Reply Brief — Rasch v. National Railroad Passenger Corporation, Dba Amtrak

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No. 93-319 Cee

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IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1993

STEPHEN P. RASCH,

Petitioner,

VS.

NATIONAL RAILROAD PASSENGER CORPORATION,

D/B/A AMTRAK,

Respondent.

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

REPLY BRIEF OF PETITIONER

LEE BOOTHBY

Counsel of Record

BooTHBY & YINGST

Suite 201, 4545 42nd St., NW

Washington, DC 20016

(202) 363-1773

Counsel for Petitioner

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

BEST AVAILABLE C OPY

TABLE OF AUTHORITIES

Page

Cases:

Boomsma v. Greyhound Food Management, Inc..,

639 F. Supp. 1448 (W.D. Mich. 1986) ...... 6

Cooper v. General Dynamics,

533 F.2d 163 (Sth Cir. 1976),

cert. denied sub nom

International Ass’n of Machinists and

Aerospace Workers v. Hopkins,

TF Ri Pe CRIED we a wees eo wel 3

EEOC v. Arlington Transit Mix, Inc..,

957 F.2d 219 (6th Cir. 1991) ............ 6

EEOC v. Hacienda Hotel,

881 F.2d 1504 (9th Cir. 1989) ........... 7,8

Glus v. G.C. Murphy Co.,

329 F. Supp. 563 (W.D. Pa. 1971) ......... 5

McDaniel v. Essex Int’l, Inc.,

37) F206 338 (hs Cir. 1978) 2... 2. Se. 3

Macklin v. Spector Freight Sys., Inc.,

oa © ae ore ee OM. 1978) ww wk ek 5

Nottelson v. Smith Steel Wkrs. D.A.L.U. 19806,

643 F.2d 445 (7th Cir. 1981),

cert. denied, 454 U.S. 1046 (1981) ......... 3

Page

Robinson v. Lorillard Corp.,

444 F.2d 791 (4th Cir. 1971) ........ ru.

Shaffield v. Northrop Worldwide Aircraft Serv., Inc..,

373 F. Supp. 937 (M.D. Ala. 1974) ........ 6

Tooley v. Martin-Marietta Corp. ,

648 F.2d 1239 (9th Cir. 1981),

cert. denied, 454 U.S. 1098 (1981) ..... i ae

_Toledo v. Nobel-Sysco., Inc.,

892 F.2d 1481 (10th Cir. 1989) ....... ene

Trans World Airlines v. Hardison,

S52 U.S. GB (TFT ne ei he wee ee Fy

Statutes and Rules:

42 U.S.C. § 2000e ef seq.

(Title VII of the Civil Rights Act of

1966, G6 QUNCMGOE) 2 we ss passim

U.24.. 9 Fee 6 he eens eee a oe

ote Em er cre ere _« oe

EEOC Guidelines on Discrimination Because of Relgion,

29 C.F.R. § 1605.2(d)(1)(iii)

45 Fed. Reg. 12010 (90D) 6 hk oc cles eae

Other Authorities:

Note, Heaven Can Wait: Judicial Interpretation of

Title VII's Religious Accommodation

Requirement Since Trans World

Airlines v. Hardison,

53 Fordham L. Rev. 839 (1985)........... 2

ill

NO. 93-319

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1993

STEPHEN P. RASCH,

Petitioner,

VS.

NATIONAL RAILROAD PASSENGER CORPORATION,

D/B/A AMTRAK,

Respondent.

Petition For A Writ Of Certiorari

To The United States Court Of Appeais For The

District Of Columbia Circuit

REPLY BRIEF OF PETITIONER

Amtrak’s arguments and case citations, taken together

with the Petition for Writ of Certiorari, reveal the correctness

of one commentator’s statement in discussing Trans World

Airlines v. Hardison, 432 U.S. 63 (1977):

The Supreme Court interpreted the

accommodation requirement in 1977 in Trans

World Airlines v. Hardison, but in the

subsequent decisions no uniformity has yet

emerged. An examination of the cases since

1977 suggests that courts typically use one of

three different models of interest balancing to

analyze the varied factual contexts in which

religious accommodation issues are presented.

Note, Heaven Can Wait: Judicial Interpretation of Title VII's

Religious Accommodation Kequirement Since Trans World

Airlines v. Hardison, 53 Fordham L. Rev. 839, 840 (1985).

The same writer further observed that "far from resolving the

lower courts’ confusion as to the meaning of section

2000e(j)’s accommodation requirement, the Supreme Court’s

language in Hardison has been the foundation for highly

divergent applications of the statute." Jd. at 847-48.

Amtrak’s opposition only serves to further highlight the

importance of this case in Title VII religious accommodation

jurisprudence and illustrates. why this Court should grant

certiorari. Amtrak, like some courts, has found all provisions

of a labor contract -- not just a seniority provision --

impervious to religious accommodation matters; has concluded

that Hardison proscribes both mandatory and voluntary job

swaps contrary to the EEOC Guidelines; and concludes that an

employer need not even explore transferring an employee to

a different job for accommodation purposes. Amtrak and the

lower courts in this case have such a shallow view of the

‘religious accommodation provisions of Title VII that virtually

no accommodation duty would be imposed on an employer

under such an interpretation. The difference between the

various courts’ approaches and analyses is the only logical

explanation for the differences in the results in many religious

accommodation cases.

l. Amtrak erroneously asserts that Hardison

emphasizes that an employer cannot be forced under Title VII

to violate a collective bargaining agreement in the name of

religious accommodation (Resp. Brf. at 7). It is this claimed

invincibility of the whole collective bargaining agreement that

forms the basis of Amtrak’s assertion that it need not even

consider using voluntary substitutes as a means of

accommodation, even though Rasch had found a volunteer

who offered to work his Sabbath for him (A 213, 221-22).

Many circuits have ruled that it is only the seniority

provision of a collective bargaining agreement that is removed

from a Title VII religious accommodation claim. In Nottelson

v. Smith Steel Wkrs. D.A.L.U. 19806, 643 F.2d 445, 452 (7th

Cir. 1981), cert. denied, 454 U.S. 1046 (1981), the court

stated "that Title VII rights cannot be bargained away and that

a collective bargaining agreement therefore does not of itself

provide a defense for Title VII violations." In McDaniel vy.

Essex Int'l, Inc., 696 F.2d 34, 37 (6th Cir. 1982), the court

held that Title VII required a union to waive a union security

clause in order to accommodate an employee who held

religious views against the payment of union dues. Every

circuit that has ruled on this issue has held that a collective

bargaining agreement must give way to such a Title VII

accommodation. See also Cooper v. General Dynamics, 533

F.2d 163 (Sth Cir. 1976), cert. denied sub nom International

Ass'n of Machinists and Aerospace Workers vy. Honkins, 433

U.S. 908 (1977); Tooley v. Martin-Marietta Corp., 648 F.2d

1239 (9th Cir. 1981), cert. denied, 454 U.S. 1098 (1981).

This Court in Hardison did observe that section 703(h)

(42 U.S.C. § 2000e-2(h)) affords special treatment for

seniority systems. 432 U.S. at 81-82. The Court stated that

‘absent a discriminatory purpose, the operation of a seniority

system cannot be an unlawful employment practice even if the

system has some discriminatory consequences." /d. at 82. Of

course, this is not tantamount to saying that Title VII exempts

employers from their statutory obligation to accommodate an

employee’s religious practices where there is a bona fide

seniority system in place since there may well be -- as there

was in the instant case -- other means to accommodate without

violating seniority.

Amtrak interchangeably refers to seniority and a

collective bargaining contract without distinguishing between

the two. This is obviously because Amtrak had to base its

defense on general contract language rather than a seniority

proviso. Seniority simply is not involved in determining the

order of assignment for employees on Amtrak’s Extra Board.

Amtrak argues that the UTU Agreement specifies the order in

which employees are to be called on_the Extra Board, and

provides for penalty payments to employees who are called

out of their seniority order (Resp. Brf. at 12). The relevant

provision of the collective bargaining agreement concerning

Extra Board assignments, however, states:

Extra employees will be called first in,

first Out, as registered on the extra board.

Rule 12(a) of Amtrak’s contract with UTU (A 67).

Thus, Amtrak is dead wrong in suggesting that

employees working on the Extra Board are to be called in the

order of their seniority. Seniority, and the protection afforded

seniority by section 703(h), is totally irrelevant to the question

of whether a voluntary substitution is a viable accommodation.

Permitting A. L. Boyd to work in Rasch’s place would not

have violated any seniority provision of the collective

bargaining agreement. More importantly, permitting Boyd to

work in Rasch’s place in no way resulted in denying other

Se |

employees’ their shift and job preferences. !

The provision in the contract as to payment states:

Extra employees who are not called in

their turn will be paid the greater of either what

they actually earned or the earnings of the

assignment(s) they should have been called for,

and will retain their place on the extra board.

Rule 12(1) of UTU Contract (A 68).

Even if Boyd worked in Rasch’s place, the Extra Board

employees would still be "called in their turn." Thus, the

substitution accommodation would not have resulted in any

extra cost to Amtrak.

Further, both Amtrak and the union had an affirmative

responsibility under Title VII to render whatever assistance

they might be called upon to give in attempting to work out an

accommodation. Robinson v. Lorillard Corp., 444 F.2d 791,

799 (4th Cir. 1971); Macklin v. Spector Freight Sys., Inc.,

478 F.2d 979, 989 (D.C. Cir. 1973): Glus v. G.C Murphy

Co., 329 F. Supp. 563, 567 (W.D. Pa. 1971),

An employer such as Amtrak had the affirmative

responsibility to explore union cooperation in solving the

'The evidence demonstrates that there was no rigid application of the

Extra Board assignments. James Maguire, one of Rasch’s supervisors,

testified that it is common practice for people on the Extra Board to call

up and say "mark me off,” and the crew dispatcher will let them off

without any further explanation (A 347). Supervisory personnel at Amtrak

were, however, instructed to treat Rasch’s religious requests differently and

specifically instructed the crew callers not to permit Rasch to be excused

from work during his Sabbath (A 446-47, 453-55).

5

accommodation requirements which affected both the

employer and the union. Boomsma v. Greyhound Food

Memt., 639 F. Supp. 1448, 1455 (W.D. Mich. 1986). In

EEOC v. Arlington Transit Mix, Inc., 957 F.2d 219, 222 (6th

Cir. 1991), the court of appeals rejected the district court’s

determination that the existence of a seniority system

exempted the employer from its accommodation duty. Noting

that one of the mechanics testified that he would have

exchanged shifts with the employee needing the religious

accommodation, the court held that "[a]t a minimum,

Arlington had an obligation to explore a voluntary waiver of

seniority rights before terminating Taylor." EEOC v.

Arlington Transit Mix, Inc., 957 F.2d at 222.

The courts below in the instant case, unlike the Sixth

Circuit, ended their inquiry upon concluding that the collective

bargaining agreement provided for the order of assignment on

the Extra Board. But as the court stated in Shaffield v.

Northrop Worldwide Aircraft Serv., Inc., 373 F. Supp. 937,

942 (M.D. Ala. 1974), even if a seniority provision of a

collective bargaining agreement would prevent voluntary

trading, "it may well be that the company’s burden includes

seeking union consent to some form of variance." There was

no showing in this case that the union would have objected to

a voluntary trade between Rasch and Boyd nor do the courts

below -- or for that matter Amtrak -- explain why such a trade

would have violated the seniority rights of other employees.

If, for example, a volunteer such as Boyd was willing

to substitute for Rasch on the Extra Board with the

understanding that he would be the last to be called in the

event that another employee on the Extra Board desired to be

called first, it is difficult to see how any Extra Board

employee would have been adversely affected or would even

object to such an arrangement.

BET

2. Amtrak attempts to demonstrate that the Ninth

Circuit’s holding in EEOC v. Hacienda Hotel, 881 F.2d 1504

(9th Cir. 1989), is not in conflict with the lower courts in this

case, Claiming that in Hacienda the labor contract did not

require that work assignment be governed by seniority and

that Hacienda had accommodated co-workers’ requests for

weekends off for nonreligious reasons citing a footnote in the

court’s opinion (Resp. Brf. at 12-13). But the factual

amplification in the court’s footnote clearly was not the central

holding in Hacienda. And that court’s analysis is at odds with

the instant case, demonstrating the fundamental difference in

the Ninth Circuit’s interpretation of Hardison and its religious

accommodation analysis from that of the courts below.

The court in Hacienda, after observing that a

supervisor "admitted that she never asked any maid if they

would volunteer to work," Hacienda, 881 F.2d at 1513,

further noted that "[t]he record also reflects that there was a

least one voluntary substitute . . . who was willing to work

for her." Jd. The court discussed the employer’s reliance on

Hardison, which argued that "like TWA, it was bound by its

union contract to schedule employees on the basis of seniority

and cannot, therefore, be held liable." Jd.

The Ninth Circuit, unlike the courts below, concluded

that the existence of a seniority system did not exempt the

employer from its statutory duties to accommodate an

employee’s religious practices. As that court stated, "at a

minimum, the employer was required to negotiate with the

employee in an effort reasonably to accommodate the

employee’s religious beliefs." Jd. The court observed that in

Hardison, even with a bona fide seniority system in place,

TWA "made several attempts to accommodate the religious

practices of the plaintiff, including: . . . an authorized union

search for someone who would exchange shifts, .. .and.. .

an effort to find another job in the company for the

employee." Jd.

In Hacienda, the court stated that "[o]nce the employee

has established a prima facie case, the burden shifts to the

employer to prove that it made good faith efforts to

accommodate the employee’s religious beliefs." Jd. at 1512.

According to the court, "[i]f the employer does not propose an

accommodation, the employer must accept the employee’s

proposal or demonstrate that the proposal would cause the

employer undue hardship." Jd. In this case, Amtrak did not

negotiate with Rasch, it made no accommodation proposal,

and although Rasch proposed the use of a substitute, Amtrak

did not show Rasch how the use of a substitute would result

in undue hardship to Amtrak’s business.”

3. As noted in the Petition for Writ of Certiorari,

when Rasch was discharged on November 16, 1988, there was

an assistant conductor’s position at Salisbury, North Carolina,

which would have accommodated his Sabbath requirements.

(See Petition at 18-20.) Although arguably the union may not

have been willing to agree to a long-term job swap

arrangement, it may well have been agreeable to a temporary

arrangement until Rasch completed a transfer to the Salisbury

position.

Amtrak does not claim that it engaged in an active and

*amtrak claims Rasch made little effort to accommodate his own

religious needs (Resp. Brf. at 3). This point is disputed. In fact, each

time Rasch attempted to accommodate his needs, it was rejected by Amtrak

(A 205-07, 213, 224). Although Rasch attempted to work out an

accommodation for his religious needs, an employee has no duty to engage

in bilateral cooperation until after the employer undertakes initial steps

toward accommodation. Toledo v. Nobel-Sysco., Inc., 892 F.2d 1481,

1489 (10th Cir. 1989). But Amtrak never took such steps.

8

Amtrak does not claim that it engaged in an active and

bona fide effort to accommodate Rasch’s religious needs or

that Amtrak’s conductors cannot be accommodated. It fails to

even discuss the fact that there is credible evidence that at

least One position that would have accommodated Rasch (the

Salisbury, North Carolina, position) was available

approximately one month before Rasch was fired. In fact,

Amtrak does not deny that Rasch could have been transferred

to the Salisbury position on October 9, 1988, when he

returned to work from a three-week vacation.

Amtrak also does not deny that there were conceivably

other positions available that would have accommodated Rasch

if Amtrak had only investigated. And of course it does not

and cannot deny that on summary judgment there was not a

material issue of fact which should have foreclosed the entry

of summary judgment on behalf of Amtrak. Amtrak’s weak

response is that "[g]iven the singular nature of the Amtrak

Extra Board, which requires 24-hour a day, 7-day a week

availability, there is simply no reason why Supreme Court

review is warranted." (Resp. Brf. at 14).°

> Amtrak erroneously states that a number of facts cited by petitioner,

including Rasch’s claim that Amtrak supervision told him to continue on

the Extra Board, were never presented to the district court (Resp. Brf. at

6 n.4). This is simply false. (See A 685-88.) Amtrak also contends that

"Petitioner began calling in sick frequently.” (Resp. Brf. at 2). This was

refuted at the trial court. According to supervisor Maguire, Rasch had not

misinformed Amtrak and "was pretty straightforward.” (A 344). It was the

crew callers who "automatically put somebody down sick.” There simply

was no code the crew callers could use for marking off for religious

reasons (A 344-45).

Amtrak contends that during Rasch’s first 19 months he was

absent about 123 days. This was calculated on the basis of a seven-day

workweek and represents Rasch’s refusal to work Friday night and

Saturday before sunset. In fact, there were days Rasch actually worked

9

But Amtrak avoids the heart of Rasch’s claim. A job

transfer would avoid the claimed "singular nature" of the

Extra Board. Rasch contends that if the Extra Board

presented an accommodation problem for Amtrak, it was

Amtrak’s duty to explore availability of other positions such

as the Salisbury position. Rather than allowing Rasch to

amass absences on Friday nights and Saturdays, Amtrak

should have sought to transfer him to another job assignment

as the EEOC Guidelines on Religious Discrimination suggests,

29 C.F.R. § 1605.2(d)(1)(iil) (Pet. App. at 24a).

CONCLUSION

For the above-stated reasons, and for the reasons stated

in the Petition for Writ of Certiorari, this Court should grant

the Petition.

Dated: November 4, 1993 Respectfully submitted,

LEE BOOTHBY

Counsel of Record

Boothby & Yingst

Suite 201, 4545 42nd St., NW

Washington, DC 20016

(202) 363-1773

Counsel for Petitioner

but was charged as absent (A 396). Even so, from January | to November

16, 1988, Rasch spent 2280 hours on Amtrak trips which averages over 40

hours per week (A 200, 400, 449-50). Other employees who missed work

were not even disciplined (A 399-400), but Rasch was penalized by being

denied the 40-hour guarantee (A 438-39) and was subsequently fired.

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