison, in August so she wrote Rashemma Moss a “letter security to the chief of informing Muslim, him that [she] was had began working [she] [tak- Rashemma Moss at the shahada, date, her en] on what prison in 2002 a correctional officer. what the As requirements officer, were that was stipu- a correctional Moss is the [sic] lated on religion, I employee [her] [her] involved in this suit who and what have to AR uniform, Repeatedly do.” had to wear a correctional officer receiv- response, no keys she continued facility, regularly informing had worked command, the next person in the chain the secured areas of the inmates, eventually writing Warden Nardolillo on responded use of force 24, October 2005. incidents. JA 155. Moss did not wear a interview, khimar to during her or the first The Prison Dress Code years GEO,

few employment of her with yet she was not a practicing Muslim. JA majority’s The discussion of the 151. dress code is inaccurate to the extent that it July 2005, shahada, indicates that of Moss took her new dress code adopted by thereby a Warden Nardolillo in becoming full-fledged April member of changed facility’s the Islamic policy faith. JA 151. In lieu on the hats, wearing khimars, wearing caps, an overgarment, exchanged any she or other headcoverings any her correctional in larg- officer uniform for a substantive See way. Maj. Op. er size “to suffice for not 267-68. Nardolillo showing [her] sign 21, did a shape so it new dress on tight-fitting.” April wouldn’t be code JA However, 2005. policy 158. To cover her hair in that new only accordance with made her one minor religion, change prison’s preexist- Moss began wearing an un- derscarf, ing general standards, grooming which she described as a “trian- which govern the gle-shaped” piece wearing headgear by of fabric that is em- “tie[d] head, ployees within the facility. around JA 77. [one’s] under the hat that The old prohibited was issued to dress code had part her as of her “scarves and uniform. jackets time, JA hooded or 156. Moss sweatshirts” from being testified that at that past worn already “mousetrap,” “undersearfs was which is an being [sic] worn,” beyond 77, area she had the front desk. already worn one to work JA previous and, time, policy prohibited on The new occasions at that those “it items from being past SCAN,” was common worn practice [among prison the “ION em- ployees] security the front head[s], to wear desk. things on JA 207. [their] necessarily underscarf, hat, a but a prison’s The previous dress code had scarf, a headband.” JA 157. been in February effect since

The record indicates that events stem- JA 207. Other than the change location ming from Moss’ conversion to Islam at which jackets scarves and hooded or prompted change in the removed, enforcement sweatshirts needed to be both of the dress code. Moss asked her union the 2004 dress code and the 2005 dress representatives whether there was code contained exactly the same language policy preventing her from a regarding headgear. Therefore, head there was covering in accordance with her faith and no material the official prison dress code was told that there was not. AR 157. regard to hats headcoverings be- they wanted to wear on their until time at which all three heads” tween employees began practice. he took action to end this JA 78. Muslim women plaintiff daily their khimars to work on Nardolillo testified that he believed the basis, 24, 2005, when Nardo- and October only appropriate situation which an em- employees a memorandum to lillo issued ployee covering could wear a head was if a wearing of hats. prohibiting the guard guard who worked at shack perimeter pris- outside of the secure of the unchanged portion prison’s of the granted permission on was personal his personal grooming pro- official ski cap wear GEO due cold winter modification], “alteration], or em- hibits However, temperatures. plain JA 83. uniform of the standardized bellish[ment]” language dress code that prohibited 207. It provided GEO. JA readopted existed 2004 and was Nar- jackets and hooded or sweat- “scarves in April dolillo allows hats to be worn being past specified worn shirts” from “in facility” if are “issued with the 207. And security screening location. JA uniform.” JA 207. Holm testified that caps will provided hats or “[n]o “there has ever been one official hat facility permitted to be worn unless issued with the uniform and that was to issued with uniform.” group that first in 1998 and hat to Moss testified that the she wore none of them wore it and it’s not in exis- part was issued to her as of her work anymore.” tence JA 185. That statement uniform. JA 156. Under the dress official directly by is contradicted GEO’s own rec- written, should therefore have code as she ords, cap which indicate that a continued to wear the hat within the been allowed to be issued to correctional officers facility. directly This contradicts Nardolil- prison part through as of their uniform testimony that no hats could be worn lo’s 2005. JA 80. Nardolillo testified that he facility because no hats were within change policy distributing did not uniforms, not, hat issued with as “the was to uni- caps employees part as of their se, an official uniform.” per part JA readopted when the prison forms he dress a hat 78. Nardolillo’s claim that was not in April presented code of 2005. Plaintiffs uniform part of the correctional officer is that to evidence hats continued be com- by further contradicted GEO’s own rec- monly worn within the secure areas of the tracking ords the uniforms that were is- prison just they had been under the employees. to its correctional Those sued identically identical and unenforced 2004 testimony records corroborate Moss’ that until 2005. policy October uni- part hats were distributed as forms. JA 78-80. Policy Implementation The if her con- employ- explaining

Nardolillo testified that even Moss’ letter requesting permission official to con- given part ees were hats as of their version uniform, they to wear tinue her khimar reached Nardo- were not allowed lillo’s desk on 2005. JA 157. perimeter them within the secured October hours, facility. Again, Deputy this is contradict- Moss was called into JA 83. Within speak with Holm by testimony Moss’ that various head- Warden Holm’s office to ed by Nardolillo. Nardolillo told coverings commonly employ- were worn JA 157. denying request her to facility. JA 157. It is also her he was ees within every- testimony stopping own wear her khimar and was contradicted Nardolillo’s facility hats “wearing whatever one “from employees were will replied, stopped, At this “that be too.” JA head.” JA 159. covering their with presented why Moss then asked inmates Nardolillo 159. Moss female point, regarding 2005 memorandum to The permitted October were wear khimars. later be policy uniform replied, “[d]ue Warden Title 215. The employees. to all JA right distributed religion.” have the of freedom of JA the official Moss, differed from memorandum pointing out that 159. she was adopted April that had been incarcerated, why asked she have did not hats, caps or reli- 2005, stating that “all right. JA 159. re- the same Nardolillo permitted attire will not be be gious “[bjecause you’re religion plied, not. No your uniform or non-uni- worn will be honored.” JA 159. Nardolillo con- au- specifically unless formed explain, tinued to “this is the battle he’s by the Warden.” JA thorized fight.” JA choosing to memo also that “there are clarified leaving, asked As Moss Nardolillo attire, hats, caps or which no authorized her, really you?” important “[i]s jail there are can be worn inside the answered, religion “[y]es, my JA 160. She exceptions policy.” to this JA 215. no important your religion me. Isn’t of a for religious exception The lack hats you? important really He said he didn’t specific religious with the ex- contrasted that big think it made of a JA difference.” emption general grooming stan- clearly 160. These statements indicate requirement staff is to dards “[m]ale pro- that Nardolillo was not interested excep- clean-shaven at all times.” This sort of viding any religious accommoda- wear tion was created for men who beard tion. sup- “Medical or Religious reasons” The contents of the were ported by “written documentation.” memorandum JA at roll call day. announced that The 207. topic in in change policy major became “a get offered to her from her Moss Koran facility.” Employees for blamed Moss show that car to Nardolillo and Holm her change, policy saying that she was hair, religion required her to cover her but responsible people “for [sic] that’s been they necessary. told her that would not be years for ten wearing hats not able to wear They they JA told her that would be 159. anymore.” hat JA 161. informing the women that other Muslim coverings could not wear either. head day, The next Moss work arrived at JA 159. Nardolillo or Holm told Moss wearing her underscarf and hat usual. might that she a fad or a “starting be thing, First JA 162. before Moss had statement others are fashion because now SCAN, reached the ION called she was wearing the same ... and hat.” headscarf again. into office Holm’s JA 162. At JA 159. point, “everybody out ha[d] there still on requested hats,” Moss, religious exception. except

Moss them “none of religion being disciplined then “no Nardolillo told Moss that or called into the [we]re jail” will be honored and that “he ... office or told remove their hats supervisors.” care if with a person including doesn’t it’s Jewish JA 162. was She on rosary turban his head or around if she her beads told that continued to wear neck.” headscarf, their JA 159. Moss asked would suspended When she without why Muslim women pay. stopped covering visitors to secured JA 162. Moss her permitted area were wear head at work and continued to work as a khimars, not, their but she could Nardillo officer. correctional 25, 2005, King received a directive to return On October to work with the wear- tell her that she could no ing call at home to of her Kimar JA 216-17. [sic].” khimar at longer wear her work Policy The Asserted Rationale for the speak

need to Nardolillo. JA 131. reported called Nardolillo and she She Nardolillo and Holm have provided longer that we no had “heard were allowed shifting testimony their about rationales khimars.” to wear our JA 131. Nardolillo prison’s change for the poli- dress code news, you and said “if confirmed show times, cy. testimony At indicated work, you you will if up to be fired have a that the decision all headgear to ban was your King khimar on head.” JA 131. by a motivated concern about responded that she had been “hired with appearing unkempt and out of uniform. ... just khimar on [her] [and] [his] prior Nardolillo testified that policy khimar, month with office last [her] change, uniformed security officers were there was not issue with it.” JA 131— “wearing inside, sundry hats various and care, replied 32. Nardolillo “he didn’t hats,” type with “different baseball team saying this is what he’s now.” JA 132. logos,” logos which did not have on them. JA 78. Nardolillo King thought took several weeks of medical “it didn’t look well. It was not a leave due to stress. JA 134. When she uniformed work, appearance.” wore her khimar JA 78. Holm returned she also testified lot, change until he wanted to parking she arrived dress code because he was building. unhappy then took it off as she entered the that he saw a “New York JA 134. Yankees baseball hat inside uniform, institution while full [which Sharpe-Alien was out on a medical leave not authorized” being was] as well as “hats sister, during 2005. JA 52. Her October sideways.” worn backwards and JA 183. time, who also worked at the at that called her to tell her that the she majority testimony could no focuses longer khimar wear her when she was change “prompted” was instead ' ready by security to return to work. JA Her issues. JA Nardolillo human representative resources confirmed that “[primarily,” having stated he was this, Sharpe-Alien problem and so asked to meet with the increased introduction of contraband, with the warden. JA specifically 54. She met with drugs, into the in- twice, hoping get Nardolillo permis- hypothesized his stitution.” JA 75. Holm sion to continue her khimar on the that “the band a cap inside of baseball job. Wearing JA 62. her khimar during place an excellent a to hide small amount Sharpe-Alien the meetings, “stressed the of narcotics and small amounts of contra- fact that been ... [she has] here and band.” [is] JA 183. Holm recalled that at job ... doing given never facility, [her] [and has] another he had encountered a any problem. khimar problem identifying [him] [Her] hasn’t prisoners which had interfered.” JA 61. Nardolillo “wasn’t been involved in a they riot because had willing compromise at all.” caps JA 61. He baseball on. gave JA 184. This him told her that she get “wouldn’t concerns that “the identification of an indi- building” long as as she up they showed for vidual a hat when would be work wearing her khimar. JA 62. Nardo- inside ... portion the secure of our institu- Sharpe-Alien, rely lillo then terminated tion heavily assert- where we on video sur- ing “effectively she had abandoned veillance” would be difficult and create job” by “refus[ing] comply her escape [his] with or risks. JA 184. Holm pose special expert opined that khimars also that khimars later asserted difficulty in identifying do not because create “scar[ves] risk that hats away from an because can “be ... can be taken worn hoods them, any a manner so against individual and used such as not inhibit visual choking employee, JA 201. identification of the and even if form of movement.” were, temporary removal of khi- no evidence whatsoever presented verify/confirm employee’s mar to iden- covering has ever any employee head tification easily accomplished.” could be smuggle in the contra- been used Furthermore, pointed JA he out that band, prisoner’s identity, or to conceal ability prisoner’s a khimar’s to obscure a weapon. present- JA 220. Plaintiffs as identity, allowing escape, him to does not testimony that expert ques- ed called into any piece differ from that of other of cloth- tion whether the risk Nardolil- or present prison. fabric in the JA actually from lo and Holm feared Khimars 226-27. He also concluded that GEO’s example, although existed. For Nardolillo concerns that a khimar could be used as a headcoverings testified that he banned in strangulation similarly unsup- device were response to an increased introduction in ported, clothing as item of can similar- contraband, actually had not ly strangulation. be used for JA 227-28. experienced any increase contraband in- Sharpe-Alien King Neither nor regularly through employees. troduction JA perimeter work within the secure expert Plaintiffs’ noted that “not one of have prison, frequent prison- contact with reports the 359 serious contraband [total] ers, participate or in use of force events. secreting cap, involved contraband in a Moss testified that she wore her under- hat, khimar, two involved a scarf in a manner that fit underneath a staff JA 222. member.” Of these two cap, baseball which seems to indicate that incidents, repre- staff-related contraband bandana, it could be tied like a and would senting only half a approximately percent not be tied under the neck.1 reports, of total contraband one involved bringing correctional officer ciga- According food and to the expert report, “all of jacket pocket, rettes in his jurisdictions” surveyed and the other the other he “per- involved a kitchen worker who was found mit staff to wear uniform caps and or hats cigarettes gloves facilities,” and latex jurisdic- his within their including noting states, sock. JA 224. It is worth in eight tions the District of Colum- bia, kitchen workers continue to wear hats and the Federal Bureau of Prisons. uniform, part of including during their In particular, JA 230. New York “[b]oth daily prisoners City interactions with dur- and the District of Columbia correc- headgear systems meals. JA 80. After the permit tional correctional officers policy change, “the amount of contraband and other female employees to wear the by found staff did decrease.” JA 220. khimar within the perimeter secure of majority 1. The credits GEO’s assertion that under the chin at the neck. But GEO never safety posed by wearing one hazards a possible explored per- a accommodation of against khimar is that it “could be used a mitting of a khimar as a bandana prison employee Maj. Op. in an attack.’’ worn, i.e., would be not tied under the chin at testimony 274. This is based on Holm’s that neck, any or other similar accommoda- a khimar could be used in the “form of a tion, bandana, underscarf, or of choking against movement ... used khimar, piece smaller of fabric in lieu of a testimony staff.” Id. at 272. This assumes apparently already doing. Moss only way that the to wear a khimar is to tie it sion, without adverse conse- this is also “a facilities close case.” Id. at 275. But quences.” majority JA 230. concludes nonetheless assuming present khimars “[e]ven Discussion only a small threat of the asserted dan- gers, they present do a threat which is Majority Wrong Applied The something that GEO is entitled to attempt Legal Standard prevent.” Id. at 274. The majority majority’s holding that “[e]ven The as- thereby effectively exempts GEO from Ti- suming present only khimars small tle requirement employer VII’s that an dangers, threat of the asserted do prove hardship must that its is more than present something a threat which is minimis; instead, de it concludes that this attempt prevent,” is entitled to requirement met merely is because GEO Maj. represents unexplained an Op. has hardship asserted that its is safety. jurisprudence. shift from our established effect, majority, The a per establishes se majority’s approach employ- The allows an employer rule that when an asserts that its facing safety freely er an asserted concern denying rationale for a religious accommo- religion by to discriminate on the basis of safety, dation is the employer need not merely inventing post-hoc safety ratio- adduce evidence to prove the existence nale for its refusal to accommodate its of, of, magnitude let alone the the burden employees’ religious practices. An em- it would suffer accommodating the reli- ployer liability religious cannot evade for gious practice. error, especially This is by merely asserting discrimination that it light plaintiffs’ contrary. evidence to the interest, legitimate has a business no mat- “ important, refusing ter how to accom- I agree majority with the ‘safety employee’s religious practice. modate an undoubtedly is an greatest interest of the ” Rather, is on employer the burden Webb, importance.’ 562 F.3d at 262 accommodating employee’s show that (quoting Fraternal Order Police New religious practice impose “would more Newark, Lodge City ark No. 12 v. than a employer.” de minimis cost on the (3d Cir.1999)). Certainly, F.3d 359 “Title Webb, 562 F.3d at 260. we As said require VII does not be subor Webb, may that cost be an a noneconomic dinated to the beliefs of an em cost, creating such as a safety risk. Id. ployee.” Draper v. Pipe Foundry U.S. & However, majority has failed even to Co., (6th Cir.1975). 527 F.2d The necessary perform inquiry into wheth- importance interest, employer’s making religious exception er from the however, ipso does not relieve the facto general headgear ban to khi- accommodate employer proof. of its burden of It “ would, fact, impose mars such undue established law in this Circuit ‘[t]he GEO. magnitude as well as of hardship the fact majority’s approach creates an ex- must be determined the examination of ” rule, ception burden-shifting to the normal the facts of each case.’ Protos v. Volks Am., Inc., (3d part wagen which is an established of our Title Cir.1986) analysis employer’s when (quoting Tooley VII is the v. Martin-Mar (9th majority Corp., asserted rationale. The acknowl- ietta 648 F.2d Cir. 1981)). record, that edges jury the District Court did not made On this a reasonable any finding any easily or reach conclusion about could find that has proven GEO Maj. of an hardship. magnitude existence undue neither the fact nor of its as Op. By majority’s hardship. own admis- serted Ques- Disputed facility or khimars in until ing Have Raised hats

Plaintiffs very Fact of that day tions of Material GEO’s Nardolillo became aware of Safety Interest request permission Asserted Moss’ for to wear her khimar, by the fact that after the disputed Plaintiffs also have raised a of the issuance October 2005 memoran- safety question of fact as to whether was dum, singled reprimand Moss was out for that changed even the reason its wearing khimar day, for her the next while coverings. shifting head The policy about other correctional officers continued to testimony of Nardolillo and Holm is inter wear their secular hats without incident. times, they At nally inconsistent. testified Additionally, kitchen who inter- hats, they they that when decided to ban prisoners frequent act with on a more they by safety were motivated concerns. Sharpe-Alien than King basis either occasions, they they other testified that On continue to wear hats within the secure just way not it appeared did like the Further, facility. plaintiff-em- two of the employees commonly wearing have various ployees regularly do not even work within jury hats. A could infer that non-uniform prison. the secure areas of the shifting GEO’s inconsistent and rationale change policy its is “evidence tend testimony of Nardolillo and Holm pretext.” to show Abramson v. Wil simply about motivations does not N.J., liam Paterson Coll. up match with the evidence of their ac- (3d Cir.2001). tions. Moss testified that Nardolillo told her that he did not want “starting her perfectly It would be reasonable for a statement,” fad or fashion that find, “[n]o jury despite Nardolillo and Holm’s religion will be prison, honored” testimony, safety that concerns not did religion simply important not actually motivate change them to the hat him. contemporane- JA 159-160. These policy. finding supported Such a would be directly ous statements contradict la- his by the fact that changes to the dress change ter-asserted rationales for the April code in actually 2005 did not include A policy. jury reasonable could conclude any changes policy, to the hat and that Holm, that Nardolillo and were not actual- plaintiffs introduced evidence hats ly by any safety motivated concerns about continued to commonly worn within the and, coverings head consistent with that perimeter facility secure after the mindset, did not take actions to limit adoption of the new version of the dress Rather, April of hats in April code 2005. One could assume they when became aware of request Moss’ if concern about safety of hats had a khimar in they to wear October of adoption motivated the April it, code, discriminatorily deny decided to dress the new in- dress code would decided would rather ban all hats hats, language clude revised on hats would than allow khimars to be worn. uniforms, have ceased to be issued with hats would have been for all banned em- assuming Even was the ployees, and the new would have motivating factor prohibition behind the implemented immediately. been facility, within the hats based on the finding us,

A plaintiffs the ban on khimars was record before have raised a disputed question motivated would be further of fact as to whether plaintiffs bolstered the fact that intro- accommodating of khimars duced evidence that GEO actually significant safety did not make creates a risk. conclude, any attempt stop employees It majority from wear- is error for the solely speculative on the relying ployer’s unsupported argument testimo- that an ac- ny of Nardolillo and Holm that the wear- safety commodation would create a risk risk, safety Maj. ing of khimars creates employer because the actually had not Op at in the face of all of the evi- proven the fact of the claimed risk. The contrary. dence the record to the court found that the record indicated that judgment simply GEO is not entitled to employees “not infrequently are required conclusorily because its have officials re- to work eight day,” more than hours in one imagined hypothetical cited situations so allowing practice such a would not be an pose in which khimars could potential undue hardship. Id. safety problems. safety arguments by advanced GEO In order to succeeded on a motion for suffer from logical the same flaws and summary judgment, merely GEO cannot insufficient proof safety arguments as the safety hypothetical recite concerns. It rejected in Draper. argues that all adduce evidence that accommodating must unsafe, yet hats and khimars are offers no of khimars would have caused explanation why it (presumably safely) safety risks. As the Sixth has Circuit allows kitchen workers to continue to wear observed, employer’s the notion that an headcoverings during daily interactions speculative hypo- mere assertion prisoners. The number of Muslim safety thetical can concerns serve as the women who seek a accommoda- hardship contrary basis of undue tion likely to wear khimars is smaller than proof Title burden of employ- VII’s number of kitchen staff who wear hats Draper Pipe Foundry er. v. U.S. & prisoners daily. Furthermore, around (6th Co., Cir.1975), employees Muslim women perform a vari- employer allowing asserted an em- ety jobs, serving officers, as correctional ployee Saturdays to take off for religious nurses, specialists. and intake In this compromise safety observances would be- range wide of positions, many have far less require cause it would some employees to prisoner interaction than the kitchen staff.2 shifts,

work than longer eight hour which dangerous testimony would be because Nardolillo and Holm’s they worked about sophisticated potentially around concerns becomes much dan- less gerous equipment. convincing electrical when it recog- While is considered with the nizing healthy “highly skepticism required concerns are rel- on review of employer’s evant” to the summary judgment. refusal to offer an example, For Holm accommodation, rejected the court difficulty the em- testified that he had identifying safety, GEO’s kitchen is staffed a mix of comply outside interested in it could with the regulation by providing employees its kitchen workers daily and inmates who work side- hats, with hair instead nets which would by-side App. in the kitchen. theAs secreting reduce the risk of contraband inside notes, workers, majority employ- all of these chosen, instead, them. pro- That GEO has like, ees and inmates a wear hats in order to employees vide both inmates and who work comply Pennsylvania with a Administrative side-by-side seemingly with hats would indi- hygienic requirement applying Code to food every cate that it does not view hat as a Maj. Op. (quoting workers. at 275-76 7 Pa. potential safety threat. I also find it curious 46.152(a)). Although § Code GEO maintains apparently difficulty safely that GEO has little policy against no written kitchen accommodating headgear required by the kitchen, wearing their hats outside of Nar- Pennsylvania regulation, while at the same "just practice" dolillo testified that it is claiming time undue in accommo- App. the hats are worn in the kitchen. dating headgear employees, worn Muslim argue truly required by 80. One could that if GEO were Title VII. in in items at the facili- involved a riot a ber of contraband found were prisoners

which ty actually by percent.” rose JA 220. they all were prison because California But this case is not about wearing hats. majority misapplies summary The should be issued prisoners whether all in judgment taking standard Nardolillo hats, all correctional officers or whether pose at their word that and Holm khimars It to wear hats. should allowed prison safety. a “small threat” to even of a religious practice about whether are interpreted light When the facts most of employees, few Muslim women plaintiffs, most favorable to as the law officers, as correctional whom do not work summary requires judgment, on one must reasonably accommodated. The can be genuine disputed conclude there are identity created for obscured potential risk khi- issues of material fact as to whether correctional offi- by allowing a handful of safety pose mars threat does not re- cers to wear underscarves context. risk created

motely compare with the same Furthermore, alleged whether that safe- by issuing permitting to or ty by any risk can be alleviated measure of inmates. by hats hundreds banning all by short khimars worn Mus- employees, performing any job lim women summary we must draw judgment, On function, working without an undue hard- favorably plaintiffs, all inferences be- ship disputed on GEO is additional non-moving parties. are the cause Moreover, fact. if question of even The assertion that khimars are threat to safety existence of a risk had been con- safety in facilities is a factual one GEO’s by plaintiffs, ceded GEO would not be disputed by plain- vigorously that has been summary judgment entitled to without tiffs, evidence, presented ample in- who demonstrating risk could evidence, that cluding expert pose khimars not be remedied some other measure no threat at all. The correctional facilities banning imposing short of khimars without Delaware, Massachusetts, “Connecticut, majority an undue burden on GEO. The Island, Pennsylvania, Rhode New York proceed does not even to conduct this in- State, City, New York the District of Co- quiry. lumbia, Indiana, Oklahoma, and the Feder- majority al all acknowledges Bureau of Prisons” allow staff to The that GEO headgear wear can “that argued their facilities. One has the costs that it would safely jurisdictions adopt assume that these are incur were it to the accommodation employees’ sacrificing requested by employees the Muslim of al- religion style. lowing freedom of or even of them to wear khimars would ‘cause expert respect Plaintiffs’ noted that there had nev- an undue burden with ” Maj. er involving Op. (quoting Ap- been contraband incidents resources.’ at 274 18). headgear, pellee’s majority and that amount of contra- Br. at then entirely band found staff did not decrease after admits that GEO “has not con- change April adopting the dress code nor vinced us that ac- proposed subsequent allowing did it decrease to the October commodation female Muslim removing 2005 memorandum. JA 220. He not- to wear khimars but “[comparing types checkpoint require ed that of serious them at each reported prior locking prisoners items down the contraband each such However, change in the khimar location.” policy October Id. Id. there comparable length yet opportunity with a of time has not been an for a changed, after it was reveals that the num- finder of fact to determine whether or not accommodating implausible khimars would cause more consuming.” Maj. and time In Op. concluding, so hardship. majority than a de minimis again engages improper weighing of the question Plaintiffs have raised a material evidence. See Supermar- Petruzzi’s IGA magnitude of fact as to the of the burden kets, Co., Inc., Inc. v. Darling-Delaware by accommodating that GEO would bear (3d Cir.1993) (“at Here, reasonably jury their khimars. summary judgment stage, a court is not to impose could find that it would not weigh the evidence or credibility make de- undue on GEO to allow Muslim Instead, terminations. these tasks are left women to wear khimars. fact-finder.”) (citation omitted). for the instance, why the first it is unclear Determining magnitude of GEO’s bur- require Muslim women employees fact, den is a task for the finder of not an to remove their at each khimars check- appellate court. Id. To defeat summary It point. cannot be order to check them judgment, Plaintiffs do not need to con- contraband, they perform for do not vince the Court that the accommodating jackets same checks on socks or only —the impose khimars would not an undue bur- clothing items of staff ever to have been den on They GEO. need produce found to secrete it contraband. And is a enough evidence to disputed create a ques- disputed question of fact whether would tion of fact as to the magnitude of the necessary even be pur- 'identification burden an accommodation would im- hats, poses, given that removal of when pose. so, Because Plaintiffs have done use, they were in common was never re- summary GEO is entitled to judg- quired for purposes identification at these ment.3 very same checkpoints. The khimars by plaintiffs worn do not include veils over Webb Does Not Control This Case explain their faces. GEO does not why Court, The District in granting sum women in adequately khimars cannot be mary GEO, judgment held that Webb identified via closed circuit video cameras dispositive, concluding that there was simply by camera, looking at the thereby meaningful “no distinction between prison ensuring the camera has an unob- guards and similar personnel, on the one faces, structed view of their before hand, police officers.” EEOC v. GEO pass. are allowed to Inc., (E.D.Pa. Group, 2009 WL 1382914 majority persuaded by plain- 2008). is not issue, The majority elides this see suggested tiffs evidence that their (“It accom- Maj. Op. at 274 unnecessary for us modation would not hardship. cause undue to decide whether this interest alone would It concludes that khimar-switching “[t]he support summary judgment, as we decide proposals, switching either khimars or re- grounds.”), case different but I moving checkpoints, them at are facially must address it disagree because I 78, 84-85, majority unabashedly Safley, It is clear that the has 482 U.S. 107 S.Ct. adopted (1987) ("federal GEO's view of the evidence as the L.Ed.2d 64 courts [should] See, e.g., Maj. "facts” control this case. appropriate prison accord deference to the ("The authorities”)). Op. appears place at 276 Dissent But Turner does not even in- form, control, testimony more reliance on the EEOC’s much less the issues in this expert testimony witness than on the of the case. It involved a facial constitutional chal- experienced prison lenge prison regulation. officials on the site at is- to a Turner involved sue.”). guise comply- reviewing It does so under the neither the standard of evidence on given by grant with the “direction we have summary judgment been nor the obli- Supreme (quoting gations private Court.” Id. Turner employer v. of a under Title VII. Police, cussing favor Fraternal Order can be decided GEO’s

this case 366). F.3d grounds.” “on different officers, employees, police unlike Prison met its burden of has not Because GEO symbol an impartial do not serve as magnitude fact or the proving the authority general law enforcement safety interest that it would to its burden evidence, public. There is no for exam- accommoda- by allowing religious bear ple, prisoner that a would think a GEO khimars, turn I now to whether tion for employee wearing a khimar not a was in uniform interest the GEO’s asserted genuine employee. There is also no GEO justifies the of it’s appearance any prisoner that ever ex- evidence has held in on khimars under Webb. We ban pressed they being a concern that are Po- requiring Philadelphia that Webb against discriminated because of the reli- to allow Muslim women Department lice gious employee, affiliation of GEO while on police officers to wear khimars employee’s wearing indicated of a upon an duty would work undue khimar. no that being There is evidence compromise police it because it would prison guard requires the same level of in department’s promoting interest the es- esprit corps par- cohesiveness and de of a “impartiality, values of sential amilitary organization police.4 such as the neutrality, uniformity, and the subordina- in There was also no indication Webb Webb, preference.” personal tion of Philadelphia Department Police (2009). F.3d sought prohibit also non-uniformed em- argues that it is entitled to sum- GEO ployees regularly who did not interact with mary judgment as a matter of law because khimars, public from as GEO it an has asserted interest uniform dress does. Prison nurses and intake officers “a among ‘paramilitary law enforcement certainly do not share the same ” police. officers, unit’ police similar Id. 262 morale concerns as sworn Whalen, they expected v. because are not trained or (quoting Thomas (6th Cir.1995)). However, participate of force use events. Addi- the inter- tionally, given that King neither nor uniformity est in and Holm Nardolillo are Sharpe-Alien classified as uniformed actually testified to was not akin to the best, employees, disingenuous, is recognized interest Nardolillo Webb. argue that it would work an GEO undue and Holm were concerned that their em- hardship to allow them to wear non-uni- ployees sloppy wearing looked whatever fact, they form attire. are not uni- they wanted on their heads. The Philadel- guard-employees formed with ac- routine police department concerned phia prison’s cess to the secure areas. (so about “the of officers public identify will be able to officers as The record before us indicates that genuine, appear- based on their uniform in uniformity only GEO’s interest encom- ance), esprit corps, morale and de and passed disapproval employ- an aesthetic (dis- public police.” starting confidence Id. ees a “fad or fashion statement” dispositive, prison 4. On the factors Webb found which runs the under contract. One argue supports record was uncontroverted and could that one reason consisted which largely contracting the Police Commis- out of administration affidavit of Webb, Here, that, private corporation sioner. See 562 F.3d at 261. to a unlike a met- highly department, ropolitan police record is need controverted and official, expert by plaintiffs. governmental, para- declaration was submitted not be run Moreover, private corporation military organization. GEO is a by wearing majority. Maj. khimars. JA 159. That con- Op. at 271. The Koran equivalent cern is not to those we found to teaches that “guard women must “ ” greatest importance’ modesty” by be ‘of the Webb. wearing 'a khimar to cover Police, (quoting hair, heads, neck, Id. Fraternal Order 170 their and breast. JA 365). F.3d at does not control this Webb 28-29. Plaintiffs maintain covering case. is free to ban its employees their hair natural-looking synthetic caps from Yankees backwards hair would not achieve that goal and elimi- sideways they just if way do not like the nate the religious conflict at issue.5 GEO they look. But are not questioned free to ban has not sincerity of this Therefore, khimars for the same reason. religious belief. under our reli- gious precedents, accommodation this as- The Alternative Accommodation Of- sertion enough is to resolve question fered GEO Is Unreasonable whether the offer of an hairpiece alternate as a Matter of Law accommodation was reasonable. Having concluded that issues of material employer An is not interpret entitled to fact remain with respect argu to GEO’s employee’s religion and determine ments that accommodating khimars would what is and is not religiously acceptable to upon work an undue burden their interests them. example, For in EEOC v. Ilona of I uniformity, next consider Inc., (7th Hungary, good-faith whether GEO “made a effort to Cir.1997), two Jewish employees requested reasonably accommodate the religious be Yom Kippur off from work so that of plaintiffs. liefs” Id. at 259. GEO ar could religious observe the holiday. The that it gues did offer a reasonable alterna employer employees offered the another accommodation, tive allowing them to wear day off instead to observe holiday. hairpiece, presumably a wig, instead of a The Court held that this was not a reason- khimar. An accommodation is reasonable able accommodation. Just as it is not if it “eliminates the conflict between em reasonable to ask a employee Christian ployment requirements religious prac July, observe Christmas is not reason- by allowing tices the individual to observe able to ask a Muslim woman who must fully.” Philbrook, Ansonia Bd. Educ. v. hide her hair to appear public displaying 60, 70, 479 U.S. 107 S.Ct. 93 L.Ed.2d a full head of hair. GEO’s assertion that it (1986). that contends person has found one agree who would wig would religious eliminate the conflict such a prove scheme does not that it is a having hair uncovered for its Muslim reasonable accommodation. It is neither women because their natural the court’s employer’s nor the prerogative hair would be by synthetic covered hair. employee dictate to an how she should It further asserts that the fact that one comply with the requirements of her reli- woman employee allegedly Muslim agreed gion. majority observes, As the “[w]e are to wear such hairpiece instead of a khi unwilling to delve into matters of the- mar is evidence that the offered accommo ology.” Maj. Op. at 271. dation would resolve class members’ reli

gious conflicts. Conclusion

The offered Today accommodation is not rea- majority ignores the facts in rightly rejected sonable and was by the the record and the well-established stan- Further, rationale, 5. easily under the wig one hidden under a than under a khi- argue could that contraband could be more mar. No. 08-9000. summary judg- reviewing them on dard un- so, doing it establishes ment. Appeals, States Court of United that makes exception unworkable wise Third Circuit. ac- of our Title VII a shambles The record jurisprudence. commodation Argued Oct. It full case is of contradictions. in this Filed: Aug. whether, point, at what to tell impossible uni- prison’s dress code and how officially changed, ever

form were changed his simply the warden

whether and khimars allowing

mind about hats prison and for what reason. are tri-

Having demonstrated that there case, fact this

able issues material day in court so

plaintiffs deserve their conflicting jury parties can consider the are. and determine what the facts

accounts I would the district

Because reverse summary judgment grant

court’s

GEO, respectfully I dissent. SARANCHAK, Appellee

Daniel M.

v.

Jeffrey BEARD, Commissioner, Penn- Corrections;

sylvania Department of Diguglielmo, Superintendent

David Correctional Institution State

Graterford; Tennis, Superin- Frank In-

tendent of the State Correctional Rockview; Attorney

stitution Gen- Schuylkill Pennsylvania;

eral

County Attorney, Appellants. District

Case Details

Case Name: Equal Employment Opportunity Commission v. Geo Group, Inc.

Court Name: Court of Appeals for the Third Circuit

Date Published: Aug 2, 2010

Citation: 616 F.3d 265

Docket Number: 09-3093

Court Abbreviation: 3rd Cir.