Equal Emp't Opportunity Comm'n v. Publix Super Mkts., Inc.

481 F.Supp.3d 684

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,

v.PUBLIX SUPER MARKETS, INC., Defendant.

No. 3:17-cv-1308

United States District Court, M.D. Tennessee, Nashville Division.

Filed August 20, 2020

Faye A. Williams, Roslyn N. Griffin, Equal Employment Opportunity Commission, Memphis, TN, Rachel V. See, Equal Employment Opportunity Commission, Washington, DC, for Plaintiff.

Edmund J. McKenna, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Tampa, FL, Taylor B. Mayes, Butler Snow LLP, Wendy V. Miller, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Nashville, TN, for Defendant.

MEMORANDUM OPINION

ELI RICHARDSON, UNITED STATES DISTRICT JUDGE

Pending before the Court are Plaintiff's Motion for Partial Summary Judgment (Doc. No. 85, "Plaintiff's Motion") and Defendant's Motion for Summary Judgment (Doc. No. 88, "Defendant's Motion"). Each party has filed both a response in opposition to the other party's motion and a reply in support of its own motion, in accordance with the Local Rules of Court and the Federal Rules of Civil Procedure.

BACKGROUND ¹

Plaintiff, the Equal Employment Opportunity Commission ("EEOC"), is the agency of the United States charged with the administration, interpretation, and enforcement of Title VII of the Civil Rights Act of 1964 ("Title VII"). Plaintiff brought this action, pursuant to 42 U.S.C. § 2000e-5(f)(1) and (3), as a result of a charge of employment discrimination brought by Guy Usher against Defendant, Publix Super Markets, Inc. ("Publix"). Usher asserted in his EEOC charge, and Plaintiff alleges herein, that Defendant refused to provide Usher a religious accommodation and constructively discharged him from his employment.

Usher, an African American male resident of Nashville, Tennessee, contends that he practices Rastafarianism, including the Rastafarian practices of prayer, non-consumption of alcohol and pork, and maintaining his hair in dreadlocks. On January 9, 2017, Usher applied and was interviewed for a part-time position at Defendant's store on Harding Pike in Nashville. At the conclusion of the interview, Defendant's Assistant Store Manager, Ms. McKee, told Usher he would have to cut his hair to work at Publix.² Plaintiff claims that Usher informed McKee that he could not cut his hair, because it was against his religion, and that he asked whether he could wear his hair inside a hat. Plaintiff alleges that McKee responded that she would have to check and get back to him.

Plaintiff alleges that on January 10, 2017, Defendant (through McKee) offered Usher employment as either a cashier or a produce clerk. Plaintiff asserts that McKee also informed Usher that Publix could not accommodate his religious beliefs by allowing an exception to its Appearance Standards (hereinafter, "grooming policy"), which prohibit male employees from wearing their hair longer than the collars of their shirts. Plaintiff claims that Usher initially refused Publix's offer of employment but later called back and accepted the part-time produce clerk position. Plaintiff alleges that Usher referenced his religion and equal-employment-opportunity laws and asked again whether Publix would still require him to cut his hair. Plaintiff avers that Defendant, through McKee, reiterated that Publix would require him to cut his hair. Plaintiff contends that several days later, Usher called Defendant's store and spoke with its Customer Service Manager, Ms. Johnson. Plaintiff asserts that Usher told her that he felt uncomfortable cutting his hair, for religious reasons. Plaintiff alleges (in the Complaint)³ that Johnson asked whether Usher wanted Publix to withdraw its offer of employment, and that Usher said yes.

Plaintiff alleges that Defendant's withdrawal of its offer of employment amounted to constructive discharge and that its practice of refusing to provide accommodation for his religious beliefs deprived Usher of equal employment opportunities, was intentional, and was malicious or undertaken with reckless indifference to the federally protected rights of Usher.

In Plaintiff's Motion, Plaintiff seeks partial summary judgment, i.e. , summary judgment on the issue of liability on all of its claims. In Defendant's Motion, Defendant seeks summary judgment on all of Plaintiff's claims. Plaintiff asserts that the Court should strike Defendant's Motion as untimely under the Revised Case Management Order (Doc. No. 71), which states that all dispositive motions must be filed by June 15, 2019, two days before Defendant's (dispositive) Motion was filed.

Rule 6 of the Federal Rules of Civil Procedure provides that, unless the Court orders otherwise, if the Clerk's office is inaccessible, then the time for filing is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(3)(A). Here, June 15, 2019, fell on a Saturday, and Defendant filed its Motion on the following Monday.

Plaintiff argues, however, that Rule 6 does not apply in this situation, citing subdivision (a) of Rule 6 itself, which provides that "The following rules apply in computing any time period specified in these rules, in any local rule or court order, or in any statute that does not specify a method of computing time." Fed. R. Civ. P. 6(a). Citing the Advisory Committee Notes for the 2009 Amendment to Rule 6(a), Plaintiff contends that the time-computation provisions of subdivision (a) apply only when a time period must be computed, not when a fixed time to act is set. See also Violette v. P.A. Days, Inc. , 427 F.3d 1015, 1018 (6th Cir. 2005) (language of Rule 6(a) does not address situations where litigants are required to file papers on a particular, stated, calendar date), cited in Evans v. Aloisio, Case No. 1:19-cv-331, 2020 WL 2571671, at *2, n.2 (S.D. Ohio May 21, 2020).

Defendant's reliance upon Rule 6 ’s provisions concerning extending a filing date that falls on a weekend, although inconsistent with the advisory committee notes and some authority interpreting Rule 6(a), is understandable under the circumstances. Defendant's interpretation is by no means clearly foreclosed by the text of Rule 6(a), nor by any (non-existent) custom in this Court to consistently treat a deadline set on a specific date that falls on a Saturday as necessarily expiring on that Saturday and not the beginning of the following workweek. Moreover, there is no indication that Defendant either is acting in bad faith either in advancing this interpretation of Rule 6(a) or in filing on the Monday after the Saturday. And importantly, given the extensive briefing by both parties on these cross-motions for summary judgment, the Court fails to see that (or how) Plaintiff has been prejudiced by the two-day delay in Defendant's filing. In its discretion, absent any indication of bad faith or prejudice, the Court declines to strike Defendant's Motion.

SUMMARY JUDGMENT

Summary judgment is appropriate where there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In other words, even if genuine, a factual dispute that is irrelevant or unnecessary under applicable law is of no value in defeating a motion for summary judgment. See id. at 248. On the other hand, "summary judgment will not lie if the dispute about a material fact is ‘genuine[.]’ " Id.

A fact is "material" within the meaning of Rule 56(c) "if its proof or disproof might affect the outcome of the suit under the governing substantive law." Anderson , 477 U.S. at 248, 106 S.Ct. 2505. A genuine dispute of material fact exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Harris v. Klare , 902 F.3d 630, 634-35 (6th Cir. 2018).

The party bringing the summary judgment motion has the initial burden of identifying portions of the record that demonstrate the absence of a genuine dispute over material facts. Pittman v. Experian Info. Sol., Inc. , 901 F.3d 619, 627-28 (6th Cir. 2018). If the summary judgment movant meets that burden, then in response the non-moving party must set forth specific facts showing that there is a genuine issue for trial. Id. at 628.

A party asserting that a fact cannot be or genuinely is disputed—i.e., a party seeking summary judgment and a party opposing summary judgment, respectively—must support the assertion by citing to materials in the record, including, but not limited to, depositions, documents, affidavits or declarations. Fed. R. Civ. P. 56(c)(1)(A). On a motion for summary judgment, a party may object that the supporting materials specified by its opponent "cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). Upon such an objection, the proponent of the supporting material must show that the material is admissible as presented or explain how it could be presented in a form that would be admissible. Thomas v. Haslam , 303 F. Supp. 3d 585, 624 (M.D. Tenn. 2018) ; Mangum v. Repp , 674 F. App'x 531, 536-37 (6th Cir. 2017) (citing Fed. R. Civ. P. 56(c) advisory committee's note to 2010 amendment).

The court should view the facts and draw all reasonable inferences in favor of the non-moving party.⁴ Pittman , 901 F.3d at 628. Credibility judgments and weighing of evidence are improper. Hostettler v. College of Wooster , 895 F.3d 844, 852 (6th Cir. 2018). As noted above, where there is a genuine dispute as to any material fact, summary judgment is not appropriate. Id. The court determines whether sufficient evidence has been presented to make the issue of fact a proper jury question. Id. The mere existence of a scintilla of...