Opposition Brief — California v. Opuku-Boateng
Supreme Court brief1997
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5 Supre: urt 1S
fF i a
Av
No. 96-1275
rewsangeeme gp merreren wee ee
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1996
THE STATE OF CALIFORNIA,
Petitioner,
KWASI OPUKU-BOATENG,
Respondent.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Ninth of Circuit
BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI
LEE BOOTHBY
Counsel of Record
BOOTHBY & YINGST
4545 42™ Street, NW
Suite 200
Washington, D.C. 20016
(202) 363-1773
Counsel for Respondent
PRESS OF BYRON S. ADAMS # WASHINGTON, D.C. + 1-800-347-8208
QUESTIONS PRESENTED
1. Whether, under the religious accommodation
provisions of Title VII, 42 U.S.C. § 2000e(j), a state
employer must, at a minimum, provide a prospective
employee with equal opportunity to utilize scheduling, shift
trade, and transfer opportunities for religious accommodation
as are generally available to its employees.
2. Whether an employer claiming undue hardship is
required to prove accommodation is not possible by
demonstrating both the magnitude and the fact of the hardship.
3. | Whether the petitioner can now for the first time raise
the Establishment Clause and Tenth Amendment issues when
it failed to raise or preserve either before the district court or
the court of appeals.
4. Whether, if it is permissible for the petitioner to raise
the constitutional issues before this Court, the Ninth Circuit’s
decision affording respondent the same equal opportunity to
utilize scheduling, shift trade, and transfer opportunities for
religious accommodation as are generally available to other
employees violates either the Establishment Clause or the
Tenth Amendment.
PARTIES TO THE PROCEEDINGS
Petitioner, who was a defendant below, is the State of
California. Other individual State officials who were
originally named as defendants were dismissed as parties in
the district court.
Respondent, who was the plaintiff below, is Kwasi Opuku-
Boateng, an individual.
TABLE OF CONTENTS
Page
GUIRETIONS PRESENTED ...................
PARTIES TO THE PROCEEDINGS ............ ii
Meee MOST «Cg Cw Sc ee ee ck ee V
STATEMENT OF THECASE................ 1
RN ie ea ec: 1
STATEMENT es gs ee ee, 2
DISPUTED STATEMENT OF FACTS ......... 4
REASONS THE WRIT SHOULD BE DENIED ..... 12
ee 12
I. THE COURT OF APPEALS PROPERLY
APPLIED BOTH THE CLEARLY ERRONEOUS
STANDARD AND APPLICABLE LAW ..... 14
fl. THE COURT OF APPEALS DID NOT ERR IN
DETERMINING THE RESULTS OF THE POLL
SHOULD NOT HAVE BEEN
ST URI nN a wh on ke 21
ili
Page
Il. THE RELIGIOUS ACCOMMODATION
REQUIRED BY THE NINTH CIRCUIT IN THIS
CASE DOES NOT VIOLATE THE
ESTABLISHMENT CLAUSE OR THE
TENTH AMENDMENT TO THE UNITED
SRALE CRIN RELWEEO ct est eee nt 26
AO Sass a ee hee ee ee ke 29
APPENDIX A - Reporter’s Transcript Vol. II (Direct
Examination of Maria Lozano) .............. la
APPENDIX B - Reporter’s Transcript Vol. III (Direct
Examination of Eliza Martinez) ............. 22a
APPENDIX C - Reporter’s Transcript Vol. IV (Direct
Examination of Mimi Khan) ............... 27a
APPENDIX D - Reporter’s Transcript Vol. V (Cross-
Examination of Howard Ingham) ............ 34a
APPENDIX E - Reporter’s Transcript Vol. V (Direct
Examination of Martina Haleamau and Cross-Examination
ee Pe oa sf 3 ee e VE ES S5la
APPENDIX F - Reporter’s Transcript Vol. VI (Continued
Cross-Examination of Martina Haleamau)....... 62a
APPENDIX G - Excerpt from Defendant’s State of
ees WOGR-TUU SE gb i de ee eee cess 68a
APPENDIX H - Excerpt from Defendant’s State of
California Brief in Ninth Circuit ............ 69a
iV
TABLE OF AUTHORITIES
Page
Cases:
Anderson v. City of Bessemer,
ee Ui ee RO 6 se a ka OE We 14,27
Ansonia Bd. of Educ. v. Philbrook,
oF ae LOE 6 ae eke eee 20,29
Beadle v. City of Tampa, 42 F.3d 633 (11th Cir.),
cert. denied, 115 S. Ct. 2600 (1995) ......... 17,18
Beadle v. Hillsborough County Sheriff’s Dept.,
29 F.3d 589 (11th Cir. 1994),
Con. Galea, 1123 S. CA. BOG4 CAIRO) ow kk he 17
Boomsma v. Greyhound Food Management, Inc..,
639 F. Supp. 1448 (W.D. Mich. 1986) ......... 21
Brener v. Diagnostic Center Hosp.,
Oss © oe bes Ce as Se a a ho Sn Cee 17
Brown v. General Motors Corp.,
Gus Fae See et Gs Be 6 ks ERS 13,19
Edwards v. Aguillard, 482 U.S. 578 (1987) ........ 29
EEOC v. Arlington Transit Mix, Inc.,
Pat Fa eee Ce es Be 4 eek eS RS 17
EEOC v. Hacienda Hotel,
Son F208 1 Ge Ce. TF) ook ov ee ee eC ESS 20
EEOC v. Universal Mfg. Corp.,
9 Pig Lf | ne area ar 20
Estate of Thornton v. Caldor, Inc..,
Se a CEP CHP 8k ek eR ES ERGA eR 29
Eversley v. MBank Dallas,
Pa eee Pe GG SOOO Meee Soe een wed 18
Gillette V. United States, 401 U.S. 437 (1971) ...... 29
Nottelson v. Smith Steel Workers D.A.L.U. 19806,
oe Fe Ge Cee Ge. SET on hn Oi SRS 6 Swe UX 29
Pittsburgh Press Club v. United States,
BFe ae Fae CO le BOT bch ot eee ene 24
Protos v. Volkswagen of America, Inc..,
oat Pik Lae ee Os FP 6 oh ae A es 12
Soloman v. Northwestern State Bank,
Sar Pe tae ee es ee o's vce CNRS PRA AES 13
Standard Oil Co. of California v. Moore,
251 F.2d 188 (9th Cir. 1957),
Ot: GANENE, FIG UB. Fis GIO 6 6 vo we 5 26
Toledo v. Nobel-Sysco, Inc.,
Soe &.26 1461 (1A Cir. 1959) 2. wc ewes 12
Tooley v. Martin-Marietta Corp. ,
648 F.2d 1239 (9th Cir. 1981),
cert. denied, 454 U.S. 1098 (1981) .......... 12,13
vi
Toys "R" Us, Inc. v. Canarsie Kiddie Shop, Inc.,
aoe ©. oapp. LISS (.D. N.Y. 1963)... es 25
Trans World Airlines, Inc. v. Hardison,
Ce Seas ee TE ee keer ae eA eee ele oR 12,17
United States v. City of Albuquerque,
ae © eee 2S CRO Ga. TGPR) ww eee ve ees 17
United States v. United States Gypsum,
FEE ee SORE few hale Bek ele 14
Wisner v. Truck Central,
7" © ae bot Ae GE. EGO) oe ccc ace 17
Zenith Radio Corp. v. Matsushita Elec. Indus. Co. ,
Ss F. See. T3is GED. FE. WIS] 6 ea 26
Zippo Mfg. Co. v. Rogers Imports,
210 F. Supp. G70 G.D. N.Y. 1963) 2. we 25
Statutes and Regulations:
See ae NE aS ea ee MARRS owas 27
Te Rae: ee. Re ee Ew le Ee 17
Ze CPR. 8 1605. 20OK IG) CSSD) ig cc i vc 13
Vii
|
hn aides toe ——EE Oe Ss SS ee ee ee
STATEMENT OF THE CASE
Introduction
In its Petition for Writ of Certiorari, the State of California
presents facts in a distorted and incomplete manner. In some
instances, it takes great license in summarizing testimony
while omitting facts unfavorable to its interests.
Respondent generally adopts the factual statements included
in the court of appeals opinion under the heading
"Background." App. at 3-9.! To a large extent, the Ninth
Circuit’s recitation of the facts reiterates the trial court’s
findings of fact, App. at 34-39, with one notable exception --
the claimed outcome of a poll, App. at 38. The court of
appeals determined that poll to be fatally flawed, App. at 20,
and found, to the extent the district court relied on the results
of the poll, it was reversible error. App. at 22.
Nevertheless, petitioner’s statement of facts continues to
improperly include the claimed results of the poll as one of its
linchpin factual claims. Pet. at 8.
Because respondent did not attempt to use involuntary trades
as a method of accommodation, petitioner’s factual
representations concerning the claimed work schedule
preferences are irrelevant. What is relevant is how use of the
scheduling process already in place, coupled with voluntary
trades at this entry level employment position, together with
normal subsequent transfers, if permitted by petitioner, could
"References appearing herein are as follows: "App. at__"
refers to the Appendix to the Petition; "App __ infra at __a"
refers to the Appendix to this Brief; "RT __" refers to the Reporter’s
Transcript on Appeal; "Pl. Ex. _" refers to plaintiff's trial exhibit; "Pet.
at _" refers to the Petition for Writ of Certiorari.
1
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have resulted in a reasonable accommodation.
Statement of Facts
On October 18, 1982, Opuku-Boateng was awarded the
position of plant quarantine inspector at the Border Inspection
Station in Yermo, California, to begin working November 2.
That station employed a total of 15 permanent inspectors,’
including 5 supervisors. It operated 7 days a week, 24 hours
a day, and maintained 3 eight-hour shifts: day, evening, and
night. The size of the staff and number of shifts increased
during certain times of the year, such as summer. App. at 4.
oS
As the trial court found, employees were required to work
"an equal number of undesirable weekend, holiday, and night
shifts." Policy required employees be assigned varying
schedules to avoid the possibility of collusion between
inspectors and truckers and to expose inspectors to the myriad
commodities being transported. App. at 5.°
Upon being selected for the permanent position, Opuku-
Boateng terminated his temporary employment at another
location with the Department and moved his family to Yermo.
: "Often temporary inspectors were used to supplement the work force
when needed. App. A infra at 15a-16a; RT 500.
t 3Although petitioner refers to the scheduling arrangement as a
"rotating shift," Pet. at 2, it was not the normal "rotating" shift within
which an employee would be scheduled according to sequential rotation.
The shift assignment depended on the discretion of the scheduler. See App.
A infra at 16a-19a. In fact, the schedule was established so it would be
non-predictive to avoid collusion. RT 864-65. The actual work schedules
at smaller inspection stations, such as Meyers and Topaz, did not follow
a rotational schedule. Pl. Ex. 25. Plant inspectors were allowed to
voluntarily trade or swap shifts among themselves. RT 400-01, 937.
2
A LINN LG ORE ee
On October 28 he visited the station where he reviewed the
work schedule learning he was scheduled to work Saturday,
November 14. He informed the acting supervisor, William
Whitacre, that his religious beliefs precluded him from
working on his Sabbath. App. at 5. Whitacre became angry,
telephoned his supervisor Charles Gray, saying "there is a guy
here who says he cannot work Friday, he cannot work
Saturday, he cannot work Sunday, and we don’t need him
here." RT 111-12.
Whitacre advised Opuku-Boateng unless he agreed to work
Saturday his appointment would not be processed.
Respondent telephoned Gray to inform him of the problem.
App. at 5. Contrary to Whitacre’s assertion, respondent
advised Gray he was not requesting all three days off. He
also said he was willing to take night positions and work every
Sunday or do anything else to work out an accommodation.
RT 124. Respondent also noted that since there were three
shifts on Friday, he could work at least one, and possibly two,
as well as one of Saturday’s shifts. RT 214-16.
Gray told Opuku-Boateng another employee wanted Sundays
off, and respondent indicated he would work Sundays if that
employee would work Saturdays. RT 221-23. Gray said to
agree to that would be demoralizing to others. RT 113-15.
Gray advised respondent the Department could not
accommodate him but then said he could not make that
decision without speaking with his superiors. RT 115-16.
Gray spoke with the program supervisor, Howard Ingham,
about Opuku-Boateng. RT 907. Ingham testified he instructed
Gray not to complete respondent’s appointment but said he
was "going to clear [it] through Personnel to make sure [he
was} on solid ground." RT 975. Ingham then contacted
personnel indicating he did not feel the Department should
| eee ee Semen
continue with respondent’s appointment. RT 976.
On November 1, Ingham wrote Opuku-Boateng saying his
request for accommodation had been reviewed and if he
wanted to work as a plant inspector, he would be expected to
work assigned shifts as scheduled. App. at 7-8. On
November 3 respondent’s attorney filed a complaint on his
behalf with the State Personnel Board claiming violations of
state and federal law. App. at 8. On November 8 Ingham
informed respondent the appointment would not be made since
he could not be "available to work frequently from Friday
sundown through Saturday." Jd.
DISPUTED STATEMENT OF FACTS
Factual exaggerations and inaccuracies pervade petitioner’s
statement of facts:
(1) Petitioner states that "[w]jhile one or two employees
were willing to make occasional trades, none were [sic]
willing to trade with the respondent on a regular or permanent
basis." Pet. at 8; also see p. 12. In overstating the facts,
petitioner refers to RT 444-47, but fails to accurately state that
testimony. Maria Lozano, one of the supervising employees,
testified: "I would be willing to trade with him sometimes but
not all the time." RT 444. However, she also testified she
assumed other employees would be willing to swap with
respondent. /d. at 445. Lozano was concerned about any
permanent requirement imposed by the Department that she
swap, particularly when she had been told that respondent was
requesting three entire days off each week. Id.‘
“Petitioner failed to include the testimony of Delbert Lee, an inspector
at Yermo and one of the State’s witnesses. At the trial the State never
even asked Lee whether he would have been willing to trade. However,
4
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(2) Petitioner contends the evidence showed most employees
preferred not to work Saturdays because they wanted to be
with their families. Petitioner fails to reveal the testimony was
for both Saturday and Sunday. Lozano testified Sunday was
equal to or an even more undesirable work day. Lozano
testified some, but not all, preferred to be off weekends. Jd.
at 442. "But not everyone that works at the Yermo station...
have the same priorities" concerning days off, she said. /d.
at 476. She acknowledged that while attending school, she
did not prefer to have Saturdays off. Jd. Petitioner also cited
William Whitacre. But he testified a successful Saturday swap
depends upon the employee with whom you request a trade.
Id. at 501. The only other testimony cited by petitioner was
that of Ingham who testified only that "employees want[ed] as
many weekends off as possible." Jd. at 1012.
(3) Petitioner stated that "getting another inspector to give
up a weekday shift for a Saturday was very unlikely." Pei. at
11 (emphasis supplied). The only support for this statement
was from Fred Sandridge who testified it was easier to trade
a weekday than a weekend. Jd. at 633. Sandridge testified
employees "like their day shifts on Saturday, and very seldom
-- again, would trade into evening shifts and 4:00 to midnight
and graveyards only if they were going to school." Jd. at 640.
Sandridge testified Sunday was an even heavier workday than
Saturday, the heaviest they had. Jd. at 634. Lozano agreed
that a perscn who does not want to work on Saturday would
have less success swapping with an employee who has to work
on a Tuesday because it would break up his/her days off. Id.
Lee testified he and other employees engaged in shift swapping to obtain
time off for "personal pleasure." RT 887. He said there never was a time
when he was unable to get off from work. Jd. He testified he knew of no
preference among employees at Yermo concerning days to be swapped and
he had no preference.
at 438-39. Elisa Martinez testified it depended upon the
employee with whom one attempted to swap whether it would
be more difficult to be off on a Saturday. RT 501.
(4) Petitioner acknowledged that a likely trade was a
Saturday shift for a Sunday one. But contended the pool of
people with whom one might make such a Saturday-Sunday
trade was generally limited to only two other inspectors. Pet.
at 11. The testimony, however, shows the pool would also
include additional inspectors who were. off duty, thus
increasing the available pool. Jd. at 637. In addition, there
were six- and nine-month seasonal employees as well as "time
worked" employees who were available for assignments when
needed. App. A infra at 15a-16a; RT 500, 509.
Gray told Opuku-Boateng there was an inspector who
wanted to be off on Sunday for religious reasons. RT 221-23.
But apparently no consideration was given to such reciprocal
trades for religious reasons. Martina Haleamau, branch chief
at the Department who testified for the State, had the overall
responsibility for five major programs, including quarantine
enforcement. She testified that such trades would make
accommodations easier. Jd. at 1175.
(5) Petitioner flatly states that "[e]mployees also keep track
of the shifts they work, and would complain if they perceived
an unfair allocation of weekend and weekday shifts." Pet. at
8. But the testimony shows that if some employees did this,
others did not. RT at 501, 578, 886.
Petitioner’s statement is also misleading. Although petitioner
cites the testimony of Ingham to support its position about
scheduling complaints, when Ingham was asked to provide an
idea of some of the complaints he had received about
scheduling, he focused not on Saturday or weekend scheduling
concerns, but rather on graveyard and holiday shifts. He
testified:
Primarily it was the assignment of too many graveyards,
too many -- "I’m getting assigned more graveyards" or
"I’m being assigned more swings” or "I’m not getting
holidays that the others are getting," and it was why we
were almost paranoid to the point of trying to be equal to
all employees.
RT 958. Although petitioner cites Fred Sandridge, he, like
Ingham, confirms the complaints did not relate to weekend
scheduling, but rather graveyard shifts. Jd. at 608. It is clear
from the record that the Yermo employees’ greater concern
was assignment to graveyard shifts and holidays. Of course,
Opuku-Boateng’s offer to work the graveyard and night shifts
and holidays would have provided the Department with an
opportunity to reduce such complaints while accommodating
respondent’s religious needs.
(6) Petitioner contends there were four criteria used in
scheduling, Pet. at 8-9. The State attempts to conjoin a
mishmash of testimony taking snippets of testimony and
discarding others not in its interest. It then announces a four-
part "criteria" which no witness ever said were the four main
criteria used by schedule-makers.*° Sandridge testified about
making out a monthly schedule:
‘This argument seems to stem from petitioner’s trial strategy where
the State attempted to introduce evidence about the impact of
accommodation claiming to use the actual 1982 Yermo schedules.
However, trial examination showed this to be a sham, and the schedule had
been fictionalized to produce what the State finally admitted to the court
was its “goals” rather than actual practice. App. E infra at 5la-57a and
App. F infra at 62a-67a.
The practice every month in making out the schedule
was to be sure that the days off are posted first and
everybody got the special days that they requested such as
birthdays, anniversaries, and any other type of special,
one-period-of-time request, and then next was to fill in
the various shifts that were worked.
Id. at 600. See also Maria Lozano’s testimony confirming that
the scheduling process permitted all employees to request
shifts off prior to the posting of the schedule. App. A infra
at 4a-Sa, 10a, 19a-20a.
Sandridge was asked by the court whether in scheduling
"each person would work the same number of shift number 1
on the same day, so that, if possible, every person would
work the same number of shift number 1 on Thursday as
everybody else and shift number 2 on any other day -- or any
day, Saturday, the same as everybody else so that everybody
ends up working during the month the same number of each
shift and the same number of each shift per day?" Sandridge
responded:
Not quite that extent. What it was, was for a 12-
month period you would try to equalize the number of
shifts worked over a 12-month period, but the days didn’t
intervene in it at all. We didn’t try to consider whether
it was a Saturday or Sunday, we just considered the total
number of each shift.
Id. at 603-04. Sandridge also stated the Department only
attempted to equalize the number of shifts posted by the
schedule-maker. He stated that "because of the number of
changes as happen immediately when you post [the schedule]
. . . you only count the assigned shifts. You do not count the
shifts that they trade into." Jd. at 609.
:
3
Martina Haleamau, cited by petitioner about the scheduling
criteria, Pet. at 8, testified only that it was necessary
to make sure that [the schedule] is equalized and they’re
meeting the criteria, 40 hours a week, that employees are
adequately -- the days, swings, and graveyard shifts are
covered and that no one employee is given favoritism
with regard to all days or all swings or all graveyards,
and to make sure that the employees all had equal time
off, whether it was during the workweek or on the
weekends.
Id. at 1105-06 (emphasis supplied). Haleamau also testified
that "[o]ne of the criteria is to try to give them a weekend off
a month. We try also to give them more than two days off if
we can because it helps them." Jd. at 1139-40 (emphasis
supplied). The record proves the Department did not follow
any pattern for the scheduling of employees, and its claim to
a four-part criteria is pure fiction. See App. A infra at 5a-6a,
17a-21a; App. B infra at 22a-26a; App. D infra at 45a-50a;
App. F infra at 62a-67a. In fact, Ingham admitted the so-
called rotation requirements were not official Department
policy, but rather his concept of "fairness" and an attempt to
"eliminate complaints." App. D at 36a.
(7) Petitioner states "[s]cheduling an inspector, like
respondent, to have a fixed twenty-four hour period off every
week at such a small station would be virtually impossible."
Pet. at 10-11. Nothing cited by the petitioner, however,
supports the statement that it would be "virtually impossible"
to provide an accommodation at a smaller station, even on a
temporary basis.
William Whitacre testified there is less flexibility for
providing an accommodation at a smaller station. But
i
Sandridge’s, RT 641-42, and Haleamau’s, RT 1017-18,
testimonies have nothing to do with the ability to
accommodate at small stations. In fact, Renee Finney, an
Adventist like respondent, was accommodated for three
months in the summer of 1980 at Topaz, a small station, and
in 1982 at Meyers, another small station, without once being
scheduled or required to work during her Sabbath. RT 695-
96, 702-04. In order to accomplish this, Finney worked more
Sundays than other employees. Jd. at 705. This arrangement
was logical since there was another employee who wanted to
attend church on Sunday. /d. All this was accomplished
through scheduling, and Finney was never even required to
trade with another employee. Id.°
(8) Petitioner states that "inspectors often could not find
others with whom to trade, even when they had compelling
reasons for the swap like a family emergency." Pet. at 12.
For example, petitioner cites Delbert Lee. However, Lee
testified there were never occasions when he was unable to
swap. Jd. at 887. Lozano recalled only one event in 1979
when she was unable to swap. Jd. at 434-35. Martinez
testified there were instances when she tried to swap shifts but
was unsuccessful. Jd. at 499. However, she testified that
from time-to-time she had requested accommodation to attend
church board meetings, stating: "If I knew ahead of time I
would ask to work certain shifts. If I didn’t know and it was
an emergency meeting, if I could trade, I did; if I couldn’t, I
couldn’t go to the meeting." Jd. at 493. But, of course, her
inability to trade may just have been due to the shortness of
the notice.
°Ingham admitted that because Finney was temporary, and not
permanent, was irrelevant since scheduling requirements for both classes
of employees are the same. App. D at 34a-35a.
10
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(9) Petitioner states that efforts were made to temporarily
accommodate needs of inspectors for time off for things like
college courses or church meetings but were only for
temporary periods. Pet. at 12. Although college courses
lasted only for a semester, some inspectors continued semester
after semester. For example, Deedee Day pursued a degree
at Cal State in San Bernardino.’ App. A at 5a, 7a-8a. And
for 10 years a lay minister was accommodated to attend
Sunday church in Truckee. See App. H infra at 69a.* Also,
Adventist Renee Finney was accommodated for three
successive summers: 1980, 1981, and 1982, for a total of 10
months with only one occasion where she agreed to work her
Sabbath during the med-fly crisis. RT 694-708.°
7Lozano testified she made special arrangements for employees who
wanted to be off for school and other reasons. RT 350-51; App. A infra
at 4a-5a, 7a-9a. She testified there were three criteria she considered when
scheduling an employee’s needs: (1) she checked to see if she could
provide the requested time off; (2) if that did not work, she attempted to
give the employee a shift that would provide a sufficient window necessary
to meet the employee’s needs; and (3) if that failed, she attempted to
provide the employee with a shift that enhanced his or her ability to trade.
Such arrangements have been used on a long term basis to permit
employees to attend college. RT 377-78, 380-82. See also App. A infra at
Sa.
Ingham acknowledged the ten year accommodation of the lay minister
in Truckee had been accomplished through voluntary trades, but he was
opposed to allowing respondent to be accommodated that way. Ingham
speculated a problem might arise at Yermo even though no one else had
requested off sundown Friday to sundown Saturday. App. D infra at 36a-
44a. Ingham testified his refusal to accommodate respondent came from
administration who said “thou shalt not . . . accommodate . . . for any
reason.” Jd. at 38a.
Ingham admitted if he had known, he would have refused the
seasonal employment and religious accommodation of Finney. App. D
infra at 34a-35a.
11
REASONS THE PETITION SHOULD BE DENIED
INTRODUCTION
This is a straightforward Title VII case. It was decided on
the application of Title VII’s religious accommodation
provisions, as interpreted by this Court in 7rans World
Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). Although the
trial court found in favor of the petitioner, the court of appeals
concluded the trial court’s findings of undue hardship were
Clearly erroneous. Respondent further contends when an
employer claims it is unable to offer any reasonable
accommodation without undue hardship, it must thereafter
prove by competent evidence such an accommodation is not
possible. Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1489
(10th Cir. 1989). And in so doing, it must demonstrate both
the magnitude of, as well as the fact of, the hardship. Protos
v. Volkswagen of America, Inc., 797 F.2d 129, 134 (3d Cir.
1986); Tooley v. Martin-Marietta Corp. , 648 F.2d 1239 (9th
Cir. 1981), cert. denied, 454 U.S. 1098 (1981). This the trial
court failed to do.
Respondent sought accommodation through existing
procedures used at Yermo by other employees with regard to
scheduling, voluntary trades, and subsequent transfers. The
evidence proved the State’s policy requiring unpredictability
in alteration of work shifts at border stations would not be
compromised by such an accommodation. After a full review
of the record, the court of appeals agreed.’°
There is ample evidence provided by Yermo supervisors that
respondent could have been scheduled off during his Sabbath without
violating any of the State’s legitimate concerns. RT 583; RT 1096. In
fact, all employees within each border station did not rotate every month.
App. D infra at 45a, 47a-49a; RT 1088-89.
12
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As noted by the Ninth Circuit, the State conceded it had an
obligation to investigate whether voluntary shift trading was
feasible. The court of appeals concluded the district court,
relying on the results of a flawed poll of the Yermo
employees, had erroneously concluded voluntary shift trades
were not feasibie.!! The court of appeals decided the district
court erred in relying on those results and further determined
the State had failed to offer any probative evidence that would
demonstrate a system of voluntary shift trades was infeasible.
App. A at 20a-21a.”
The Ninth Circuit also concluded the poll results evidence
was inadmissible as hearsay and further was not reliable. In
fact, the district court itself, though subsequently relying on
the results of the poll, properly determined it could not
consider testimony about the poll results. App. A infra at 21a.
Notwithstanding this determination, the trial court then relied
expressly on the poll’s results when determining whether
voluntary shift trades were feasible. App. A at 63a. Thus, in
order to prevail, petitioner must convince this Court to
overturn the appellate court’s evidentiary holding. A review
\Instead of conducting a poll, under the EEOC “Guidelines on
Religious Discrimination,” 29 C.F.R. § 1605.2(d)(1)(@) (1980), the
employer has the duty "to facilitate the securing of voluntary substitutes.”
The trial court considered such an obligation purely esoteric. RT 463-64.
\2The trial court’s conclusion an accommodation through voluntary
trades inferentially would have resulted in an undue hardship was premised
upon the its assumption or speculation that at some time in the future
respondent would have been unable to secure a voluntary trade. But
"[f]indings cannot be based on speculation and conjecture." Soloman v.
Northwestern State Bank, 327 F.2d 720, 273 (8th Cir. 1984); see also
Brown v. General Motors Corp., 601 F.2d 956, 961 (8th Cir. 1979);
Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1243 (9th Cir. 1981),
cert. denied, 454 U.S. 1098 (1981).
13
of the full record discloses there was no misapplication of the
clearly erroneous standard in the court of appeals’ reversal of
the trial court’s finding of undue hardship.
This case is no different from the dozens of other fact-
sensitive religious accommodation cases decided in the lower
courts since Hardison. It has little application beyond the
peculiar fact situation present in this case. As wiil be shown,
the court of appeals’ decision does not violate the teachings of
Hardison and is in accord with other lower court decisions;
nor does it violate the Establishment Clause or the Tenth
Amendment to the United States Constitution.
I. THE COURT OF APPEALS PROPERLY APPLIED
BOTH THE CLEARLY ERRONEOUS STANDARD
AND APPLICABLE LAW.
This Court in Anderson v. City of Bessemer, 470 U.S. 564,
573 (1985), recognized that the meaning of the phrase "clearly
erroneous" is not immediately apparent. Citing United States
v. United States Gypsum, 333 U.S. 364 (1948), the Court
found that in applying that test one of the foremost principles
is that "[{a] finding is ‘clearly erroneous’ when although there
is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed." Jd. That is exactly what the
court of appeals did here in concijuding the trial court’s
holding on the "undue hardship“ issue was clearly erroneous.
App. at 16, 18-21, 24, 27, 29-30.
In struggling to demonstrate that the court of appeals
exceeded its role, petitioner incorrectly contends the Ninth
Circuit reweighed the evidence in a de novo fashion providing
as "the most glaring example of this reweighing"” the facts
relating to the accommodation of a lay minister in Truckee.
14
rl
ee
Petitioner states: "The district court found that the Truckee
episode was evidence that accommodation was likely to cause
morale problems and further disruptive requests for
accommodation." Pet. at 26. Petitioner argues that the court
of appeals had no right to read the evidence as indicating that
religious accommodation would be successful. Jd.
The court of appeals did not determine the State’s witness’
testimony was not credible either as to the accommodation
having been made for 10 years or that the accommodation had
come to an end once several other employees filed a grievance
also seeking Sundays off for religious reasons. The only point
the Ninth Circuit made with regard to the Truckee
accommodation appears in a footnote under the heading
"Temporary Accommodation and Transfer." The opinion
States:
Finally, Opuku-Boateng proposed a temporary or trial
| accommodation that would have allowed the Department
| to experiment with the proposed accommodation and
permitted both parties to investigate the possibility that
| Opuku-Boateng could be employed in another job in the
Department or some other State agency, should the
| accommodation prove infeasible in practice. The district
| court rejected this suggestion also. We disagree. At the
very least, the State should have either temporarily
scheduled Opuku-Boateng not to work on the Sabbath or
sought to obtain voluntary shift trades for him on a short-
or long-term basis.
App. at 29." The court then amplifies its conclusion in
The State’s own “expert,” Martina Haleamau, confirmed <n
accommodation was feasible. She testified it was possible to accommodate
respondent "where you didn’t have many people wanting to be
15
footnote 26, stating:
Lozano testified that she had used three techniques to
accommodate requests for time off. She (1) attempted to
schedule the employee to provide the requested day off,
(2) provided the employee with shifts that would afford
him sufficient time to attend to his personal business, or
(3) schedule the employee to work a desirable shift to
enhance his ability to trade with other employees. RT
377-4 to-20. The record indicates quite clearly that
temporary accommodations were possible, at least for
shifts that were scheduled at a particular time. Lozano,
for example, testified that she accommodated herself and
two other inspectors semester-long college courses. RT
377-2 to-25. The record also shows that a Protestant
minister who needed Sunday mornings off had been
accommodated for a period of 10 years."*
App. 29-30 n.26 (emphasis supplied). Clearly this comment
with regard to the Truckee accommodation cannot be
concluded to be a de novo reweighing of the evidence.
Petitioner contends the Ninth Circuit ignored the district
court’s factual finding that accommodating Opuku-Boateng
would burden other coworkers who would have to provide
cover and be available for emergency assignments. Pet. at
Sabbathkeepers at the same station and if it was a large station.” RT 1212.
Petitioner quibbles with the Ninth Circuit’s suggestion that the
accommodation was for a period of 10 years. It was the State of
California, however, in its court of appeals brief that made this claim. See
App. H infra at 69a. But even if the accommodation lasted only for two
or three years, as now suggested by petitioner, it in no way diminishes the
fact a temporary accommodation was feasible.
16
‘
26. This trial court finding, App. at 62, was dealt with in the
court’s mandatory scheduling portion of its opinion rather than
under the voluntary shift trade portion. The district court, of
course, did not find that a voluntary trade would result in a
discriminatory impact on coworkers.
The court of appeals, App. at 16-17, concluded the district
court had too narrowly read Hardison so as to proscribe all
differences in treatment, noting that in Hardison the proposed
accommodation would have conflicted with the contractually-
established seniority system, thus violating the employee’s
seniority rights under the collective bargaining agreement but
denying him shift preferences. 432 U.S. at 80. The court of
appeals noted that in contrast to Hardison, in this case the
scheduling of shifts was not governed by any collective
bargaining agreement, and the proposed accommodation would
not have deprived any employee of any contractually-
established seniority rights or privileges or indeed any
contractually-established rights or privileges. App. at 17.'5
Petitioner argues, however, that accommodating a
Sabbatarian where the employer, having a neutral rotating
System, Operates a workplace 24 hours a day need not grant
special shifts to a Sabbath worshiper. Petitioner cites several
lower court decisions including Beadle v. City of Ti ampa, 42
F.3d 633, 635-37 (11th Cir.), cert. denied, 115 S. Ct. 2600
(1995); Beadle v. Hillsborough County Sheriff's Dept., 29
F.3d 589, 592 (11th Cir. 1994), cert. denied, 115 S. Ct. 2001
(1995); Wisner v. Truck Central, 784 F.2d 1571, 1572-74
(11th Cir. 1986); Brener v. Diagnostic Center Hosp., 671
F.2d 141, 144-47 (Sth Cir. 1982); United States v. City of
‘Sin Hardison, 432 U.S. at 81-82, this Court noted seniority systems
are afforded special treatment under 42 U.S.C. § 2000e-2(h). See EEOC
v. Arlington Transit Mix, Inc., 957 F.2d 219, 222 (6th Cir. 1991).
17
Albuquerque, 545 F.2d 110, 113-15 (10th Cir. 1976), cert.
denied, 433 U.S. 909 (1977). Pet. at 4-5. Those cases,
however, are clearly distinguishable from the facts here.'°
In each of those cases (other than Beadle v. City of Tampa),
voluntary trades were permitted, but the employer was asked
_ by an employee to deny the shift and job preference of other
employees solely to accommodate that employee’s religious
needs. In each case there was a rotating shift that arguably
created a vested claim on the part of other employees for
specific days off, and it was argued such an arrangement is
similar in effect to the collective bargaining agreement in
Hardison which contractually provides for scheduling on the
basis of seniority. In Beadle v. City of Tampa, 42 F.3d 633
(11th Cir. 1995), no shift trades were permitted.
Under the border inspectors’ arrangement, however, each
employee at Yermo had an equal right to request that the
scheduler take into consideration special needs they had for
their days off -- whether it be for schooling, for little league,
or for religious reasons. The scheduling procedure followed
in Yermo clearly created no vested claim to specific days off.
See App. A infra at 4a-Sa, 10a, 19a-20a.
Petitioner cites not one case that suggests when voluntary
trades are generally permitted, shift trades would not be
required as part of an accommodation arrangement. As the
court of appeals noted, the district court read Hardison too
narrowly, finding a discriminatory preference if other
16] ikewise, Eversley v. MBank Dallas, 843 F.2d 172 (Sth Cir. 1988),
cited by petitioner at page 19, is also distinguishable. There the court held
“that forcing other employees, over their expressed refusal, to switch from
the day shift to the night shift would be unreasonable and an undue
hardship." Jd. at 176.
18
Pe er
employees work more Friday nights and § turday shifts.
Here the court of appeals noted that "unlike in Hardison,
there is no evidence that the proposed shift-scheduling
arrangement would, in the end, have granted Opuku-Boateng
a privilege or imposed more than a de minimis burden on
other employees." App. at 18. In contrast, here, as the
district court concluded, all employees at the Yermo station
were required to work "an equal number of undesirable
weekend, holiday, and night shifts." App. at 18-19.
After reviewing the full trial record, the court of appeals
found that "[nJo evidence was offered that the shift
arrangements could not have been arranged in a manner that
would have insured that Opuku-Boateng and other employees
all receive an equal number of undesirable shifts. Therefore,
the State failed to carry its burden of demonstrating that
Opuku-Boateng’s practice of observing the Sabbath could not
have been accommodated through scheduling arrangements
without affording him preferential treatment." Jd. at 19.
Finally, the court of appeals noted that respondent had
himself proposed to merely use the voluntary shift trades.
Because this arrangement was voluntary and a practice
generally employed by the Yermo employees, there would
have been no preferential treatment discriminating against
coworkers. App. at 20.
The court of appeals found its conclusion to be in accord
with other appellate court decisions, such as Brown v. General
Motors Corp., 601 F.2d 956 (8th Cir. 1979). That court
Stated that
finding that a proposed accommodation would entail some
form of discrimination does not end the enquiry. The
19
Court in Hardison held that differential treatment
resulting from accommodation runs afoul of section
2000e-2(a)(1) if it: (1) would compromise other
employees’ contractual seniority rights as secured by a
collective bargaining agreement; or (2) would confer a
privilege, the cost of which was more than de minimis,
solely on the basis of the recipient’s religious beliefs.
432 U.S. at 81-85, 97 S. Ct. 2264. Neither of these
situations is present in this case.
Id. at 962.
Permitting Opuku-Boateng, like other employees, to request
days off prior to scheduling and in accordance with long-
established practice at Yermo to trade with other employees
once the schedule is posted would not constitute a preference
solely on the basis of respondent’s religious beliefs. See
Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 71 (1986);
EEOC v. Hacienda Hotel, 881 F.2d 1504, 1513 n.7 (9th Cir.
1989); EEOC v. Universal Mfg. Corp., 914 F.2d 71, 73 n.3
and 74 n.4 (Sth Cir. 1990).
The trial court made two findings with regard to voluntary
trades: (1) the results of a poll indicated that none of the
employees was willing to accommodate Opuku-Boateng on a
permanent basis; and (2) even if employees were willing to
trade with Opuku-Boateng on a permanent basis, such would
violate the Department’s policy of avoiding consistent
scheduling patterns. App. at 63-64.
The Ninth Circuit concluded the poll was flawed, and
testimony regarding the results of the poll constituted
inadmissible hearsay which could not be considered by the
district court. Thus, the record does not support the
conclusion that Yermo station employees were unwilling to
20
make a reasonable accommodation. After reviewing the
evidence, the court of appeals determined that "[t]he State
failed to conduct the type of inquiry into the feasibility of
trading shifts that would have been necessary to answer that
question one way or the other, thus to enable it to Carry its
burden." App. at 24.”
“ ON AM PG Sn tT i Ni AN) Re te A ala
The court of appeals found that "[a]lthough the Department
had a legitimate interest in varying work schedules to
discourage bribery and dishonesty, there is no probative
evidence that suggests that accommodating Opuku-Boateng’s
religious beliefs would have resulted in a schedule that was so
; predictable . . . that it would have jeopardized the
Department’s security interests." App. at 26. The record is
Clear on this point. See RT 583.
Ii. THE COURT OF APPEALS DID NOT ERR
IN DETERMINING THE RESULTS OF THE
POLL SHOULD NOT HAVE BEEN RELIED UPON.
Petitioner argues that the Ninth Circuit reevaluated the
reliability of witnesses’ testimony. Pet. at 27. Petitioner
argues that surveys and polls can be admitted as evidence
under either: (1) the hearsay exception for state of mind: (2)
the general hearsay exception for otherwise trustworthy
evidence, or (3) as the basis for an expert opinion. Pet. at 28
n.6.
At the trial the State attempted to introduce evidence
conceming a poll it took. The record demonstrates the
following with respect to that poll:
\”See a similar holding in Boomsma v. Greyhound Food Management,
Inc., 639 F. Supp. 1448, 1455 (W.D. Mich. 1986).
21
(1) Ingham instructed someone at Yermo to take a verbal
poll of employees to ascertain how many would be willing to
trade shifts. RT 987.
(2) The closest Ingham could come to identifying when the
poll was taken was within a month or so after he spoke with
Herb Cohen, the Department’s in-house counsel, about
Opuku-Boateng’s need to be off. RT 988-89. In fact, the
court asked Ingham when the poll was taken, but Ingham
could not remember. RT 1000-01. When Ingham was asked
whether the poll was taken before or after a final decision was
made on Opuku-Boateng’s employment, Ingham responded, "I
can’t recall." RT 10005-06. Further probing, counsel asked
Ingham: "Now do you have a recollection when that decision
was made terminating the process to hire . . . whether the poll
had been taken or not at that point?" Ingham replied: "I do
not recall." RT 10009.
(3) In fact, Ingham could not even remember whether it was
he or some member of his staff who may have requested the
poll be taken. RT 1037-38. Ingham’s deposition was read to
him at the trial. It disclosed Ingham had asked Gray to take
a poll. The deposition revealed Ingham received the results
of the poll a week after the poll was requested. He further
testified he did not know whether the employees were polled
or what questions were asked. RT 1039-45. Gray testified he
had no knowledge of what steps were taken by the Department
concerning Opuku-Boateng. RT 907.
(4) Whitacre, Yermo’s acting supervisor, testified that his
first day back to work following vacation was November 6,
and he did not remember hearing about Opuku-Boateng any
time in October. RT 528. Whitacre recalled a poll being
taken but did not remember how many were polled. He
testified: "Obviously not everybody could have been
22
contacted." RT 537. Whitacre’s deposition revealed he did
not recall actually taking the poll. RT 537-38. At the trial
Whitacre testified he believed there was an informal poll taken
to determine whether anyone would be willing to trade shifts
on a permanent basis. RT 536.
(5) Another Yermo employee, Maria Lozano, recalled that
prior to October 28, when Opuku-Boateng first came to
Yermo, Sandridge and supervisors Whitacre and Sholquist
informed her a potential employee would not be able to work
Fridays, Saturdays, and Sundays because he was a Seventh-
day Adventist. RT 344, 346-48, 443. Sandridge told Lozano
respondent's religion prevented him from working Fridays,
Saturdays, and Sundays. Lozano spoke with other employees
at Yermo. App. A infra at 1a-2a. Lozano said Whitacre asked
her if she would be willing to trade with respondent so he
could be off for religious reasons. Lozano informed Whitacre
she would be willing to trade with Opuku-Boateng some of the
time, but not always. RT 444-45. She also testified she
believed others would be willing to swap with Opuku-Boateng.
When asked about the possibility of trading, however, she had
understood Opuku-Boateng required a 3-day weekend off
which she considered unfair. RT 445-46, 457-58.
(6) Ingham never considered polling employees at the
Meyers Inspection Station where the Department had already
accommodated an employee, Renee Finney, as a seasonal
employee. Counsel suggested if Ingham had relocated Opuku-
Boateng to a station such as Meyers where it might have been
easier to accommodate him, it would be important to know
how those employees felt about trading. Ingham responded:
"In retrospect, I agree with you." App. D infra at 50a.
The trial court, when considering the polling testimony,
ruled:
23
I’m admitting the evidence that a poll -- the fact that a
poll was taken itself can be hearsay, but it is received of
course not for the truth of what was developed. . . . I’m
going to permit him to testify to what results were
reported to him with the understanding that they are not
being accepted by the Court as proof of the truth of the
outcome of the poll, and the Court has to recognize that
depending upon how the question is asked, the answer
may be different.
RT 1003-04 (emphasis supplied). Thus, the court of appeals
correctly held it improper for the trial court to find that "the
informal poll taken by defendants indicated that none of the
employees were [sic] willing to accommodate plaintiff on a
permanent basis, . . . [and] it would have been only a matter
of time before plaintiff would have been unable to find a
replacement to work his designated shift." App. at 63.
Undoubtedly, this error directly affected the outcome of this
case.
Although petitioner suggests in spite of the trial court’s
correct ruling that poll results testimony could noi be
considered, it still contends the court of appeals was wrong in
its evidentiary conclusion on this question. But none of the
exceptions to the hearsay rule relied upon by petitioner
permits a consideration of this poll’s results for its truth.
Pittsburgh Press Club v. United States, 579 F.2d 751 (3d Cir.
1978), relied upon by petitioner, suggests that any poll
admitted into evidence must not be unfairly worded, id. at
758, and must be objective, scientifically designed, and
impartial. Jd. at 759. The court in Pittsburgh Press Club
also suggests that poll interviewers must have no interest in
the litigation. Jd. at 758.
Many courts, in determining whether to admit surveys and
24
Pr Seer tn
polls, have looked to Judge Feinberg’s scholarly and well-
reasoned opinion in Zippo Mfg. Co. v. Rogers Imports, 216 F.
i Supp. 670, 682 (S.D. N.Y. 1963). He states that whether or
not the survey may be accepted as trustworthy depends on
whether the "questions are unfairly worded to suggest answers
favorable to the party sponsoring the survey." He also states
that "the same result would follow if the interviewers asked
fair questions in a leading manner."
In Toys "R" Us, Inc. v. Canarsie Kiddie Shop, Inc., 559 F.
; Supp. 1189, 1205 (E.D. N.Y. 1983), the court applied a strict
standard in evaiuating the trustworthiness of surveys, Stating:
The trustworthiness of surveys depends upon
foundation evidence that (1) the "universe" was properly
defined, (2) a representative sample of that universe was
selected, (3) the questions to be asked of interviewees
were framed in a clear, precise and non-leading manner,
(4) sound interview procedures were followed by
competent interviewers who had no knowledge of the
litigation or the purpose for which the survey was
conducted, (5) the data gathered was accurately reported,
(6) the data was analyzed in accordance with accepted
Statistical principles, and (7) objectivity of the entire
: process was assured. Failure to satisfy one or more of
these criteria may lead to the exclusion of the survey.
eno He ea aR SUC ROAA DAM NL oe8Es
| Id. at 774 (emphasis supplied). Clearly, the claimed poll
: ultimately relied upon by the trial court here failed at least
points 3, 4, and 7, and perhaps 5. Nontheless, the court made
no finding as to the trustworthiness of the poll.
Petitioner suggests that in spite of the court’s ruling
excluding the poll results testimony, nevertheless it could be
considered because it was testified to by an expert. It was not
25
admissible through Ingham’s testimony because his testimony
was dominated by his reliance on information excluded for
reasons that bear on the reliability of the poll’s results. Zenith
Radio Corp. v. Matsushita Elec. Indus. Co., 505 F. Supp.
1313, 1330 (E.D. Pa. 1981). Also, as the court stated in
Standard Oil Co. of California v. Moore, 251 F.2d 188 (9th
Cir. 1957), cert. denied, 356 U.S. 975 (1958), "it is for the
trial court to determine, in the exercise of its discretion,
whether the expert’s sources of information are sufficiently
reliable." Clearly here the court made no such finding and
specifically held that the results of the poll could not be
considered. For the above reasons, the court of appeals’
pivotal ruling concerning the trial court’s consideration of the
poll results is not subject to challenge.
Il. THE RELIGIOUS ACCOMMODATION
REQUIRED BY THE NINTH CIRCUIT IN THIS CASE
DOES NOT VIOLATE THE ESTABLISHMENT
CLAUSE OR THE TENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION.
Petitioner raises both the Establishment Clause and Tenth
Amendment defenses for the first time before this Court. Such
defenses were not raised at the trial nor in the court of appeals
even though the relief granted by the court of appeals was
precisely the relief requested in the trial court by respondent.
Furthermore, petitioner cites no authority for its Tenth
Amendment argument. Petitioner’s arguments for both of its
constitutional assertions are nearly identical.
As the Ninth Circuit observed, coworkers would not be
burdened by available accommodations -- principally voluntary
trades. Thus, using the accommodation process for Opuku-
26
CC
Boateng would not threaten the workplace morale.'* This
workplace morale argument is disingenuous in light of
petitioner’s statement in its Post-Trial Brief: "At no time has
defendant suggested that the ‘morale’ of the Yermo station
would inevitably suffer if plaintiff were to be accommodated."
App. G infra at 68a. Petitioner’s bold assertion that
accommodating respondent would undermine the State’s policy
of having unpredictable shifts to avoid collusion is without
merit. All that was required under the policy was there be
some change from time-to-time so that truckers did not
become too acquainted with the inspectors. RT 583, 1096.
Equally without merit is petitioner’s claim that
accommodating respondent would require the State to change
the way it schedules shifts. The court of appeals only
Suggested that in the Department’s initial "investigation of the
| feasibility of an accommodation" the Department could have,
for example, first determined the total number of Sabbath
shifts Opuku-Boateng would be assigned over the
forthcoming year as well as the projected schedules for
that period of the other employees. Then by asking the
individuals polled how many specific shifts they would be
willing to trade . . ., the State could have determined
whether the other employees . . . would collectively have
been willing to make the necessary accommodation.
App. at 24 n.22.
'’Tre Civil Rights Act was drafted to protect the discrete and
sometimes unpopular rights of individuals against the potentially oppressive
mood of the majority. 42 U.S.C. § 2000e(j) is one example of that
important purpose. See Anderson v. General Dynamics Convair Aerospace
Div., 589 F.2d 397, 400-01 (9th Cir. 1978), cert. denied, 442 U.S. 921
(1979).
27
Finally, petitioner’s argument that the Ninth Circuit requires
"that respondent be transferred to some other job in State
service if his temporary accommodation . . . fails" is
incorrect. Pet. at 23. Also incorrect is petitioner’s assertion
that a transfer would violate State Civil Service requirements.
Id. at 23-24. What the Ninth Circuit suggested was that a
temporary accommodation "would have . . . permitted both
parties to investigate the possibility" of other state
employment. App. at 29-30.
Petitioner overstates the court of appeals’ holding in its
attempt to make that court’s decision appear unconstitutional.
The court of appeals did not order petitioner to transfer
respondent to some other job in state service contrary to the
State civil service requirements, as suggested by petitioner.
Pet. at 23-24.
The plant quarantine inspector position was an entry level
position, and it is not unusual for employees in this
classification to transfer to other Department positions. App.
C infra at 32a. There is uncontradicted testimony from one of
the State’s witnesses that once Opuku-Boateng had completed
probation, he could have transferred to a position such as an
agricultural biologist or a grain and commodity inspector
without taking an examination under the civil service rules
because the transfer would be to a position in a class within
10% of his salary and responsibility level. Jd. at 31a-32a. In
fact, "[t}here are a variety of things that you can do for a
permanent employee" to accommodate his/her religious
requirements to be off work certain days. Jd. at 27a-32a.
What the Ninth Circuit’s decision requires in this case is
that respondent be provided the same opportunities for
accommodation as are generally available to al! other
employees employed as plant quarantine inspectors for the
28
State of California. They are: to give equal consideration to
his request for days off prior to scheduling, to take into
consideration his religious needs in the scheduling process so
as to enhance his ability to trade with other employees, to
permit him to engage in voluntary trades with other
employees, and to provide the same consideration for a
transfer to another position as is available to all employees
under the civil service rules. See Ansonia Bd. of Educ. v.
Philbrook, 479 U.S. 60, 71 (1986). Such accommodation
requirements do not advance religion. See Estate of Thornton
v. Caldor, Inc., 472 U.S. 703, 712 (1985) (O’Connor, J.,
concurring); Edwards v. Aguillard, 482 U.S. 578, 616-18
(1987) (Scalia, J., dissenting); Gillette V. United States, 401
U.S. 437, 454 (1971); Nottelson v. Smith Steel Workers
D.A.L.U. 19806, 646 F.2d 445, 455 (7th Cir. 1981).
CONCLUSION
For all the foregoing reasons, the State of California’s
Petition for Writ of Certiorari should be denied.
Dated: April 14, 1997
Respecifully submitted,
LEE BOOTHBY
Counsel of Record
Boothby & Yingst
4545 42nd St., NW, Suite 201
Washington, DC 20016
(202) 363-1773
Counsel for Respondent
29
APPENDIX
la
APPENDIX A
REPORTER’S TRANSCRIPT ON APPEAL
VOLUME II OF VI pp. 373-399
Maria Lozano
Direct Examination by Mr. Boothby
[p. 373]
Q
I don’t remember exactly where we left off, but I think
we were talking yesterday about a conversation, for
instance, that you had with Mr. Sandridge. Did you also
talk to other employees about what Mr. Sandridge had
told you about Mr. Boateng coming and that he was --
because of his religious concerns was not able to work
Friday, Saturday, and Sunday? Did you talk to other
employees about that?
Yes, sir.
Was that conversation before Mr. Boateng came to the
station?
Yes, sir.
All right. At any point in time that You can recall, did
anyone in Management or in supervision with the
department say anything to you concerning the fact that
there might be a duty to accommodate the religious needs
of employees?
Um, Mr. Whitacre asked me if I would be willing to
trade Mr. Boateng.
Okay. Did he tell you that there was some federal or
State requirement to look at that as a possibility?
No, sir.
2a
[p. 374]
Q_ And as I understand it, you were under the impression at
the time that we were talking about three days; is that
true?
A Uh, yes, sir.
Q_Let’s talk a little bit about trades. Did you ever -- were
you ever involved in trading with other employees to
either accommodate your own needs to be off or to
accommodate another employees needs to be off?
A_ Yes, sir.
Q_ And can you give me illustration of the kind of events or
concerns or interests that would cause you for your
purposes, to trade?
A Unm, I have nephews who play baseball, so sometimes if
I’m working a swing shift I'll ask someone who’s
working a day shift or 10:00 to 6:00 to trade so I can
attend their game.
Q. Allright. Any other reasons?.
A Um, I’ve traded sometimes so I can attend 2 medical
appointment that I wasn’t able to give my supervisor pre
-- Or my station manager pre-advance warning, because
normally I try and schedule my medical appointments on
my days off; but sometimes I can’t, so if it turns out that
I can’t, then I -- if it’s in the morning I'll try and trade
for a swing shift so I can go in the morning and work at
night.
[p. 375]
Q
How do you go about doing that? Let’s say that you
want to be off in order to go attend a baseball game --
your nephew, is it?
Yes, sir.
How do you go about doing that? Do you look at the
schedule and find out somebody that might not be
working at that time?
No, sir, I look at the schedule to see who’s working and,
um, then I'll just ask them. I’ll say whoever it is, I’ll say
“could you tirade me because I’d like to go to my
nephew’s baseball game, and if you ever need a trade
then later Ill trade you if I can.”
How long -- how often would this occur that you would
-- not just for a baseball game, but trade for any
purposes, let’s say, within the course of a month?
Maybe once, maybe never.
All right. Did you ever accommodate some other
employees who wanted to be off?
Yes sir.
And would you normally agree to a trade if another
employee asked you if it did not conflict, with something
that you had planned?
Yes, sir.
Did you normally find other employees to accommodate
your needs when they didn’t have something [p. 376]
that they were committed to?
Yes, sir.
4a
Q Did you find that there was generally a spirit amongst the
employees at Yermo to accommodate one another’s
scheduling’ needs and to trade as best they could?
A Sometimes.
Q_ Were there certain people that were more accommodating
than others?
A Yes.
Q_ All right. Would you tend to go to the people that were
more accommodating?
A Yes, sir.
Q If Mr. Boateng had been, employed there, would you
have treated him the same as any other employee in
considering his needs for trade?
A Yes, sir.
Q. All right. Nov are you aware of any inspectors at the
Yermo station that have gone to school while being
employed there?
A_ Yes, sir.
Q_ And how would that be -- now you’ve done scheduling?
A Yes, sir.
Q
All right. Have you scheduled people to be [p. 377] off
- for school purposes?
A Um, no, not normally.
Have you done it at all?
A Um, what you do, I’ve given them time off for school
but, you know, as the schedule -- like they have to have
-- if we’re talking about rank and file, they have to have
~
Sa
two days off in a seven-day work week. So if it works
out -- if the schedule works out that there’s people,
there’s plenty of people, then I'll try and give them a day
off that has their school; but if not, I’ll try to give them
a shift where they can go or possibly there’s enough
people where they can trade someone.
So you look at really three factors. You look at giving
them a day off, and if that doesn’t work out, giving them
a shift that would give them that window of time that’s
necessary for the school, or the third possibility is giving
them a shift that perhaps enhances their ability. to trade?
That’s correct, sir.
Who have you done that for?
Um, I’ve done that for Deedee Day, I’ve done that for
myself because I go to school, I’ve done that for Sonia
Minios. That’s all who I can think of right now, sir.
[p. 378]
Q
OF 0 YP
All right. You indicated that you’ve done it for yourself,
that you have worked out an arrangement so you could
go to school; is that true?
Yes, sir.
What are we talking about, college?
Yes, sir.
And so are we talking about at least one or two days a
week that you have at least a period of time that you have
to be or you should be or supposed to be at school on a
regular basis?
The way I go to school right now, I go to school on
Tuesdays and Thursdays, evenings --
6a
Q Allright.
| A -- from 7:00 to 9:50.
Q How do you work out -- make certain, or at least
attempting to make certain, that you’re going to be off so
that you can attend school on a regular basis at those
times?
A Um, well, see, I’m not on a 40-hour work week.
All right.
A Okay. So my schedule says that I can be off anywhere
from a day -- or excuse me, I can work anywhere from a
day to 18 days straight, but -- and depending on how
many Saturdays and Sundays there are in the month and
depending if there’s any holidays in the month, [p. 379]
those are the days off that I have. So I either work day
shifts or I’ll work graveyards, or if I work swing shift I'll
schedule myself so possibly I can trade with somebody.
&
Q All right. Now you indicated that of course there’s
Saturday and Sunday and there’s holidays?
A Yes, sir.
Q_ And as I understand it, am I correct that at least the other
inspectors have a 40-hour work week and that recognizes
that there’s a five-day week, and they also get off a
holiday if there’s a holiday that falls in a month; is that
true?
A That’s correct, sir.
Q Okay. Now because you’re in school, do you tend to
give up your Saturdays and Sundays and holiday in order
to be able to attend school as part of your scheduling
arrangement?
7a
Um, I try to.
So maybe Saturday and Sunday is preferred by some, but
because of your schooling you might prefer to be off on
whatever day your school on; is that correct?
Um, not all the time.
Not all the time; some of the time?
Sometimes yes, sometimes no.
. 380]
Okay. Now with reference to Deedee Day --
Yes, sir.
-- now she’s a regular 40-hour employee, is she not?
Yes, sir.
All right. She would be working the same schedule as the
other inspectors, being rotated in the various shifts just
like any other inspector; is that true?
A_ Yes, sir.
Q_ How long has she been attending school?
A Um, I’m not really certain. I know that she was going to
school when she was working at Long Valley inspection
station, and I know that she’s going to school now.
Fan ate habia ais
Q Is she pursuing -- to your knowledge, is she pursuing a
degree in psychology?
A Yes, sir, that’s correct.
Q_ And do you know what school she attends?
A She’s going to Cal State San Bernadino.
8a
Q So she would have to travel from Yermo to San
Bernadino to go to college; is that true?
A_ Yes, sir.
Q Do you know how many days a week?
A No, sir, I don’t at this time.
[p. 381]
Q_ Do you know if it’s more than one day a week?
AI believe so.
Q_ And although it may change from semester to semester,
would there be certain days that she needs off in order to
do that?
A Um, I don’t know. I guess.
Q Well, is that the way that she -- her schedule has been
changed by the three methods that you’ve suggested in
the scheduling process?
A Yes, that’s normally the way I would try and schedule
her.
Q_ And you’ve done that, have you not?
A Yes, sir.
Q_ And to your knowledge, has she attended college?
A Yes, sir.
Q. All right. Do you know how many years it’s been that
you have known of her attending college? Can you
quantify it in years?
A Um, not really. I know she went to school at Long
Valley.
9a
Q_ When was that?
A She came back to Yermo last year, I believe, and then
prior to that she was coming from Long Valley, so I
know she went to school in Long Valley.
[p. 382]
Q Is she still going to school?
A Yes, sir.
Q_ And she’s still being accommodated in that fashion; is
that true?
A_ Yes, sir.
Q Okay. Do you know a Ben Blinko?
A_ Yes, sir.
Q Has he attended school also by this type of arrangement?
A I can only assume he has, sir. I don’t know.
Q Well, I don’t want you to assume. Do you have
knowledge _ that --
A_ I know he’s gone to school, yes, sir.
Q How about Wayne Laslow?
A Leslie. Yes, I know he’s going to school, sir.
Q Has he been accommodated in that same fashion, to your
knowledge?
A I believe so, yes, sir.
Q Are there people that are permanent employees,
permanent hires, at Yermo?
Yes, sir.
10a
Now as I understand your testimony -- let’s take you, for
instance. You would attempt to get -- would you attempt
to get your request in -- when somebody else was doing
the scheduling, would you [p. 383] attempt to get your
request in at a certain time?
Yes, sir.
And as I understand it, it’s so many days prior to the
posting of the schedule; is that correct?
Yes, sir. The schedule -- your requests have to be in by
the 29" of each month.
Prior to the schedule -- the posting?
Yes, sir.
Okay. And the posting is supposed to be on the 15° of
the month prior to when the schedule takes effect; is that
true?
That is correct, sir.
Now are there times when the schedule has already been
posted and so the time in which you have to get your
request in has already passed when you find that you
need or want to be off for some reason?
Yes, sir.
Have you ever made a request -- I’m not talking about a
trade yet, but a request for a scheduling change after the
time has come and gone to put your request in?
Are you asking me if I’ve ever come to a point where it’s
past the time to hand in the note and I need to be off for
something?
Yes.
lla
Ip. 384]
Yes, that’s happened to me before, sir.
Have you gone to the person who’s doing the scheduling
and asked if they can make an adjustment?
No, normally I'll wait to see how the schedule turns out
and then go from there and see if I can trade around.
All right. So you normally do that by trade?
Yes, sir.
Okay. Are there certain days of the week that based
upon your -- what is it, eleven years now experience
there?
Twelve and a half.
Twelve and a half years. Based upon your twelve and a
half years of experience at Yermo, are there certain days
that you have found are fairly consistently heavier than
other days?
Yes, sir.
And what days are those?
Um, Fridays, Saturdays, Sundays, and Mondays; and
then sometimes the middle of the week, Wednesday.
All right. Now in your deposition you ranked those for
me. Can you rank those for me?
Um, Sunday is one, Friday is two, Saturday and Sunday
would be probably tied for third, and then Wednesday
could be tied for third, too; just depends.
[p. 385]
Q
I thought you told me Sunday was one.
>
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12a
Sunday was number one, yes, sir. That’s what I said,
sir.
All right. And Friday is two?
Yes, sir.
Now what’s tied with Saturday?
Saturday, Monday, and Wednesday can all tie.
Saturday, Sunday, and Monday are about the same?
No, Saturday, Monday, and Wednesday, sir.
Okay. I’m sorry. When you say -- when you rank them
one, two, three, and whatever, are you saying that
Sunday, based upon your experience, is the busiest day?
Yes, sir.
And Friday is the next busiest day?
Yes, sir.
And then Monday, Saturday, and Wednesday, they tend
to be, give or take changes, I suppose, the next busiest
days?
Yes. sir.
All right. And then I suppose the remaining days of the
week, are they about the same or are there certain days
that are the least -- is there a last on the list?
[p. 386]
They can all be kind of busy, but they’re not too bad.
All right. Do you know why Sunday tends to be the
busiest day?
A
Q
13a
Well, normally everybody is coming back from either
going to Vegas or everybody is coming back from their
trip. If they don’t have to be to work Monday, then
they’ll probably come in on Monday. Sunday we’re
swamped.
Is that true all day long or does it start at a certain time
on Sunday, based upon your experience?
It will normally start at about anywhere from midnight to
2:00 or 3:00, or sometimes even 1:00 o’clock in the
morning and the traffic starts.
Would the graveyard shift on Sunday then tend to be a
heavy. shift?
Yes, sir.
A person -- how many people work that graveyard shift
normally, let’s say in November?
In November? Are you talking formerly or presently?
Let’s take 1982.
1982, there would be in November, um, three people.
Three people. And would those three people [p. 387]
generally be having to move pretty quick in order to
process the cars through?
Yes, sir.
All right. And then it continues on up until
approximately when on Sunday?
Well, like I said, sir, it will start sometimes anywhere
from 12:00 to 1:00, and it will on -- sometimes it will
stay busy until almost noon Monday.
14a
Q I see. Now Friday, you indicated that was the next
busiest; is that because when that’s when people are
going?
A That’s when people are coming into the state.
Q Coming into the state?
A Coming into the state.
Q_ On Friday?
A Yes, sir. They’re coming from Las Vegas or from many
points from the Midwest to East coast they’re coming in,
but the greatest exodus is from Nevada. All the Nevada
people seem to come in on Friday.
Q Is that right?
A Yeah.
Q_ When does that start?
A That will normally start -- it starts normally like about
4:00 or 5:00 o’clock in the morning with people coming
in for work and it goes on from there.
[p. 388]
Q On Friday morning?
A Yes, sir.
Q So the person that would be on graveyard even on Friday
morning would have a fairly busy time; is that true?
A Yes, sir.
Q Now do you know why Saturday tends not to be as busy
a day as Sunday or Friday or perhaps ranking with
Monday?
oo eS ROT, REED LP a aaa ee me ae
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(2)
15a
Um, it depends. If there’s a holiday, like say if
Christmas is on Sunday or if some other holiday is on
Sunday, then most people then will rush by Saturday
because if they have to get to Los Angeles or any place
in the south, in Southern California, they would almost
have to be -- like say if it’s some type of event, even like
Super Bowl, okay, they would almost have to be in our
station by at least 1:00 o’clock or 2:00 o’clock in order
to make it to L.A. to see the Super Bowl because the
traffic is so congested in Los Angeles or in San Diego.
So it depends; Saturday can be what’s left over from
Friday or it could be pretty steady, but it’s normally
always steady; and sometimes it can be very heavy.
There are certain times of the year, as I understand it,
that are heavier than others; is that [p. 389] true?
Yes, sir.
Would that be the summertime, basically?
Summertime, and then Thanksgiving, Christmas, Easter,
spring break, Presidents’ birthdays in February, Mother’s
Day, Father’s Day, New Year’s, Memorial Day, Labor
Day weekend when it’s Jerry Lewis Telethon in Vegas or
in California, depending on where they schedule it, Super
Bowl Sunday -- just depends; playoffs, World Series, just
depends.
Let’s take Thanksgiving and Christmastime.
Yes, sir.
Based upon your experience, does the station manager
bring in seasonal people, college students, to assist
during those times?
Um, yes, sir.
>
> £0
16a
So you have more help during those times where you
bring in college students that perhaps are off during that
short vacation period and they work to augment the staff
that’s there, is that what happens?
Well, we have seasonals that -- during that time that were
six-month and nine-month - nine months’ employment,
different to what they are now. Before --
Let’s talk about ’82.
Okay. In ’82 there were six-month and [p. 390] nine-
month seasonals, they were called TAUs, and there were
overlapping TAUs. So for Thanksgiving you’d probably
have, depending on how many was allowed to you from
the department, we’d have maybe two, maybe three
maybe four, depending, and they would be working in
that time, but they’d work during the whole month, so,
um -- see, now they’re ATWs; they’re called “as time
worked,” so they’re only scheduled -- they’re scheduled -
a lot differently from what they were back then.
Let me ask you this, in ’82, just so that I’m sure what
you’re saying, during the Christmas recess time when
you had heavier traffic and during the Thanksgiving time
when you had heavier traffic, did you have -- whatever
you called them, but this extra help come in during those
periods of time?
They would be scheduled to work, yes, sir.
All right. So even though you had heavier traffic, you
had more help?
That would be the norm.
And that’s also true during the summertime?
Yes, sir.
17a
I'd like. to have you just tell me a few things about the
schedule. If you would turn with me to Exhibit 24, and
what I want to do is to look at your scheduling on some
of the these days and have you tell [p. 391] me if you
would, what it means. For instance, Exhibit 24, if you
will look at 4/1 to 4/30/82. Do you see that?
Yes, sir.
* * * *
[p. 393]
O >
Would you turn with me over to - it’s kind of cut off, so
it’s 9/1 --
Oh, I see, okay.
Do you see that one?
Yes, sir.
All right. Now your name appears maybe a little more
than half way down. Do you see that, number 12?
Yes, sir.
All right. It shows, for instance -- I just want to ask you
about this -- about a third of the way over, the second
time that you’re being -- the second block of time that
you appear, under Friday it shows shift three, shift three,
shift four, shift two, shift two, shift two, shift two, shift
one, shift one, and shift one. Can you tell me why during
a given block in time you wouldn’t be continually
working the same shift?
Um, because we work rotational shifts, sir. That means
that we work days, swings, graveyards. We may not
work a constant -- like say, for example, of these one,
two, three, four, five, six, seven, eight, nine -- of these
>
> £0
> £0
18a
ten days that I was scheduled to work, that doesn’t
necessarily mean I’ll work a block series of three shifts
or a block series of two shifts or a block series of one
shift. I work a rotational shift, [p. 394] so I can work a
three and then they put a four to transition you over to a
two so that you don’t come back -- it’s not so much of an
early morning. But I can work threes, twos, and ones.
What I can’t work is a three, one, two; that’s not
consistent.
Because it would be back-to-back? .
Um, exactly. And you have to have an eight-hour break.
That’s why you can’t work -- that’s why I couldn’t work
a four to a graveyard, because that’s not enough time to
rest. But I could work a two and then come back and
work a graveyard.
You do notice that Mr. Street, who’s number three on
there, he almost consistently worked the third shift.
There were some alterations, but during most of the
month he worked the third shift.
Yes, sir, but he’s a supervisor, sir.
Is that why that would be?
Well, maybe, because if you look at Mr. Whitacre,
sometime he was broken up, but it depends on what was
needed.
Well, look at the seventh one down, Mr. R-a-c-h -- and
I’m not sure of the rest.
Rachi.
Rachi, is it?
Yes, sir.
19a
[p. 395]
Q_ Now he worked the second shift curing the first --
A_ Eight days.
Q Yeah. Now whereas yours was broken up, his isn’t
broken up. Was he a supervisor?
A No, he’s a rank and file.
Q When the scheduler made up the schedule, was it pretty
much discretionary with the scheduler whether to
schedule them eight, times the same shift or to break it up
like they broke yours up?
A It just depends on how -- what’s needed.
Q Depends on what’s needed; and who decides what’s
needed?
A Whoever makes the schedule out.
Q_ And does that depend on the various requests hat come in
from the employees?
A Exactly, sir.
Q. All right. I’d like to have you look at 11/2 to 12/1/82.
A Yes, sir.
Q_ Now as I understand it, the scheduling is based to some
extent on the number of vehicles that are coming through,
when there’s heavier traffic or lighter traffic; is that true?
A Yes, sir.
[p. 396]
Q It looks to me like -- I may be in error, but it looks to me
like at that particular time with some few exceptions you
20a
had the same number of people on every day. You had
nine people on and six people off during the majority of
the time; is that true?
A_ Yes, sir.
[p. 397]
Q_Let’s take a look at March 2 to March 31, 1983. Now
you notice that during more than half you had ten people
on and either five or six people off, and in some instances
four people off during most of the time. And you come
to Saturday and Sunday you have only, as I understand,
eight people on and five people off. And then on the last
one you have, on Tuesday, you have eleven people on.
Do you know why that would be?
A It appears like for myself that I probably would have been
working had I not asked for that time off.
Q_ So they accommodated you, as I understand it, [p. 398]
because you wanted to be off?
A Yes. My name -- it has two holiday credits. That means
that I -- I can’t remember back then what I had planned,
but I must have asked for some time off to go someplace.
Q_ That was to which day now, which date?
A On Sunday and Monday.
Q 19" and 20"?
A Yes, sir.
Q_ And you’ve ranked those, at least Sunday, as the heaviest
traffic day; in that not true?
A Yes, sir.
Q_ And they wound up with eight people?
>
> 0
Yes, sir.
I want to ask you, what does it mean, for instance, on the
11"; you see Friday the 11"?
Tes, Siz.
And Saturday the 12", and it runs on through the 15"; it
shows a one and than there’s a kind of diagonal line and
a two. What does that mean?
Oh, you mean on my name?
On yours, yes.
It means that I traded. I was scheduled to work a day
shift, and I traded with with Miss Martinez for her
graveyard. I traded from the 11" to the 15"; [p. 399] I
traded with her to work those graves so that I could get
off early.
I see.
A lot of time we do that. We trade so that we can get off
on a graveyard, and that allows us to leave a day early or
get all of our stuff together for whatever reason.
That’s fairly common, isn’t it, doing things like that?
Trading, yes, sir.
* * *
22a
APPENDIX B
REPOR7TER’S TRANSCRIPT ON APPEAL
VOLUME III OF VI pp. 485-492
Elisa Martinez
Direct Examination by Mr. Boothby
[p. 485]
Q
A
Q
>
> 0
Do you recall what year it was that you became a
permanent employee at Yermo?
1982.
And do you know what month?
If I’m not mistaken, it was probably around October;
September or October.
I'd like to have you take a look at the exhibit book that’s
in front of you there, and you’ll notice that it’s tabbed; it
has tabs that indicate the various exhibit numbers. Do
you see that?
Yes.
Would you turn to Exhibit 24?
Okay.
* * kK
[p. 486]
Q
All right. I’d like to have you take a look, if you would,
at the August 1 to August 31, *82 schedule — I’m sorry,
I’ve got the wrong one; it’s the next one, 9/1. Do you
see that?
Yes.
Ee
.
>
A
Q
23a
All right. Now, it looks to me, and correct me [p.487] if
I’m wrong, that from the 17” of that month -- that would
be the 17” of September -- through the end of that month,
you were on the third shift; is that what that indicates?
You’re asking me on the 17" ?
Well, from the 17" on to the end of the month. You
either were working on the third shift or not working at
all; is that correct?
4:00 to midnight, the third shift.
Yes, I believe that would be the 4:00 to midnight.
* * * *
[p.488]
Q
BY MR. BOOTHBY: Is that what that indicates, you
were working the third -- or at least scheduled to work
the third shift?
Yes.
All right. Would you take a look at the next month, 10/1
to 11/1/82? And looking at your name, it appears to me
that you were scheduled to work, except for the time that
you were off, the third shift at least during most of that
month up to -- and I can’t really tell -- the last three or
four days of that month; would that be correct?
That’s what it looks like.
All right. And then on the next month, 11/2 to 12 --11/2
to 12/1/82, it appears -- I’m sorry, let’s take that first two
months. Was there some reason that you were aware of
that you were scheduled to work the third shift for that
long a period of time?
24a
[p. 489]
A I don’t understand your question.
Q_ Well, instead of rotating to different shifts, it appears to
me that during the period of time that I indicated,
particularly 10/1 to 11/28, you were working
continuously the same shift.
You mean swings?
No, the third shift as I understand.
Okay.
And my question, don’t you normally rotate shifts there
at Yermo?
A Yes.
Q Can you tell me why there wasn’t more rotation during
that month as far as your schedule was concerned
A No.
Q Now if you’ll notice over on 11/2, from the 23" to the
end of the month you were again scheduled on the third
shift, were you not?
A Yes.
Q_ And then if you’ll turn the page to 12/2 to 12/31. It
appears to me that from the 2™ through the 6" you were
again scheduled to work the third shift; is that true?
A Fae:
Q And then that same month from the 24" through the 31*
you were again scheduled to work the third [p. 490] shift;
is that true?
A Yes.
O > A ~P
—————
O +> OD YP
25a
My only question, it looks to me like during the majority
of that period of time that you were working the third
shift without rotating, and I’m wondering if there’s an
explanation for that. Do you know why that was?
Not offhand right now.
Well, let me have you look at 1/1/83 to 1/31/83. And it
appears to me that starting with the 24” of that month you
were scheduled to work on the third shift to the end of
the month; is that the way --
Yes.
-- it appears?
Yes.
And then if you’ll turn the page to 2/1, it appears to me
that during at least half of the month you were again
scheduled to work the third shift continuously, is that
true?
Yes.
Now do you know why it is that you continued to work
the same shift without rotating?
** * *
[p.491]
THE COURT: Maybe you don’t understand the question.
Do you understand what he’s asking you?
THE WITNESS: He’s asking me why was I working swings,
4:00 to midnights, more times than, I guess, than the day shift
or graveyard.
THE COURT: He said it’s his understanding that
employees were kind of rotated, they worked shifts --
26a
[p. 492]
THE WITNESS: There are no set days of rotation. We’re not
-- you know, we’re not required to work five days of swings
or five days of graveyards or five days -- you know, it can
change. I could work nine days of swings or I can work nine
days of graveyards. There’s no set patterns of how many
shifts you’re going to work in that month.
THE COURT: What determines how you’re going to rotate
or when you’re going to rotate?
THE WITNESS: The schedulemaker.
THE COURT: The schedulemaker?
THE WITNESS: Yes.
* * * *
27a
APPENDIX C
REPORTER’S TRANSCRIPT ON APPEAL
VOLUME IV OF VI pp. 863-878
Mimi Khan
Direct Examination by Mr. Boothby
* * *K *
[p. 863]
} Q_Let’s assume that this case did not involve an individual
who applied for a position --
A Okay.
; Q_ -- and was discoverd [sic] that because of his religious
beliefs he couldn’t work. Let’s assume, for instance,
Mr. Boateng had been employed there for, ten years.
A Okay.
; Q_ And he became converted to the Advertist faith, Jewish
belief, or became converted to Islam or some other
religion and couldn’t work on a certain day. Are you
i saying that then that would require him to be terminated,
is that what would happen?
A No. Again, as we discussed earlier, let’s say that he had
been employed for ten years and then took on whatever
religious faith and those requirements did not allow him
to be able to work out his schedule within the [p. 864]
plant quarantine inspector series. He could compete for
other examinations within the department
A plant quarantine inspector is only one class out of 350
classes out of 1700 positions. There’s only 100 of these
positions. So he could compete for other classifications,
28a
he could transfer into other classifications if they are
within 10 percent of his salary level.
There are a variety of things that you can do for
permanent employees that are on board that -- whose
situation may change, whereas when you’re looking at a
class specification and setting up the requirements, it’s
something that you can’t work into the concept. You
can’t say that it’s okay to schedule people around their
religious holidays or around their schoo!s or around their
-- if they don’t -- if they prefer not to work on their
holidays, whatever the situation is, there’s no way that
you can make an absolute determination along that line,
and that’s what the class specification is all about.
We have to be able as management to schedule people,
and it is so hard to schedule, you know, between rotating
schedules because you don’t want the same person there
at the station on an on-going basis because truckers and
others get to know you and you don’t have [p. 865] the
objectivity and you could end up with, you know, bribes
being taken and letting certain trucks go, et cetera.
So for those reasons we have to switch or rotate the
schedules, and so you can’t work in that this person will
only be our 9:00 to 5:00, this person will never work on
Saturdays, and this person will never work on Sundays.
It would be very, very difficult from a management
perspective to do that.
Q_ All right. Your response was he could perhaps take
another examination, move into another position. Might
it also be something that you might try to see whether by
trading with other employees it worked out? Wouldn’t
that be a possibility?
A That has been done, yes.
> O - A
29a
It has been done?
Yes.
When was that done?
Oh, I believe there was one employee, and I don’t know
the details on it, but who after working there for a while
was able -- I don’t know if he was a Seventh Day
Adventist, I’m not sure, but because of his religious
beliefs in that station they were able to temporarily
accommodate him before he retired. He’d been there for
many years. I don’t know the details, [p. 866] but I
know that there was one situation, and that situation was
brought to my attention by Howard Ingham, the
individual you’ve discussed. But given again, a
one-time, individual situation versus, you know,
changing the requirements and having to do that on an
on-going basis for everyone would make it very
impossible.
You say it would make it impossible, but it at least it
works on a temporary basis?
Yes, and there are two different things here. On a
temporary basis there’s a lot more flexibility than on a
permanent, on-going basis.
* * K
[p. 873]
Q
All right. Let me ask it in another fashion. You indicated,
as I understand your testimony, that if an individual came
in in - good faith hoping to have a position - there was a
possibility for a transfer to another position -- and in fact
you gave me a concrete illustration of a person who had
"a
30a
been there for ten years and became a member of a
certain faith, he could transfer; is that true?
A Yes.
Q. All right. You also indicated that there could be a
window of time to see whether he could continue to stay;
is that true?
A Um-hmm.
Q Is that true?
A Yes.
Q_ Allright. Now assuming that Mr. Boateng came there in
good faith wanting to be an inspector and it was
discovered during the first three months that it just didn’t
work out, and it not only didn’t work out in Yermo but
it wouldn’t work out anywhere else after investigation,
was there a mechanism by which he could [p. 874] look
at another place to transfer to?
A Mr. Boateng could compete for any of the examinations
that were being given by the department. Part of the
problem that you have with the civil service system is if
-- and the plant quarantine inspector exam is a good
example of this -- we test very frequently, as you would
think, because of the hours. Nobody wants to work the
hours and have a rotating shift. So being able to score
and get on a list for the plant quarantine inspector is a lot
easier than if you were to compete for an agricultural
biologist position.
Q_ Well, but, I mean --
A So if - so for him to not have had eligibility and to come
in and say “well, I applied for this but because of my
religious beliefs I don’t want to take this job, I want that
~O
3la
job over there” is unreasonable from my perspective
because he has not had an opportunity to compete with all
those other individuals. Those individuals have been to
an examination, are on the list, and he needs to compete
there, which he would have an opportunity to do.
Let me come back to the man who had been there for ten
years.
Okay.
He would still have to take an examination for [p. 875]
whatever position.
Yes.
-- isn’t that true?
Yes, unless it’s within 10 percent of -- there is a clause
that says you can transfer to a position that’s within 10
percent of your salary and responsibility level if you have
permanent status.
How long do you have to have permanent status before
you can do that?
Permanent status is after you’ve finished your
probationary period.
So if he had completed one year, he could have moved on
without taking an examination?
If the class is within 10 percent and the same
responsibility level. He couldn’t take a supervisor job
within 10 percent of his series, but he could go to another
class if the supervisor in the other unit who does the
interviews and selection secretary selected him.
Can you give me illustration of one that would be within
10 percent of the position of quarantine inspector?
32a
A I believe the agricultural biologist is. We have had plant
quarantine inspectors transfer into that classification, and
as I mentioned before, the plant [p. 876] quarantine
inspector isn’t the popular job to have to stay in for a
long duration, so we have a lot of competition as far as
inspectors wanting to go into the biologist field.
Q How about grain and commodity inspector?
A Grain and commodity inspector is either at the same level
or -- I think it’s below. It may be below a plant
quarantine inspector, but I -- I can’t remember all the
salaries off the top.
Q_ So once the person has been there for a year, they can
transfer to that?
A Yes.
Q Is that a 9:00 to 5:00?
A _ I believe so.
Q_ Soif Mr. Boateng -- he could have transferred to another
position within the Department of Agriculture, perhaps
one of these positions that we’ve talked about, without
taking an examination?
A If he was selected, yes.
* * * *
[p. 877]
Q_ Now seasonals
A Yes.
Q_ -- you said there’s not much problem, right?
A_ Yes, that’s true.
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33a
Could Mr. Boateng have been at least given a [p. 878]
position -- instead of not given any position at all, could
he have been given a position as a seasonal for nine
months?
That’s possible, but again, I don’t know if they had any
vacancies, what the schedule of that seasonal employee
would have been, and so on, so I can’t say.
Well, if there had been vacancies --
Let me tell you -- put it from this perspective, a seasonal
does not have to compete in an examination, and so if
there are vacancies there’s -- it’s much easy easier to
accommodate.
* * * *
[p.
>
>
34a
APPENDIX D
REPORTER’S TRANSCRIPT ON APPEAL
VOLUME V OF VI pp. 1048-1064; 1085-1092
Howard Ingham
Cross Examination by Mr. Boothby
* *
1048}
BY MR. BOOTHBY: Now if I understood your prior
testimony correctly, and let me see if I can recall your
testimony, I believe you indicated that you treated, as far
as scheduling purposes, your permanent employees and
your seasonal employees the same; is that correct?
Yes.
And you expected your seasonal employees, so [1049]
long as they were employed, to be available for work
seven days a week, 24 hours a day?
Yes.
So there was no distinction just simply because they
were seasonal employees; is that correct?
They were all basically under the same policy, same
work conditions.
Now have you ever heard the name of Renee Finney or
Renee Hopgood?
I don’t recall -- I didn’t recall her before, let’s say, the
last two, three weeks.
So if she was a seasonal employee, that policy would
have applied to her, too; is that true?
35a
A Oh, yes. I retired in 1986, and I don’t know whether she
worked after that or during my tenure.
Q I think her testimony was that she worked -- I think it
was ’80, 81, and 82.
THE COURT: That’s correct.
MR. GETZ: That’s correct.
Q BY MR. BOOTHBY: That would have been during
your tenure.
A All right. Yes.
Q Do you recall receiving any kind of a telephone call
either directly or through Mr. Gray about a person
needing to be off on their Sabbath or from [p. 1050]
sundown Friday to sundown Saturday attributing it to a
seasonal employee?
>
I don’t recai! one.
Q It would have been policy, would it not, for the border
inspection manager to have called Mr. Gray in the event
there was a request for a person to be off, even a sea-
sonal, on a regular basis?
It would have been policy that he call that, yes.
And would that normally have come in to Mr. Gray?
O >
A Or whoever was the border supervisor at that time. In
1981 I’m very doubtful that Mr. Gray was the border
supervisor.
That would have been who, then, in 81?
A It’s just too much turnover of personnel.
Q All right. If you had gotten a telephone call saying that a
seasonal had applied for a position as a seasonal em-
ployee but could not work from sundown Friday to
f—O
OO >
[p.
2)
36a
sundown Saturday, would it have been in accordance
with your policy something that you would have said
you could not have permitted?
Yes.
So you would have turned that down?
Yes, based on the requirement in the job [p. 1051]
description.
* * K
1053]
Let me ask it in this fashion. Would it be -- based upon
your understanding of scheduling, would it be possible
for a three-month period for a person to be scheduled on
a basis where they would not be scheduled to work from
sundown Friday to sundown Saturday?
Only if the man making the schedule was not following
policy.
Not following what policy?
The unit or bureau policy that all employees rotate, do
not show any preferences on shifts.
Well, you could rotate without being scheduled to work
on a Friday: night or Saturday, could you not?
I believe it was explained that -- maybe not -- part of the
policy was in the interest of fairness and elimination of
complaints of employees that they all work approximate-
ly the same number of weekends, which a [p. 1054]
weekend includes Saturday and Sunday, the same
number of holidays, the same number of graveyard
shifts, evening, and day shifts as possible. And a vari-
ance of maybe five or so, say five or six in a year’s
time, would be acceptable, but they were taken into
consideration for the following year. And that’s -- part
37a
of my policy was always to have the supervisor -- the
border supervisor check the work schedules to see what
you’re talking about didn’t exist. And I would say from
my viewpoint, had it been drawn to my attention,
somebody was negligent in their duty -- or the man at
the station was negligent in his.
Okay. Now you mentioned about policy requiring that
everybody get the same number of graveyard shifts.
Now one could schedule a person with an equal number of
graveyard shifts and still permit that person to be off
fro sundown Friday to sundown Saturday, could they
not?
Yes.
All right. So that’s not the problem, is it? Let talk about
the holidays. One could schedule a person so that they
had an equal number of holidays off and still schedule
that person to be off from sundown Friday to sundown
Saturday, couldn’t they?
The problem is accommodating this person [p. 1055]
having that particular day or two days a week off, not
the holiday part of it or the graveyard. It’s the other
employees saying ‘‘he is getting favoritism that I am not
getting.’ And to avoid complaints as we had at Truck-
ee, the assistant director at that time said ‘‘thou shalt see
that this special accommodation does not occur.’’
Yes, sir, and you put your finger right on the problem.
Isn’t it favoritism, that is what you were concerned
with, wasn’t it?
Special treatment.
Special treatment. That was the real problem you were
concerned about when you turned it down -- when you
turned down Mr. Boateng?
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38a
Not that he was a Seventh Day Adventist.
No, I didn’t say that; special treatment?
Um-hmm.
Okay. Now the illustration that you gave, and you’ve
given it a few minutes ago and you gave it in response
to Mr. Getz’s question to you, was what happened in
Truckee; isn’t that true?
To me that is data in my computer that I react to sub-
consciously and my --
Now --
-- my job was problem avoidance.
Problem avoidance. Truckee presented a [p. 1056]
problem for you; is that what you’re saying?
The situation at Truckee.
And Mr. Boateng presented a potential problem for you;
is that what you’re saying?
A very similar case. And at the time of Truckee, I had
definite orders from administration ‘‘thou shalt not do
this.’’
Thou shall not do what?
Accommodate, give special treatment for any reason.
And when you say you had special orders, where did
these special orders come from?
Mr. Allen B. Lemmon, assistant director of Plant Indus-
try, who is now deceased.
Now is it -- as I understand, you were in some supervi-
sory responsibility in Sacramento when this problem in
Truckee arose; is that correct?
O > 0 ~}
39a
I was -- had the same position as Mr. Boateng -- as what
his situation occurred.
No, let me rephrase it because I think you misubder-
stood my question. When the question in Truckee arose
it involved a Mr. Riseden, did it not?
Risden.
Risden. What was your position with the department at
that time?
. 1057]
Program supervisor of border stations.
All right. So you were in a supervisory capacity, and
my understanding was if you had known that the supervi-
sor was accommodating or permitting Mr. Risden to be
off, you would not have permitted that.
This is correct.
Okay. But it did go on for quite a while, didn’t it?
Oh, yes.
If there was all that much problem, why wouldn’t you
have heard about it?
If it ain’t broke, don’t fix it. But it became broke when
five others wanted the same treatment.
I think you testified this was back in the 1970’s; is that
correct, the problem in Truckee?
Yes.
Wasn’t it back much earlier than that? Wasn’t it between
1961 and 1964?
I don’t believe so, not now. I may have said that in
deposition.
—
40a
What do you remember? In fact, you did say it was
during the period of ’61 through °64?
Pardon?
Do you remember now that in your --
You mean in deposition?
. 1058]
Yes.
I don’t recall what I said at that time. I was trying to
give you factual answers as it came to me then.
Well, the reason I’m asking you this question, and it
becomes somewhat critical because we had some testi-
mony from Mr. Sandridge, I believe it was, let me see
-- yes, Mr. Sandridge, who indicated that he was in
Truckee during the period of time from 1959 to 1963
and Mr. Risden was getting time off then by swapping
with other employees. Are you saying that this went on
from whatever time that was, sometime between °59 and
63 up until the Seventies without anybody having a
problem?
We're talking about two different situations.
Okay.
An employee was allowed to voluntarily trade with his
immediate supervisor’s knowledge, and the other one
you’re saying it was the supervision’s responsibility to
provide Mr. Boateng his 24-hour period each and every
week. There’s a great difference between the employee
soliciting it and if he couldn’t find a trade, work his
shift.
Well, but my understanding of your testimony earlier
today was that if you found out people were going to
trade on an on-going basis you wouldn’t permit [p.
>
> O & A PP A
> 0
4la
1059] that, and apparently this was done for ten years
according to your testimony just now. It’s okay if it’s
by voluntary trade; is that your testimony now?
It didn’t have my official approval.
Well, it may not have had your approval, but my ques-
tion is it’s okay as long as it’s done voluntarily; is that
what your testimony is today?
No, no, I’m just saying there’s a difference between an
employee asking a fellow employee to voluntarily trade
or insisting that management do the trading involuntarily
with other employees.
Okay. And --
And the willingness of the employee to work if a fellow
employee refused or didn’t care to trade.
All right. What is the difference?
What’s the difference?
Yes, sir.
The shift was covered.
It would be covered in both situations, would it not?
With the exception that you’re disaccommodating
whoever you mandatorily require trading with him.
We’re getting back now to the issue of fairness?
Right.
. 1060]
All right. But as long as people are willing to do it,
then even though you still wouldn’t have permitted it,
it’s different; is that what you’re saying?
It was being done at a level that I was unaware of.
Well, if --
42a
And I did not approve of on-going trading --
Why was that?
-- indefinitely.
Why was that?
THE COURT: By on-going, you mean indefinitely, long-
term --
THE WITNESS: Yeah.
THE COURT: -- rather than one or two days?
THE WITNESS: With one or two days, but every week
trading or trading whenever he did not have -- was sched-
uled that time off.
Q BY MR. BOOTHBY: Well, why would you have been
opposed to it if was for religious reasons? Apparently it
didn’t create any problem for ten years.
My lack of knowledge.
Q I understand that you wouldn’t permit it. Now I’m
getting down -- I’m trying to find out what the -- what
would have mattered, assuming that you didn’t care, [p.
1061] how would it have impacted on the public busi-
ness.
O > A P
>
A The impact comes only when the others at the station
create a problem, and I am the one that operated with
problem avoidance in mind.
Q_ Yes, sir. Except we do have a problem today, don’t we?
A Yes.
Q All right. Now the problem in Truckee is a different
problem than we have with Mr. Boateng; isn’t that true?
A Idon’t see it as a different one.
>
~ > OOD 0
>
43a
Well, the problem in Truckee, as I understand your
testimony, is that Mr. Risden wanted to be off on
Sunday morning so that he could go and take care of his
lay ministerial responsibilities at church on Sunday
morning, and at some point in time there were some
Catholic ladies that said ‘‘look, I want to go to church
on Sunday morning,”’ and all of a sudden it became a
hardship when six people wanted to be off at the same
time for religious reasons; isn’t that what happened
there?
That’s exactly it, only it was men, not ladies.
All right. Whatever. But the problem was that there
was a hardship because a lot of people wanted [p. 1062]
off at the same time. It was all for the same reasons,
for religious reasons; that’s what happened in Truckee?
The reasons had no bearing. It was just six people
wanting time off for any reason at the same time.
Whatever, but that’s what caused the hardship, right?
Yes.
All right.
Made an inability to cover Sunday morning shifts at
Truckee.
Did you have any other individual at the Yermo station
that you were aware of that was seeking to be off on a
regular basis from sundown Friday to sundown Satur-
day?
No, not that I was aware of.
So what you’re really saying is that based upon what
happened in Truckee you were speculating that some-
time in the future there might be other people that would
44a
want to be off at the same time, creating a problem; is
that basically what you’re saying?
A I’m not an expert in the field of statistics, but the theory
of probability tells me yes -- or I think a more recent
statement would be Murphy’s law; if it can happen, it
will.
Q Okay. And you were avoiding Murphy’s Law?
[p. 1063]
Attempting to avoid it.
>
Q Now there was testimony by a person that did the
scheduling or has been doing some scheduling down at
Yermo, a person by the name of -- I think her name is
Lozano. Are you familiar with an employee by that
name?
A_ I met her in the hall here the other day, and I had met
her previously but basically did not know the lady.
Q_ All right. Now she gave some testimony that as I under-
stood, and I think was supplemented by other testimony,
that an individual can get off for certain reasons if they
put their request in like by the 29th of the month prior to
the 15th when the schedule is completed for the follow-
ing month; do you follow me?
>
Yes, I follow you.
Is that basically what the policy was back in 1982?
A Yes. I don’t recall that it had to be in writing, but when
the man made up the schedule if you were having a
family reunion, a birthday, whatever, a one-time occur-
rence, this -- if possible, without disrupting the whole
work schedule -- would take place.
~—
~—
So that was in place, you could --
A That was available to all employees.
.
>
[p.
»- 7) © >
>
45a
So people could get off not only by trades in [p. 1064]
1982, but they could also get off by a special request
made to the supervisor if it was in by a certain time?
On a one-time, individual basis.
One-time basis. Now she testified that she has done that
for people who were going to school. She attempted to
schedule them off if she got the request in. Now you’re
saying that’s contrary to policy?
I don’t know what her policy is after I retired. I’m not
aware of her doing that when I was tenure.
* * * *
1085]
Would you look at Exhibit No. 25. If you’ll notice,
Exhibit 25 starts off with some monthly schedules from
Topaz, and then if you’ll turn a few pages it starts with
the Meyers station.
I’m at Meyers.
All right. And I think the first month that’s indicated in
here is one that starts 6/1 to 6/30; do you see that?
Yes.
Do you see Mr. Krause, K-r-a-u-s-e?
Yes.
You'll notice at the end of the month starting with the
27th he is given shift one; do you see that?
Yes.
And shift, one according to the upper left-hand corner,
would be 11:00 p.m. to 7:00 a.m.; is that correct?
That’s correct.
Is that what you would call a graveyard shift?
>
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>
Yes.
You notice that he works four days in June the grave-
yard shift; do you notice that?
All right.
Would you turn over to the next page, 7/1/83 to 8/1/83.
You notice that Mr. Krause starts off on the [p. 1086]
first of that month working the graveyard shift and
works until the 4th, and he works four days on the
second shift. He’s apparently off -- is that what that
indicates, he was off from the 9th through the 14th?
Are you on a different 7/1 than I am? We’re still with
Mr. Harms?
No, I’m talking about Mr. Krause.
Excuse me, Krause. All right. Yes, I follow you now.
Rephrase, please.
Yes. He again is working the first shift or the graveyard
shift in Meyers starting with the Ist of July and works
until the 4th of July on the graveyard shift?
Yes.
Then he goes to the second shift, 7:00 a.m. to 3:00
p.m., for four days?
Yes.
Then he’s off from the 9th to the 14th?
Yes.
He’s back on the graveyard shift on the 17th; is that
correct?
Yes.
And he worked the graveyard shift until the 27th; is that
what it shows?
are
[p.
O - AD Pp
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47a
It’s what it shows.
*x Kk KX *
1088]
Let me have you look at another one here, if you would,
Mr. Frank. You notice Mr. Frank on the July schedule?
I’m there.
He seems to work the third shift, 3:00 p.m. to 11:00
p.m., the whole month of July; do you see that?
Yes.
That wasn’t consistent with your policy, was it?
No.
You notice here R.A. Jone, J-o-n-e, during most of that
month he worked the second shift, didn’t he?
July, he did, yes.
So all the stations didn’t really rotate on a monthly
basis? I mean, within the month they didn’t always
rotate all their employees, did they?
THE COURT: I’m sorry, that exhibit number again was
what?
MR. BOOTHBY: 26, your Honor.
THE COURT: 26.
Q
A
BY MR. BOOTHBY: All of the employees within each
border station didn’t rotate every month, did they?
This is very obvious, and you also asked -- or I told you
that Mr. Mitchell had problems at this time, [p. 1089]
and my recollection is coming that this was one of the
reasons.
OO }
48a
Okay. What problems, other than Mr. Miller having
problems? I assume that’s because he didn’t follow your
orders; is that --
Follow the instructions.
Follow your instructions?
Not mine, the instructions from the operating guide at
that time.
Well, I thought we covered that before the break that
there wasn’t anything in the operating instructions con-
cerning rotating within a month.
There are not in those that you showed me. These were
revised 1990.
Let me ask you about -- not about Mr. Miller, but when
they weren’t rotating there at that station, Meyers, what
problem arose there other than the fact that you had
problems with Mr. Miller?
The U.S. Highway 50 is not a commercial truck road,
and I have to honestly say -- I could not say there would
be a high probability of any collusion among employees
and truckdrivers.
Did you ever give any consideration to moving Mr.
Boateng to a station like the Meyers station where
maybe there wasn’t as much of a need to do the type of
[p. 1090] rotation that you indicated was necessary?
Because this went on doesn’t mean that I felt that way
about it.
I know how you might have felt because you had those
directives, but I’m talking about a practical solution to a
problem. If there wasn’t a real problem with collusion,
did you give any consideration to moving Mr. Boateng
there where it might be a bit easier to work?
>
O >}
>
49a
When you run an organization, especially a law en-
forcement-type agency, lack of uniformity is the first
premise for problem.
* * *K *
I want to ask you a little bit about the traffic situation.
You indicated the traffic was heaviest on the weekends,
and I think you said Saturday and Sunday; is that cor-
rect?
in most cases, yes, and holidays.
When you say ‘‘most cases,’’ what do you mean by
that?
There’s always exceptions to the rule. [p. 1091] Air-
plane show at the field there, and Reno attracts thou-
sands of people, and if that happens during the week,
that generated the traffic. Or the same thing could be
true in Las Vegas or Phoenix, Arizona.
Isn’t it true that there are some stations where there
really isn’t any increase on the weekend as compared to
the rest of the week?
I would say no, when you say ‘‘any increase,”’
All right.
Maybe relatively insignificant compared to the major,
but I can’t honestly say there would be no increase.
All right. But the increase would not be a substantial
factor; could we say it that way?
Very possible, yes.
All right. Well, in looking at a means to accommodate
Mr. Boateng, wouldnt you want to look at a station
where not only -- where you don’t have the problem of
[p.
50a
commercial traffic, but perhaps looking at a station
where there isn’t this major increase on the weekends?
It reduces the number of employees that the man has
available to trade, it increases the possibility of those
that are available of being either on vacation, sick or not
wanting to trade for family reasons.
1092]
Let’s talk about that. Now there has been testimony
about polling the people at Yermo. Did you ever think
about polling anybody at maybe Meyers, where they
already accommodated somebody? Did you ever think
about polling those people?
No, I didn’t have the problem at Meyers.
But if you moved Mr. Boateng to another place where it
might be easier to accommodate, then you might want to
know what those employees thought about trading with
Mr. Boateng; wouldn’t that be an important question?
In retrospect, I agree with you. At the time I was
overworked, I was opening up the stations, had capital
outlay problems, we were hiring 60-some people,
spreading Our permanent inspectors out as thin as we
could to train the new people. I could kind of look back
and say ‘“‘hey, Howard I’m -- I marvel that you took this
amount time.’’ But I did feel it was important, so you
could yes, say what you’re saying, why didn’t I.
* * K *
at Skt AE Finca
Sla
APPENDIX E
REPORTER’S TRANSCRIPT ON APPEAL
VOLUME V OF VI pp. 1135-1147, 1168-1176
Martina Haleamau
Direct Examination by Mr. Getz
[p. 1135]
Q
* * * *
It mentions -- and I’m looking at Exhibit M, the first chart
-- it mentions M-1's period is 5/1 through 5/31, Yermo.
Can you explain what that is, what that references to?
[p. 1136]
A That is for the month of May, May 1* to May 31%.
* *k * *
Q So all three of these refer to the same period of time and
the same border stations?
A Yes.
** *K *
[p. 1140]
Q_ Now this schedule was -- this, you say, is 5/1 to 5/31; what
year was that?
A We based the schedule on 1982.
Q So if one were to look at the 1982 schedule for Yermo, you
would expect to see that schedule in existence with the
exception that there would be names [p. 1141] under plant
quarantine inspector, station supervisor, et cetera?
Yes.
52a
THE COURT: I’msorry, this Exhibit M, as well as N and O,
are intended to speak as of 1982?
MR. GETZ: That’s correct.
THE COURT: And the date that -- the witness said she
believed the charts were made in 1985. So does that mean that
she went back and made them in 1985 but used data from
1982?
MR. GETZ: Absolutely correct, your Honor. That’s the
next area, in fact. I'll refer the Court and witness, if you look in
your book to Exhibit 24.
THE COURT: _ I thought you anticipated an objection from
Mr. Boothby on the grounds that you were using data that
existed for 1985 and ’86 when we were dealing with 1982.
MR. GETZ: I misspoke. What I meant to say was that this
examination was performed -- or inspection or whatever you
want to call it -- was performed by Ms. Haleamau in 1985 or
86 and not 1982.
THE COURT: _ So there might be an objection.
MR. BOOTHBY: Well, I’m just -- I’m really confused. Now if
I can -- I don’t want to interrupt anything, but I’m looking at 24.
Exhibit No. 24, 5/1 to [p. 1142] 5/31/82, and it seems to me that
this does not match the chart. I’m confused.
For instance, down at the bottom it shows on my chart,
numbers on duty on the Ist, nine, and five off. That shows ten
on and five off. The next one shows nine on and five off, and
there it shows -- I’m having problems, your Honor.
THE WITNESS: Yes, you’re right. According to what is in this
book, it’s different from what is shown on the chart there.
When we made this, I had taken the 19 -- the 5/31. 1982
schedule and basically kept it the same. Now you have to
excuse me because this is what, seven or eight years ago that
SAD Hee > :
2
4
3
:
3
}
i
53a
we did this, and some of the little details now are forgotten.
But we tried to keep it exactly the same. In some instances we
took the liberty to change -- for example, some of the vacation
days, we took the liberty to change it. We tried to show that
there were -- I tried to show that there were as many people
working as possible.
MR. BOOTHBY: But you didn’t, though, did you? Weren’t
there 16 people listed on here?
THE WITNESS: One is a seasonal. We’re not showing the
seasonal there.
MR. BOOTHBY: Why not, if it was for May?
THE WITNESS: We were talking about permanent [p. 1143]
employees and not seasonal employees.
* * * *
[p. 1144]
THE COURT: _ [let you break in and ask some questions so
you understood what she’s doing, but you can’t go back and
forth. Now I want to find out what this is about, and then the
whole thing may go out if you believe that it should and if I
agree with you. [p. 1145] It’s just that simple. But I don’t
understand it yet.
Now I want Mr. Getz to develop, if you will please, so that
I understand why there are changes made on Exhibits M, N,
and O from what the original counterparts were that were made
out at the time and, if so, why changes were made.
MR. GETZ: That’s exactly what I was going to bring out, you
Honor. I appreciate that.
Q Ms. Haleamau, the chart that you prepared was for
purposes of illustrating certain issues; is that correct?
A Yes.
54a
Q_ Now it was based on information from Yermo in 1982?
Yes.
>
Q You’ve already testified there were certain changes you
made. Could you explain why those changes were made?
A Ye.
Q Okay. Would you please?
A Oh, explain why the changes were made, yes.
THE COURT: First of all, what the changes are and why
they were made.
THE WITNESS: Okay. In doing those illustrations we want to
show that all the inspectors [p. 1146] were working. I also
want to show that we were trying to equalize -- always equalize
the numbers of day shift, swing shift, and graveyard shifts
would be approximately the same for everyone. I was also
trying to demonstrate that every employee was able to have at
least four days off in a row once during the month.
THE COURT: NowI’m lost. I assumed that exhibit -- I’m
just working with M; that’s enough right now. Exhibit M
purports to show what actually happened in 1982; apparently
that isn’t true.
MR. GETZ: No, I don’t think it was represented as that.
| think what was represented, it was based on information from
1982. There’s a distinction. The distinction is for purposes of
illustrating what happens when a person has to be
accommodated. What Ms. Haieamau did with this exhibit was
base it on actual 1982 information to make it, you know, not
entirely hypothetical.
THE COURT: What do you mean “base it on 1982
information”?
55a
MR. GETZ: Meaning, you Honor, that she picked the May
1982 Yermo schedule as the model, but she did not -- for
purposes of illustration she did not follow each and every entry
in the May 1982.
THE COURT: _ But then what’s the purpose of the [p. 1147]
exhibit if it doesn’t follow what happened?
MR. GETZ: Your Honor, the purpose of the exhibit is to
show as a matter of scheduling these are the goals of the
department.
es:
Cross Examination by Mr. Boothby
[p. 1168]
Q_ 24, I’m sorry. Do you find Exhibit 24?
A Do you want me to look at it from 1982?
Q_ Well, let’s just start with the very first month, January.
A Okay.
Q Okay. Now does that show you that you always have more
people on on the weekend in January of 1982?
A You’re going to have to give me a little time. I haven’t
- seen these in a long time.
Q Sure. While you’re doing that, would you look at -- let’s
take the first six months, and look at those.
Now what I’m doing is looking at Saturdays and Sundays?
Would you compare those with the other days?
Pardon me?
OO - AD Pp
You’re going to have to compare that with the other days.
56a
[p. 1169]
A Yes, but the focus is on Saturday. Okay.
Q Does it look to you like Yermo during -- what did you look
at, the first six months.
A Yes.
Q Did it look like they had more people assigned to work on
Saturday and Sunday as they did the rest of the week?
A In some cases yes, and some cases no.
, Q In fact, in some cases there were less people during the
weekend: isn’t that true?
On one of the other schedules, yes.
Q_ Atleast -- at Yermo, at least during that period of time, it
didn’t follow your pattern, did it?
A Not on these schedules.
Q Did you look -- Didn’t you look at the 1982 kind of as a
pattern?
A_ I looked back at 1982 as a reference point, but --
Q. Did -- I’m sorry. Did it make any difference -- would
make any difference in what you did if you didn’t try to
have more people on the weekends? Would it have any
impact at all on what you came up with?
A Can you rephrase that, please?
Q_ Yes. If you didn’t try to have more people on [p. 1170] the
weekends, on Saturday and Sunday, would that have any
impact on what you were doing there on your hypothetical
chart?
A It still would have an impact.
Di mat bl i aR
57a
Q_ Well, I assume it would, but would it change what you
came up with?
A It may.
Q_ Allright. Now you did assume, did you not, that Saturday
and Sunday are the heavier days?
A Yes.
* * * *
[p. 1171]
Q_ Exhibit 26. It has Topaz and Meyers.
MR. GETZ: Excuse me, your Honor, I think that’s
Exhibit 25.
MR. BOOTHBY: I’m sorry, that’s true.
THE WITNESS: Okay.
Q BY MR. BOOTHBY: Now this has a completely different
kind of setup as far as numbers of inspectors and
supervisory people, does it not?
A Yes.
Q Did you at any point in time attempt to determine what the
impact would be accommodating an individual on a
regular basis in a place like -- let’s take Topaz to start
with.
A No.
[p. 1172]
Q_ Nowifyou’ll look with me, there’s a schedule on Meyers
also. Do you notice that?
A For June?
Yes, starting with June. Do you notice that?
OO -}
58a
Yes.
And that has a few -- at least one more permanent person
working at that station; is that correct, than in Topaz?
¥ea.
So the impact might be different there; is that true?
Pardon?
The impact might be different there at that station?
Yes.
All right. Now I want to have you look in the upper left-
hand corner. You’ll notice that there are shift numbers?
Yes.
Now they have a graveyard shift that is different than at
Yermo. It starts at 111:00 p.m. and ends 7:00 a.m.; is that
true?
Yes.
Now Mr. Boateng, if he had been at the Meyers station, he
could have worked on graveyard shift on [p.1173]
Saturday, could he not? He could have worked from
11:00 p.m. Saturday night to 7:00 a.m. Sunday morning; is
that true?
I don’t know. I don’t know when sundown is.
Well, Saturday night when his Sabbath stopped, could he
- not, at Meyers?
Yes.
And he could have worked at least second shift on Friday,
could he not, 7:00 a.m. to 300 p.m.? 3:00 p.m. would be
before sunset, would it not?
59a
Yes.
He could work every other day of the week, could he not?
Yes.
So he wouldn’t have to be off -- you wouldn’t have to
schedule him off weekend, would he?
AO & AD ~P
>
But Meyers was not a consideration.
Why not?
He didn’t request for Meyers. I mean, Yermo was the
station.
> ££
Yermo was the station because of what?
That’s where he --
That’s where he was assigned?
I’m not sure at that time if there was a vacancy at Meyers.
. 1174]
Well, do you know if anybody looked to see if there were
any other stations he could have gone to?
Ome &» A Pe A
I was not in the program at that time.
So you don’t know the answer?
No, I don’t.
So the only thing you looked at was Yermo?
For these charts, yes.
OO & DH F&A P
Well, did you look at anything other than Yermo for any
reason other than the chart for Mr. Boateng?
>
I was not in the program at that --
So the answer is --
Q
» ££
>
-- time.
The only thing you did is look at the chart on the basis of
Yermo and that’s all this was done for?
An illustration that I was involved in, yes.
Now going back to your chart then, what if Mr. Boateng
said “I’d be willing to work the graveyard shift starting at
12:00 midnight on a Sunday morning to 8:00 a.m., and I'll
be willing to work the short shift; Ill take the eight hours
off.” That’s permissible, isn’t it? You can have an eight-
hour time span when the man’s off and have him back
again, can you not?
Yeah.
What if he said “I’ll do that as often as it’s [p. 1175]
necessary”? Would that have any kind of an impact if he
would have worked so that he’d work two shifts on
Sunday? Would that have any effect on your charting the
thing out?
Scheduling of one employee impacts other employees.
The question is, would it have had a lesser impact had he
been willing to do that?
If you’re talking about for --
And I didn’t say every Sunday, I said whenever necessary.
If your talking about doing that you cannot answer that
question without really looking at it and figuring it out.
So you don’t know the answer to this question?
Not off-hand, no.
What if Mr. Boateng was willing to trade with a person
who was scheduled to work on Sunday? Did you consider
trading?
6la
Not for this, no.
All right. And that would make it easier , would it not, if
the people did it by trade?
Of course.
** *k *
62a
APPENDIX F
REPORTER’S TRANSCRIPT ON APPEAL
VOLUME VI OF VI pp. 1191-1200
Martina Haleamau
Continued Cross Examination by Mr. Boothby
[p. 1191]
BY MR. BOOTHBY: Okay. Would you turn to [p. 1192]
Exhibit No. 24 and look at the May 1/May31 schedule.
A For 1982?
Q. For 1982.
A Is this the 5.uedule that you want me to look at?
Q
Yes. Now I have a problem because my May 1, 1982
schedule seems to start with May 1 a Saturday. Did you
use a 1982 calendar when you did this?
>
I also noticed that, too
Okay.
And I must say that this was done a long time ago. Some
of the facts, I don’t recall them all.
> 0
Q_ And in fact in May of 1992, there were actually ten
Saturdays and Sundays in the pay period, were there not,
instead of nine?
A In 1982?
Right.
That’s -- yes, that’s true.
> £0
* * KK
63a
[p. 1194]
Q
Now I'd like to have you, also looking on the May 1
schedule, tell me if --
[p. 1195]
THE COURT: That’s Exhibit 24?
MR BOOTHBY: Exhibit 24.
O - A &} A PY
Can you tell me if everyone there got a four-day weekend
off?
Do you want it limited to the inspectors?
Yes. I assume that’s what you’re limiting to, are you
not?
I’ll need a few minutes.
Well, let me have you look at the third from the bottom,
number 14.
Berder?
Yes.
Okay.
Now he didn’t get a four day weekend off, did he?
He got four days off in a row.
Well, no, but you said four-day weekend; isn’t that what
you were striving for?
That’s what we strive for, but if you notice here
sometimes you don’t have a four-day weekend off in a
row.
All right. But you had actually -- on this calendar you
actually had more Saturdays and Sundays than you did on
64a
yours. You should have had an easier time having
Sundays and Sundays off four days in a row, [p. 1196]
shouldn’t you?
But, sir, again, according to the schedule -- and again if
you look at May 1982 you had two supervisors on
vacation at the beginning of the month, and you had --
How about --
-- you had someone on vacation at the latter part of the
month, and so it’s considering availability.
How about Lozano?
Maria Lozano?
Did she have a four-day weekend off?
Maria Lozano, on the first Saturday/Sunday she had a
day off, the 1* and 2™.
Was it a four-day weekend?
You can consider it a four-day weekend off because after
that, after Saturday/Sunday she has Tuesday/Wednesday
off.
Let me ask you this, have you gone through all of the
calendars of Exhibit 24? And I suggest to you that every
one of them has somebody who didn’t get a four-day
weekend off. How would that be justified in light of the
fact that you testified that this is what’s done basically at
all the stations?
MR. GETZ: Objection; it mischaracterizes the testimony .
I think she testified the ideal is to try to [p. 1197] give
everybody a four-day weekend, not that it was absolutely
done.
65a
THE COURT: Well, she can answer the question. Will
you restate it, please?
MR. BOOTHBY: Sure.
Q
Q
My understanding is your testimony is that what you did
on this chart is what you knew was done at all the
stations, including Yermo, and I’m suggesting to you,
and I can take -- if I could take the time, I would do it --
I would suggest to you that on every month somebody
doesn’t get a full weekend off, and on every month there
are several people that get more than a full weekend off
plus two extra days. In other words, there are people
getting four-day weekends, other people are not getting
four-day weekends, and some people are consistently in
that pattern. And my question is why is that?
We strive to always give everybody a four-day weekend
off. Now you’re talking about 1982, okay, and we strive
to give everybody at least four or five days off in a row.
Weekends are preferable if you can do it. If a person did
not get it for that month, then definitely the following
would strive to have that person have a day off -- have a
weekend off. And to do that, you have to look at the
month above and the month [p. 1198] after. You have
three months that you’re looking at at one time.
So really you cannot judge it with a one-month calendar,
can you?
THE COURT: Judge what?
MR. BOOTHBY: Judge what is fair, what is appropriate and
what is normal.
Q
A Yes, when you’re making a schedule.
You have to look at more than one month , don’t you?
Q
A
Q
66a
Let me have you look at, for instance, March of ’83.
"83?
March of ’83.
THE COURT: That’s part of Exhibit 24?
MR. BOOTHBY: Exhibit 24, yes.
THE WITNESS: Okay.
Q
A
Q
A
Q
BY MR. BOOTHBY: Now does -- let’s look at Mr.
Tracy. Did he get a four-day weekend off?
He got a Friday/Saturday off. Now do you want me -- he
got four days in a row twice.
Yeah, but did he get a four-day weekend off?
Fe got a Saturday off with that.
Now on your chart you made sure that everybody had a
Saturday and Sunday off, did you not?
[p. 1199]
> O>fO >
We also spoke about ideal on that chart.
I understand. But my question is, did Mr. Tracy get a
four-day weekend off including Saturday and Sunday?
Not in March 1983.
How about Mr. McClane?
No, he did not, but --
How --
-- however, I think it qualifies a further response. I
didn’t know the situation of these two employees then.
I didn’t know if they had requested to have these specific
OF 0 - ©
>
>
>
> O - 0
67a
days off, So it’s very difficult for me to say -- answer that
question, truly, not knowing the situation.
How about Mr. McCormick?
No, he did not.
How about the next one, R.L. Daniels?
No, he did not.
Let’s look at the next month, and you said “well, you got
to look at more than one.” Look at Mr. Tracy again; did
he get a four-day weekend off?
What you don’t know is that at the end of the month --
Yes.
-- he is off. You don’t know if the following [p. 1200]
month --
Well, let’s look at the following month. It’s the next page.
No, he didn’t.
Well, he didn’t get it off two months in a row. How do
you explain that?
Sir, like I said, I cannot explain it not knowing the
Situation, not knowing what was happening with these
employees. I don’t know if they requested those specific
days off.
Oh, and if they request days off it makes a difference?
Yes, if you request a specific time off.
How about Mr. Daniels in April; did he get it off?
According to this, no.
* * *K
68a
APPENDIX G
DEFENDANT’S STATE OF CALIFORNIA
POST-TRIAL BRIEF
at p. 48
* * *k *
At no time has defendant suggested that the “morale” of the
Yermo station would inevitably suffer if plaintiff were
accommodated.
* * * *
69a
APPENDIX H
DEFENDANT’S STATE OF CALIFORNIA BRIEF
IN THE NINTH CIRCUIT COURT OF APPEALS
at p. 20, n. 18
At least one witness, Maria Lozano, testified that she also
was able to swap shifts on occasion to attend religious
services and meetings. (RT 433). Further, as plaintiff
admits, for 10 years, a Catholic lay minister was
accommodated for religious reasons until problems arose.
(RT 1057-1059; 951-95). Thus, the claim that all shift swaps
were for “secular reasons” is not substantiated by the record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.