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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 1003

## Text

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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.

10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0717%3A4. Public record. Not legal advice.