In a pair of EEOC religious discrimination cases brought in Nebraska and Colorado against meat packing company JBS USA, LLC (which we have blogged about here, here, here, here, here, and here), the lawsuits alleged that JBS discriminated against its Muslim employees on the basis of religion by engaging in a pattern or practice of retaliation, discriminatory discipline and discharge, harassment, and denying its Muslim employees reasonable religious accommodations. While JBS successfully obtained summary judgment in the Nebraska case (with the EEOC still being able to pursue individual claims, as we discussed here), in the ongoing Colorado litigation, EEOC v. JBS USA, LLC, Case No. 10-CV-02103 (D. Colo.), Judge Philip A. Brimmer of the U.S. District Court for the District of Colorado recently ordered that only 30 of the 103 witnesses that were untimely disclosed by the employer may be used in “Phase I” of the pending litigation.

While this Colorado case is still “a work in progress” in terms of the litigation process, this “slice” of an order is important for employers in that it illustrates how identification of witnesses during discovery can later lead to rulings “served cold” from the chopping block of unsympathetic courts.

Case Background

In 2010, the EEOC filed two similar lawsuits alleging that JBS, which does business as JBS Swift & Company, discriminated against a class of Somali Muslim employees at its facilities in Greeley, Colorado and Grand Island, Nebraska. During Ramadan 2008, the employees requested that JBS accommodate their need to leave the production line to pray at or near sundown. The employees and JBS were unable to come to an agreement regarding the employees’ need to pray, leading to the suspension and termination of a large number of Muslim employees based on job abandonment. In the Nebraska case, Chief Judge Laurie Smith Camp of the U.S. District Court for the District of Nebraska entered judgment for JBS, finding that the employer established the affirmative defense of undue hardship since “a religious accommodation for Muslim employees…within the parameters requested [by the EEOC] would have caused more than a de minimis burden on JBS and on its non-Muslim employees.” However, that Court later ruled that its earlier findings did not necessarily preclude the EEOC from pursuing individual claims for religious discrimination or retaliation.

In the Colorado action, the Court bifurcated the case, resulting in the following “Phase I” issues: (1) the EEOC’s claim that JBS engaged in a pattern or practice of denying Muslim employees reasonable religious accommodations; (2) the EEOC’s retaliation pattern or practice claim; and (3) the EEOC’s discriminatory discipline and discharge pattern or practice claim. At the close of “Phase I” discovery, JBS sought summary judgment on all three of EEOC’s Phase I claims. On July 17, 2015, Judge Brimmer denied JBS’ motion for summary judgment, which was based in part on JBS’ argument that its favorable decision in the Nebraska case collaterally estopped the EEOC from advancing its claims.

Relevant here, on October 27, 2011, the magistrate judge entered a scheduling order providing that under Section § 8(d)(2), “[Plaintiffs] will identify aggrieved employees for Phase I only by November 15, 2011. [Defendant] will identify Phase I witnesses by December 15, 2011. Either party may amend list up to 60 days thereafter. Subsequent amendments may be made only on a showing of good cause, which shall not include lack of diligence.” Id. at 2.

In February and March of 2013, JBS attempted to disclose 103 additional witnesses through three supplemental disclosures. The EEOC moved to strike JBS’ additional witnesses, arguing their disclosure violated § 8(d)(2). On March 25, 2014, the magistrate judge issued an order granting the EEOC’s motion to strike, to which JBS subsequently objected. On May 7, 2014, JBS filed a motion to amend the Scheduling Order, arguing that good cause existed to allow JBS to disclose the 103 witnesses stricken by the magistrate judge’s March 25, 2014 order. On March 17, 2015, the magistrate judge granted JBS’ motion, concluding that JBS established good cause to amend its Phase I witness list under § 8(d)(2). On April 7, 2015, the EEOC filed an objection to the March 17, 2015 order. Id. at 3.

Addressing both parties’ various objections and motions to amend the scheduling order, on March 16, 2016, Judge Brimmer entered an order that ultimately directed JBS to select and disclose to the EEOC a list of 30 of the 103 additional witnesses it seeks to add to its Phase I witness list, and that such witnesses shall be deemed timely designated on the dates they were originally disclosed to EEOC. Id. at 25. In addition, the Court ordered that any motion by the EEOC to reopen discovery is to be filed within two weeks of JBS’ disclosure, and should indicate for how long discovery will be reopened for the limited purpose of deposing JBS’ additional witnesses. Id.

The Court’s Decision

The Court initially addressed JBS’ objections to the magistrate judge’s order granting the EEOC’s motion to strike the untimely-disclosed 103 witnesses. First, JBS argued that the magistrate judge misapprehended its position by failing to consider its argument that Rule 26 permitted the additional witness disclosures. Overruling this objection, the Court noted that under Rule 16, a scheduling order could properly modify the timing of Rule 26 disclosures. Id. at 5. JBS also argued that the magistrate judge’s interpretation of § 8(d)(2) was prejudicial to its case, but the Court also rejected this argument given JBS’ current position that it could now show good cause to add witnesses. Id. at 7-8. Finally, the Court rejected JBS’ argument that the magistrate judge failed to apply Burks v. Okla. Publ’g Co., 81 F.3d 975 (10th Cir. 1996), which JBS claimed was controlling Tenth Circuit precedent, since JBS never raised the argument before the magistrate judge and therefore it was deemed waived. Id. at 9.

Next, the Court addressed the EEOC’s challenges to several aspects of the magistrate judge’s March 17, 2015 ruling that JBS showed good cause to allow it to amend its Phase I witness list under § 8(d)(2) of the Scheduling Order. Id. at 10. The parties disputed whether good cause was shown. The EEOC argued that when examining JBS’ justifications for the untimely disclosure of each individual witness, as opposed to examining JBS’ justifications in the aggregate, JBS’ showing was insufficient to establish good cause. While the Court acknowledged that JBS compiled a significant amount of information to establish good cause, including the dates and citations to relevant deposition testimonies and the identification of prior inconsistent statements, it held that JBS’ attempt to show good cause did not withstand scrutiny. Id. at 13.

The Court further rejected JBS’ arguments concerning the difficulty of witness identification, which it alleged was caused by language barriers and employees only knowing other employees’ first names, holding that JBS did nothing to address these challenges which should have been apparent at the outset of the case. Id. at 13-14. Further, noting that JBS was required to conduct its own investigation of potential witnesses, the Court was unpersuaded by JBS’ argument that it did not uncover certain witness identities until the deposition stage. Id. at 15. In addition, in response to JBS’ argument that it had difficulty identifying certain witnesses due to either their discontinued employment or having common first names (i.e., employing over 40 people with the name “Jorge”), the Court again noted that JBS was not diligent in addressing these issues earlier. Id. at 16.

In sum, the Court found that “[w]ith the exception of [a few] witnesses JBS designated as impeachment witnesses, JBS has largely failed to show that it acted diligently to disclose the additional witnesses. JBS may be correct that it could not have disclosed all of the additional witnesses by the February 2012 deadline, but it is equally clear that JBS could have, in an exercise of diligence, disclosed at least some of the additional 103 witnesses prior to February and March 2012.” Id. at 19. Further, the Court opined that “[r]eopening discovery to allow [the] EEOC to depose the additional witnesses would further delay trial in a case where pretrial proceedings have already stretched for more than five years.” Id. at 22. However, the Court concluded that denying JBS’ motion to amend the scheduling order would be too harsh of a sanction. Accordingly, in what it deemed “the most equitable remedy,” the Court found “that good cause exists to amend the scheduling order to grant JBS leave to designate 30 additional witnesses of its choosing…from the 103 witnesses listed in the additional witness disclosures.” Id. at 25.

Implications For Employers

This ruling is instructive regarding the upside of proactively identifying any potential Rule 26 witnesses as early as possible. Waiting until the end of discovery to disclose witnesses creates the possibility that a court may preclude some of those individuals’ testimonies, as was the case here. Finally, this case is yet another example of the EEOC’s recent aggressiveness in litigating religious accommodation claims on a large-scale basis. Accordingly, employers should take seriously any and all employee requests for religious accommodations in order to avoid being found on the chopping block of an EEOC lawsuit.