Citations
- 115 F. Supp. 3d 1203
Full opinion text
ORDER
PHILIP A. BRIMMER, United States District Judge
This matter is before the Court on the Motion for Summary Judgment and Brief in Support [Docket No. 330] filed by defendant JBS USA,'LLC (“JBS”). This'Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and § 1345.
I. BACKGROUND
This case arises out a conflict between JBS and several hundred Muslim employees at the JBS beef processing facility in Greeley, Colorado (the “Greeley plant” or the “Greeley facility”) who sought accommodation from JBS for their religious beliefs. The conflict reached its height during Ramadan 2008, when employees requested that JBS accommodate their need to leave the production line to pray at or near sundown. The employees and JBS were unable to come to an agreement, leading to the suspension and termination of a large number of Muslim employees. The following facts are undisputed unless otherwise indicated.
A. Procedural History
On August 30, 2010, plaintiff Equal Opportunity Employment Commission (“EEOC”) filed this case, claiming that JBS discriminated against its Muslim employees on the basis of religion by engaging in a pattern or practice of retaliation, discriminatory discipline and discharge, harassment, and denying its Muslim employees reasonable religious accommodations. See Docket No. 1.
On August 8, 2011, the Court issued an order bifurcating this case. Docket No. 116 (the “bifurcation order”). The claims before the Court during Phase I are (1) EEOC’s claim that JBS engaged in a pattern or practice of denying Muslim employees reasonable religious accommodations (the “religious accommodation claim”), Docket No. 116 at 18, (2) EEOC’s retaliation pattern or practice claim, and (3) EEOC’s discriminatory discipline and discharge pattern or practice claim, insofar as the latter two claims (collectively, the “retaliation and discrimination claims”) are based on the events taking place during Ramadan 2008. Docket No. 116 at 15. On March 31, 2014, JBS filed the present motion. Docket No. 330. JBS seeks summary judgment on all three of EEOC’s Phase I claims. Docket No. 330 at 1.
B. Greeley Plant Employees
1. Staffing
The Greeley plant employs approximately 3000 people. DSF ¶ 12. Employees are placed on one of three shifts: the A shift, which operates from 6:00 a.m. to 2:30 p.m., the B shift, which operates from 3:15 or 3:30 p.m. to 11:30 p.m., and the C shift, which consists of cleaning and sanitation and follows the B shift. DSF ¶ 11; R. Anderson Dep., Docket No. 330-3 at 2, p. 58:14-22. Roughly 1500 employees are assigned to the A shift and roughly 1500 employees are assigned to B shift. DSF ¶ 12. In the days prior to September 10, 2008, approximately 433 Muslim employees worked on B shift. DSF ¶ 22; Resp. to DSF ¶ 22. The United Food and Commercial Workers International Union, Local No. 7 (the “union”) is the bargaining agent for all production employees at the Greeley plant. DSF ¶ 32.
2. Muslim Employees’ Religious Beliefs
Muslims customarily pray five times per day. The Fajr prayer takes place in the morning, the Dhuhr prayer takes place at noon, the Asr prayer takes place in the afternoon, the Maghrib prayer takes place at sunset, and the Isha prayer takes place in the evening. DSF ¶¶ 55-56. Muslim employees differ in the exact amount of time it takes to perform each prayer, ranging from four minutes to, in some cases, more than ten minutes. DSF ¶ 57. During Ramadan, Muslim employees must break their fast with water or food or both after sundown. PSF ¶ 24; Docket No. 349 at 51-62. If a Muslim employee has gone to the restroom, passed gas, or touched someone of the opposite sex, ablution or cleansing is also required in connection with each prayer. DSF ¶ 58; Resp. to DSF ¶ 58. Ablution may take an employee a few additional minutes if done in conjunction with prayer; however, it can be done at any time prior to prayer, including during a scheduled break or prior to work. DSF ¶ 58; Resp. to DSF ¶ 58. Not every Muslim employee has the same belief regarding the length of time within which it is permissible to perform his or her prayers. DSF ¶ 60.
C. Greeley Plant Operations
1. Production Floor
Carcasses move through the plant via a chain, which - carries beef in one direction from the slaughter area to the cooler, through the fabrication area, and then into packaging. DSF ¶ 13. The slaughter area is where the cattle are killed, after whieh the carcasses are moved into the cooler and assigned a grade, such as “Prime” or “Choice.” DSF ¶ 16. The fabrication area is where the carcasses are cut into pieces and processed. DSF ¶ 20. The fabrication area is organized into multiple lines, each of which is responsible for processing a different aspect of the animal. J. Palacios Dep., Docket No. 330-18 at 2-3, pp. 106:7-112:7. For example, there are multiple boning lines, a rib line, an arm line, a break line, a value added line, and a loin line. Id. Only one grade of cattle at a time may be run through the fabrication area. DSF ¶ 17. After passing through the fabrication area, the processed beef moves into the packaging area where it is prepared for shipping. DSF ¶ 23.
The chain moves beef through the facility at a certain speed (the “chain speed”). DSF ¶ 14. Although the chain speed can vary, slaughter and fabrication employees are required to work at a pace that corresponds with the chain speed. Id. The United States Department of Agriculture (“USDA”) sets the maximum chain speed in the slaughter area of the plant. DSF ¶ 15. Because the plant operates on an assembly line, JBS is required to correlate the chain speeds in the slaughter and fabrication areas. Id. Because only one grade of cattle at a time may be run through the fabrication area, multiple grade changes occur per shift. DSF ¶ 19. The number of grade changes per shift varies from three to 20. Resp.- to DSF ¶ 19. A one to five minute gap in the chain occurs during every grade change. DSF ¶ 18.
The number of employees assigned to each line varies; several Muslim employees often work on the same line. DSF ¶¶ 21-22. Typically there is. one supervisor and one or two team leads per line. DSF ¶31. A trainer may also be assigned to certain lines, who is available to fill in for employees who take unscheduled breaks. Resp. to DSF ¶ 31. For example, the value added line has only 15 to 20 employees, id., whereas the .break line has one supervisor and two team leads supervising 85 employees. DSF ¶ 31. The number of employees needed to do a particular job at a particular chain speed is referred to as “crewing.” DSF ¶27. The parties agree that proper crewing is important for employee safety and product quality. DSF ¶ 30. JBS contends that, in every instance where the chain speed is increased, an increase in crewing is required. DSF ¶ 28. EEOC disputes this, asserting that crewing varies depending on the increase in chain speed and the position. “Over-crewing” refers to over-staffing lines so as to account for absent employees and vacations. DSF ¶ 29. The Greeley plant typically over-crews at 115-117%. PSF ¶ 63. JBS claims that over-crewing is not meant to account for employees taking unscheduled breaks, whereas EEOC asserts that over-crewing is in fact used to help spell employees off the line for unscheduled breaks. Id; Resp. to DSF ¶ 29.
Some of the lines in the fabrication area are physically demanding and difficult. DSF ¶20. Production employees wear a variety of safety equipment depending on their position, which can include hard hats, hair nets, safety glasses, gloves, boots, metal-mesh gloves, arm-guards, and aprons. DSF ¶ 24; Resp. to DSF ¶ 24. Employees must remove at least some of this safety equipment prior to leaving the production floor and put it back on before returning to the line. DSF ¶ 25; Resp. to DSF ¶ 25. Employees vary in the time it takes them to remove safety equipment when leaving the line for a break. DSF ¶26.
2. Breaks
Pursuant to the .collective bargaining agreement (the “CBA”) in effect in 2008, production employees were entitled to two regular breaks during each shift, which were required to occur within certain windows of time. The first is a 15-minute rest period (the “rest break”) approximately halfway through the first part of the shift, which can occur no earlier than one and a half hours from the start of the shift and no later than three hours from the start of the shift. DSF ¶ 34. The second is a 30-minute meal break approximately halfway through the shift. Id. Employees were not be required to work more than three and a half hours without a break, unless three and three quarters hours of work would complete the workday. Id. ,
The general procedure for taking a break was for employees in the slaughter area to stop placing'beef on the chain to create either a 15-minute gap for a rest break or a 30-minute gap for a meal break. DSF ¶39. Employees would begin their break when the gap in the chain reached them, which resulted in employees leaving the line in a staggered fashion — employees nearer the beginning of the line beginning their breaks first, employees nearer the end of the line beginning their breaks last. DSF ¶¶ 40-41. JBS staggers rest and meal breaks in such a way so as to avoid leaving beef unattended on the line for extended periods of time, which increases the risk of food safety issues. Id.-, Resp. to DSF ¶41. Thus, during regular breaks, tables are cleaned and sanitized. DSF If 51.
The parties dispute when the rest and meal breaks traditionally took place during ■ the B shift. JBS claims that the rest break has historically occurred at around 6:00 p.m. and the meal break at around 9:00 p.m. DSF ¶ 37. EEOC argues that the timing of the rest and meal breaks varied somewhat more than that, citing, among other things, the deposition testimony of JBS manager Celio Fritche, who stated that the rest break generally occurred at 6:15 p.m., but could vary from 5:00 p.m. to 6:30 p.m., and that the meal break generally occurred between 8:30 p.m. and 9:15 p.m. C. Fritche Dep, Docket No. 349-69 at 9-10, pp.77:20-78:10. JBS acknowledges that the timing of the breaks varied somewhat because rest and meal breaks were, to the extent possible, coordinated with a grade change or mechanical failure..DSF ¶ 38. EEOC disputes that regular- breaks were always, coordinated with a grade change. Resp. to DSF ¶ 19 (citing deposition of JBS team leader, A. Mosqueda Dep., Docket No. 349-76 at 10, p..58:6-10 (“Q And they will change the break to coincide with a grade change? A No, not really. Q Okay. Why else do they move the break?, A Pretty much .just if the machinery breaks down.”). .
Unscheduled breaks are a different matter. Absent regular breaks, employees are allowed to leave the line to get a drink of water or for restroom emergencies. DSF ¶¶ 43-44. The parties dispute whether employees must receive permission before leaving the line to get a drink of water. DSF ¶ 44; Resp. to DSF ¶44. In non-emergency situations, employees may request permission to take unscheduled breaks to use the restroom. ■ DSF ¶ 45. Unscheduled bathroom breaks take between ten to 15 minutes. DSF ¶47. JBS admits, however, that its supervisors responded differently to requests for unscheduled breaks and that some supervisors were more lenient than others. DSF ¶ 48. Mr. Fritche testified that, regardless 6f the reason the employee requests the break, supervisors are trained to grant employees permission to leave the line for an unscheduled break when possible. C. Fritche Dep., Docket No. 349-69 at 2, p.' 45:2-24. Plant Manager Ron Gould testified' that unscheduled breaks were for restroom purposes only, such that using an unscheduled break to' pray would be deemed an unauthorized break. R. Gould Dep., Docket No. 349-73 at 6-7, p.72:24-73:15; id. at 8, p. 74:12-18. Supervisor Billie Danley also testified that unscheduled breaks were for restroom purposes only and, when asked whether praying during unscheduled restroom breaks would be a violation of JBS’s policies, responded, “If you asked to go to the bathroom, you’ve got to go to the bathroom.” B. Danley Dep., Dockét Ño. 349-64 át 5-6, p.34:20-35:2.
Mass unscheduled breaks require all employees to leave the production line at the same time. Such breaks are undesirable because they cause beef, to be left on the line and do.not .allow for the cleaning of work areas. DSF ¶¶ 49-50. Moreover, per USDA regulations, beef that remains on the slaughter floor for more than 45 minutes must: be classified as “distressed,” which cuts the value of the meat in half. DSF ¶¶ 51-53. Additionally, mass breaks are unpopular with employees because locker rooms, restrooms, and cafeteria facilities are too small to accommodate an entire shift of employees at the same time. DSF ¶ 54.
D. Ramadan 2008
In 2008, Ramadan ran from September 1 through September 30. DSF ¶ 105. Ma-ghrib prayer times ranged from 7:30 p.m. on September 1 to 6:42 p.m. on September 30. Docket No. 330-93. On Tuesday, September 2, between 40 and 100 B shift Muslim employees approached Superintendent Juan Palacios after their shift and requested a 7:30 p.m. break. DSF ¶ 106; PSF ¶ 19. EEOC asserts that Muslim employees only requested that this accommodation take place during Ramadan. JBS disputes this. PSF ¶ 19; Resp. to PSF ¶ 19. Mr. Palacios did not grant their request, but advised them to contact the HR department. DSF ¶ 107. On Wednesday, September 3, approximately 200 Muslim employees gathered outside the plant before the B shift. DSF ¶ 108. Human Resources Director Eric Ray met with the crowd of Muslim employees and asked the employees to select a committee to speak for them. DSF ¶ 108; Resp. to DSF ¶ 108. The Muslim employees selected 5 to 7 representatives (the “Muslim employee committee” or the “committee”) to meet with Greeley plant management. DSF ¶ 110. All other Muslim employees began work at 3:15 p.m. at the start of the B shift. Resp. to DSF ¶ 108.
JBS claims that the Muslim employee committee could not agree on either the amount of time needed to pray or the appropriate window in which the Maghrib prayer must be performed. DSF ¶ 111. EEOC asserts that the committee explained that they required 15 minutes around sunset to pray and break their fast. PSF ¶24. According to EEOC, the committee did not disagree about the appropriate prayer window; rather, the committee agreed that moving the meal break to 7:30 p.m. for the remainder of Ramadan would be a reasonable accommodation. Resp. to DSF ¶ 111; PSF ¶ 25; see also Asad Abdi Dep., Docket No. 349-48 at 14, p. 77:1-7. The committee also proposed alternative accommodations, such as moving the rest break to correspond with sunset or allowing unscheduled breaks for prayer. PSF ¶28. JBS refused to allow unscheduled breaks for prayer. PSF ¶ 29. However, at no time did the Muslim employee committee request that the company change the meal break from a rolling break to a mass break or request that Muslim employees be granted an extra break. PSF ¶ 31. As a result of this meeting with the committee, JBS agreed to move the meal break from approximately 9:30 p.m. to 7:30 p.m. on that day, Wednesday, September 3. DSF ¶ 112.
On Thursday, September 4, the Muslim employee committee met with Greeley plant management. An agreement was reached to keep the meal break at 7:30 p.m. on Thursday and Friday. DSF ¶ 115. JBS asserts that many non-Muslim employees were angry with the change as evidenced by the fact that approximately 200 non-Muslim employees refused to leave the line during the Thursday meal break. DSF ¶ 116. EEOC disputes this, asserting that JBS supervisor Robert Anderson did not recall receiving any complaints from non-Muslim employees, R. Anderson Dep., Docket No. 349-61 at 16-17, p. 139:20-140:2, and that non-Muslim production employee Alicia Espinoza was not bothered by the changed meal time. A. Espinoza Dep,, Docket No. 349-67 at 5, p.75:4-6. Moreover, operations manager Chris Kitch testified that perhaps 40 or 50 non-Muslim employees refused to leave the line at the 7:30 meal break. C. Kitch Dep., Docket No. 349-83 at 18, p. 117:4-16.
JBS claims that many non-Muslim employees left the line at 9:15 p.m. — when the meal break normally took place — , which forced JBS to reduce the chain speed to cover for their absences. DSF ¶ 117. The number of non-Muslim employees who left the line is unclear as is whether production was affected. Production employee Eméri-ta Garcia testified that she was not aware of any fellow non-Muslims leaving the line at 9:15 p.m. on Thursday, September 4. E. Garcia Dep., Docket No. 349-70 at 6, p. 161:17-21. JBS’s production records show that the Greeley plant had an average chain speed of 362 on September 2, 3, at 4. Docket No. 351 at 1. JBS Corporate Comptroller Heather Skinner testified that the Greeley plant had higher production numbers the week of September 1 than it had the previous week. H. Skinner Dep., Docket No. 349-101 at 2-3, p. 151:19-152:9. Nonetheless, the parties agree that the non-Muslim employees who left the line at 9:15 p.m. engaged in an unauthorized work stoppage, but were not disciplined. PSF ¶¶ 84-86; Resp. to PSF ¶ 84.
On Friday, September 5, approximately 200 non-Muslim employees gathered outside the plant, indicating that they would refuse to return to work until the meal break was moved back to its normal time. DSF ¶ 118; PSF ¶ 87. The non-Muslim employees’ primary complaint was that a 7:30 p.m. meal break was too early and made the last half of their shift feel longer. DSF ¶ 119. The non-Muslim employees selected representatives to speak on their behalf with Greeley plant management and the rest returned to work, but work on the production floor began late as a result of the protest. Resp. to DSF ¶ 118; DSF ¶ 121; PSF ¶ 88; see also R. Gould Dep., Docket No. 349-73 at 28, p. 185:2-20. EEOC asserts that none of the employees who refused to start work on time were disciplined. PSF ¶ 89. The non-Muslim employee representatives indicated that they felt Muslim employees were receiving preferential treatment. DSF ¶ 122. Mr. Ray explained to the nonrMuslim employee committee that the break was being moved in an effort to accommodate Muslim employees’ religious needs, DSF ¶ 120, but EEOC claims that JBS did not explain that the break was being moved due to its legal obligation to accommodate religious practices. PSF ¶ 51. After meeting separately with both the Muslim and non-Muslim employee representatives, JBS decided to move the meal break to 8:00 p.m. DSF ¶ 123. Mr. Ray testified that JBS reached this decision in an effort to find a compromise between the requests of both groups. E. Ray Dep., Docket No. 330-19 at 18, p. 166:21-167:8. The Muslim employee committee asked that JBS wait until Monday to enact the change, but JBS refused. Asad Abdi Dep., Docket No, 349-48 at 17-18, p. 80:2-81:23. The meeting concluded at approximately 7:00 p.m. PSF ¶ 91; Resp. to PSF ¶91. The Muslim employee committee was then directed to inform Muslim employees of the change, but the committee did not have time to inform all such employees. PSF ¶ 91.
The parties agree that some Muslim employees left the line at 7:30 p.m. that night, but dispute whether they left in defiance of JBS management or because they had not been informed that the meal break would occur at 8:00 p.m. DSF ¶ 124; Resp. to DSF ¶ 124. When the 8:00 p.m. meal break started, employees filtered into the cafeteria. DSF ¶ 125. Employees were confused as a result of the meal break change. PSF ¶ 93. The actions of Muslim employees during this meal break are in dispute. JBS asserts that some Muslim employees were upset, unruly, and stood on tables shouting. DSF ¶ 125. Mr. Anderson was in the cafeteria during the 8:00 p.m. meal break for approximately five minutes and recalls that the noise level was not above average. B. Anderson Dep., Docket No. 349-61 at 18, p. 150:6-9. Mr; Kitch testified that Muslim employees were talking loudly, but he witnessed no other unruly behavior. C. Kiteh Dep., Docket No. 349-83 at 22, p. 137:5-25. JBS asserts that, near the end of the meal break, a large group of Muslim employees refused to return to work and left the cafeteria of their own accord. DSF ¶ 126. -EEOC asserts that the Muslim employees who left the plant were ordered to do so by Greeley plant management, but were willing to return to work. Resp. to. DSF ¶ 126; PSF ¶ 94;. see also B. Walker' Dep, Docket No. 349-106 at 4, 86:20-23 (“I just remember the ones that didn’t want to go back to work going out into the parking lot. We had to take them out of the building because they didn’t want to go back to work. They refused.”). Some Muslim employees were able to sneak back into the plant and resume work. PSF ¶ 95. However, most Muslim employees gathered in the parking lot and remained there until approximately 11:00 p.m., when management ordered them to leave the property. DSF ¶ 127. EEOC asserts that Muslim employees were willing to return to work, but JBS did not allow them to do so. Resp. to DSF ¶ 128. JBS suspended those employees who did not return to work on Friday. PSF K 97. Numerous Latino workers also left the plant that night, but were allowed to return to work on Monday. PSF ¶¶ 96, 98. As a result of these events, the plant was run at a reduced chain speed on September 5. DSF ¶ 128.
On Saturday, September 6, JBS managers decided to meet with the Muslim employee committee the following Monday. DSF ¶ 129. On Monday, September 8, Mr; Gould, Mr. Ray, JBS’s head of labor relations Doug Schult, and other JBS managers met with the Muslim employee committee and union representatives. DSF ¶ 131. The Greeley plant managers ex-? plained to the committee that employees could pray at the plant during scheduled breaks, but informed the committee, that Muslim employees who left the plant on Friday evening were suspended indefinitely pending further investigation. DSF ¶ 132; PSF ¶99. JBS considered the events of Friday evening to be a work stoppage, which was a terminating offense-under the CBA. DSF ¶ 133. JBS asserts that it wanted Muslim employees to return to work, an assertion which EEOC- disputes. Id.; Resp. to DSF ¶ 133.
On Tuesday, September 9, Greeley plant management again met'with the Muslim employee committee. DSF ¶ 134. JBS claims that the committee refused to provide an answer when asked what an appropriate prayer window would be and, as a result of the meeting, JBS believed that the Maghrib prayer must occur exactly at sunset. DSF ¶¶ 135, 136. The committee informed JBS that some of the suspended Muslim employees had congregated in a nearby park. DSF ¶ 137; Resp. to DSF ¶137. At approximately 1:00 p.m., JBS asked the committee and union representatives to inform the employees gathered at the park to return to work that afternoon or they would be terminated, which the committee and union representatives agreed to' do. DSF ¶ 138; PSF ¶ 100. JBS did not communicate directly with suspended Muslim employees, PSF ¶¶ 102-103, or provide the .committee or the union with a list of suspended employees. PSF ¶ 104. EEOC denies that the committee took responsibility for notifying all suspended. Muslim employees of JBS’s decision, Resp. to DSF ¶ 138, asserting that not all of the suspended employees were gathered at the park. PSF ¶ 105. When union representative Fernando Rodriquez informed Mr. Ray of this, Mr. Rodriquez testified that he recalls Mr. Ray responding, -.“You know what? L don’t care. If they return, they got. their jqb. If they don’t, they’re fired.” F-, Rodriquez Dep., Docket No. 349-96 -at 4, p. 72:16-18. Muslim pro-: duction employee Farhia Abdi testified that she was not informed to return to work until approximately 7:30 p.m. on September 9, but was pot aware that .she would be fired if she did not return to the plant that night. F. Abdi Dep., Docket No. 349-49 at 12, p, 330:3-18.
Suspended Muslim employees who did not return to work on September 9 were terminated on Wednesday, September 10. DSF ¶ 140; PSF ¶107. As a result, 96 Muslim employees were terminated. Resp, to DSF ¶ 143. It is unclear whether, before terminating Muslim employees, Greeley management determined whether or not those employees were informed to return to work. See PSF ¶108. JBS claims that Greeley plant management met with some employees who did not return to work on September 9 and allowed them to return to work, but EEOC notes that JBS does not identify any employees for whom that was the case. M; Resp. to DSF ¶ 140.
In the month of September, the B shift fabrication department experienced an overall decrease of 15-20% in eháin speed efficiency, DSF ¶ 143, which EEOC claims was caused by the mass suspension of nearly 200 employees on September 5 and the termination of 96 Muslim-employees on September 10. Resp. to DSF ¶ 143.
E. Accommodations
EEOC claims that, since 2008, Muslim employees have complained about their inability to- pray during work and that JBS has denied Muslim employees’ requests to pray- at work. PSF ¶¶ 1, 18, 24. EEOC contends that JBS has -prevented numerous employees from praying at work-— even during scheduled breaks — and has harassed, disciplined or threatened to fire those employees caught praying at the Greeley plant. PSF ¶¶ 2-4; see, e.g., Statement of Liban Adán, Docket No. 349-1 at 38, ¶ 7 (“When I would request a break so I could pray, Patricia and Umberto told me many times that. I was not allowed to pray at work.”); Charge of Discrimination of Mohamed Bunow, Docket No. 349-1 at 72, ¶ O (“Even during regularly scheduled breaks when the whole line was breaking, I was told I could not pray. I witnessed managers follow some Muslim employees into restrooms and locker rooms in- order to prevent them from praying.”); H. Has-■san Dep., Docket No. 349-75 at 2, 69:23-25 (“Q Did a yellow hat ever tell you that you would be -fired if you were caught praying? A Yes.”). Union representative Juan Gonzalez testified that supervisors would monitor restrooms and explain to employees who were praying in the restroom that such a practice was not permitted, but Mr. Gonzalez was not aware of any Somali workers -being sent to “the office” or HR for such violations. J. Gonzalez Dep., Docket No. 349-72 at 6, p. 55:2-25. An email from JBS human resources manager Matthew Lovell- dated September' 12, 2008 states that twelve employees over the last three days were written up for taking unauthorized breaks, including one employee who “admitted that they said they were going to the bathroom but were really going to pray.” Docket Ño. 349-6; see also M. Lovell Dep., Docket No. 349-84 at 3, p. 73:2-6 (testifying that he may have, but does 'not remember whether he had to continue issuing write-ups to employees who prayed during bathroom breaks). Mohamed I, Mohamed was employed as a Somali trainer at the Greeley plant and recalls that “[a] lot” of .-Somali employees were disciplined for praying during unscheduled breaks, including verbal warnings for first time violators and written warnings thereafter. Mohamed I. Mohamed Dep., Docket No. 349-89 at 5, p. 80:6-22; PSF ¶7. Mr. Gonzalez testified that, on average, more Muslim employees received verbal warnings for not doing their job than non-Muslim employees, but it is not clear from his testimony what time period he is referring.to. J. Gonzalez Dep, Docket No. 349-72 at 7, p. 57:5-18.
In 2009, JBS changed its policy, allowing employees to pray during unscheduled breaks during Ramadan 2009 and 2010. PSF ¶¶ 9, 13; see also Docket No. 349-7. JBS’s Director of Human Resources Robert Daubenspeck testified that, when the policy was enacted in 2009, supervisors he spoke with were comfortable that' such a policy would not cause disruptions to production and subsequently reported only isolated disruptions. R. Daubenspeck Dep., Docket No. 349-65 at 7, pp. 53:18-54:25. He was not aware of any burden this placed upon JBS. Id. In July 2011, JBS changed its policy to allow.employees to pray during unscheduled breaks throughout the year. PSF ¶ 12. EEOC asserts that JBS has failed to ensure that supervisors fairly implement the unscheduled break policy, PSF ¶ 81, and that, despite JBS’s changes in policy, Muslim employees continue to be denied the ability to pray or break their fast during Ramadan. PSF ¶¶ 11,14,17.
JBS contends that it has accommodated and continues to accommodate Muslim employees’ religious needs in the following ways:
• Permitting employees to pray before and after shifts and during scheduled break times. DSF ¶ 101.
• Allowing Muslim employees to break their fast during Ramadan by drinking from water fountains near the production line. DSF ¶ 102.
• Offering Muslim employees the option to transfer to the A shift. DSF ¶ 103.
• Designating prayer rooms and creating footbaths prior to Ramadan 2009 for Muslim employees to use. DSF ¶ 104.
EEOC disputes that these accommodations are reasonable. As a result, EEOC proposes two accommodations that it claims would permit the Greeley plant’s Muslim employees to timely pray in accordance with their religious beliefs. DSF ¶ 66. Specifically, EEOC requests (1) that a regular break be moved to coincide with required prayer times (the “regular break accommodation”) or (2) that Muslim employees be permitted to leave the line for ten to fifteen minutes at their required prayer times as an unscheduled break (the “unscheduled break accommodation”). M
F. The Nebraska Case
On August 30, 2010, EEOC filed a case against JBS in the United States District Court for the District of Nebraska (the “Nebraska- case”), alleging that JBS violated Title VII in its treatment of employees at its Grand Island, Nebraska plant (the “Grand Island plant”). EEOC v. JBS USA, LUC, No. 10-cv-00318-LSC-FG3 (D. Neb. August 30, 2010) (Docket No. 1 at 1). EEOC brought claims alleging that JBS engaged in a pattern or practice of unlawfully denying its Muslim employees religious accommodations, unlawfully terminating its Muslim employees on the basis of religion and national origin, and unlawfully retaliating against its Muslim employees because of their requests for religious accommodations and their complaints of denied religious accommodations. Id. EEOC’s- unlawful termination and retaliation claims were based upon the termination of Grand Island plant employees “on or about September 18, 2008.” Docket No. 330-102 at 6, ¶ 7(d)-(e).
The Grand Island and Greeley plants operate similarly in many respects; both use a production line, with employees in the slaughter and fabrication areas required to work at the chain speeds. See Docket No. 330 at 5, ¶¶ 13-17. The Grand Island plant’s A shift runs from 6:00 a.m. to 2:30 p.m., B shift from 3:00 p.m. to 11:30 p.m. Docket No. 330-103 at 5. The Grand Island workforce consisted of between 2800 and 3000 employees, evenly split between the A and B shifts. Id. In . 2008, slightly fewer than 1500 employees worked on the B shift, 200-300 of whom were Muslim employees. Id. at 7.. The Grand Island plant typically over-crewed by approximately eight to nine percent. Id., at 10. The CBA in effect at the Grand Island plant provided that employees would receive one 15-minute paid rest period per shift, approximately 2.5 hours after the start of each shift, meaning the B shift rest period could occur between 5:00 and 6:00 p.m. Id. at 5. The CBA provided that the employees’ 30-minute unpaid, meal break could occur approximately five hours after the start of the shift, with a 30-minute variance, meaning the B. shift meal break could occur between 7:30 and 8:30 p.m. Id. The procedure for leaving the line at each rest and meal break is substantially the same as the procedure in place at the Greeley plant. See Docket No. 330 at 9-10, ¶ 39-41.
On April 15, 2011, the parties to the Nebraska case entered into a bifurcation agreement, which provided that EEOC’s pattern or practice claims would be resolved in Phase I and individual claims resolved in Phase II. Docket Nd. 330-105 at 2. The parties filed cross motions for summary judgment on EEOC’s Phase I claims. Id. at 1. The court denied both parties’ motions for summary judgment on EEOC’s religious accommodation claim. Id. at 37. The court granted JBS summary judgment on EEOC’s termination and retaliation claims, ruling that JBS’s termination of 80 Muslim employees — the sole basis for such claims — was “a single action in response to the events of September 18, '2008,” which was insufficient as a matter of law to establish a pattern or practice of unlawful termination or retaliation. Id. at 39. The court rejected EEOC’s argument that the 80 terminations should be viewed as discrete, individual actions. Id.
EEOC’s Phase I religious accommodations were tried to the court in May 2013. Docket No. 330-103 at 1. EEOC’s proposed accommodations were “(1) allow Muslim employees to take unscheduled breaks to pray; and/or (2) move the meal break during the remainder of Ramadan 2008 (from September 18 through September 30, 2008) to a time that coincided closely with such employees’ sunset prayer time.” Id. at 33-34. The court ruled that EEOC- satisfied its initial burden under Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), shifting the burden to JBS to show that both of the proposed accommodations would create undue hardship. Id. at 32. The court first considered unscheduled prayer breaks, finding that such breaks would have to have taken place within ten to fifteen 'minutes of sunset and would result in 200 employees leaving the line within a ten-minute window. Id. at 34. The court found that unscheduled prayer breaks would create food safety and operational efficiency issues, as well as added costs, which resulted in a more than de minimis cost to JBS. Id. at 35-36. The court also found that such breaks would place a greater than de minimis burden on non-Muslim co-workers, requiring supervisors to change fill in, causing non-Muslim employees to work harder, and negatively impacting employee morale. Id. at 37. The court next considered moving the designated meal break and converting it to a mass break, finding, that such measures would force 50-60 head of cattle to be classified as “distressed” and create food safety is•sues, thereby placing a greater than de minimis burden on JBS. Id. at 38-39. The court also found that such an accommodation would cause uneven work periods and shorter work periods for non-Muslim employees, thereby placing a greater than de minimis burden on non-Muslim coworkers. Id. at 39. As a result, the court concluded that JBS established its affirmative defense of undue hardship and entered judgment on EEOC’s Phase I claims in JBS’s favor. Id. at 40.
II. STANDARD OF REVIEW
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A disputed fact is “material” if under the relevant substantive law it is essential to proper disposition of the .claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir.2001). Only disputes over material facts can. create a genuine issue for trial and preclude summary judgment. Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir.2005). An issue is “genuine” if the evidence is such that it might lead a reasonable'jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir.1997).
' However, “[w]hen, as in this case, the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden at the summary judgment stage by identifying a lack of evidence for the nonmovant on an essential element of the nonmovant’s claim.” Bausman v. Interstate Brands .Corp., 252 F.3d 1111, 1115 (10th Cir.2001) (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.1998)) (internal quotation marks omitted). “Once the moving party meets this burden, the burden shifts to the nonmov-ing party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir.1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The nonmoving party may not rest solely on the allegations in the pleadings, but instead hiust designate “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324, 106 S.Ct. 2548; see Fed. R. Civ. P. 56(e). “To avoid summary judgment, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case.”' Bausman, 252 F.3d at 1115 (citing Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir.1994)). “Iii applying this standard, we view all facts and any reasonable inferences that might be drawn fropi them in the light most favorable to the nonmoving party.” Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir.1994).
III. ANALYSIS
A. Pattern or Practice Claims
Pattern or'practice suits originated with § 707 of Title VII, 42 U.S.C. § 2000e-6. The seminal pattern or practice case isTemnsters, 431 U.S. at 324, 97 S.Ct. 1843, in which the Supreme Court laid out the framework for analyzing claims where the government seeks to remedy an employer’s -systematic practice of discrimination. Pattern or practice claims require the EEOC to “prove more than the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts.” Teamsters, 431 U.S. at 336, 97 S.Ct. 1843. To recover under a pattern or practice theory, discrimination must be “the company’s standard operating procedure[,] the regular rather than the unusual practice.” Id. Pattern or practice claims can take a number of different forms, depending on the unlawful employment practice in which the EEOC alleges the employer systematically engaged.
“Pattern-or-practice cases differ significantly from the far more- common cases involving one or more claims of individualized discrimination” and are typically tried in two or more phases. Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1106 (10th Cir.2001). During the first phase, the EEOC must establish a prima facie case of pattern or practice of discrimination by “demonstrating] that unlawful discrimination has been a regular procedure or policy followed by an employer or group of employers.” Teamsters, 431 U.S. at 360, 97 S.Ct. 1843. If the EEOC carries this burden, the employer may defend against liability by challenging EEOC’s proof or providing nondiseriminatory explanations for the procedure. Id. at 360-61, 97 S.Ct. 1843. If the employer fails., ,to carry this burden, “a trial court may then conclude that a violation has occurred and determine” whether prospective relief is appropriate on a class wide basis. Id. at 361, 97 S.Ct. 1843. During this first phase, the EEOC is “not required to offer evidence thát each person for whom it will ultimately seek,relief was,a victim of the employer’s discriminatory policy” or prac-; tice. Id. at 360, 97 S.Ct. 1843. Rather, it must establish' that such a policy or practice existed. Id.
Individual relief,-if sought, is liti-. gated in subsequent phases. Id, at 361, 97 S.Ct. 1843. If the EEOC prevailed in the first phase, each individual worker is entitled to a presumption that “any particular employment decision, during the period in which the discriminatory policy was ,in force, was made in pursuit of that policy.” Id. at 362, 97 S.Ct 1843. The employer may then .rebut this presumption with evidence that the. employment decision was made for-lawful reasons. Id. But, if the EEOC does not prevail “during the first stage of a pattern-or-practice trial, [individual plaintiffs] are nevertheless entitled to proceed on their individual claims- of discrimination... .Naturally, however, they are left to proceed under the normal McDonnell Douglas framework, rather than benefitting from a presumption of discrimination.” Thiessen, 267 F.3d at 1106 n. 8 (internal citations omitted).
B. Collateral Estoppel
JBS argues,that the Nebraska court’s rulings estop EEOC from (1) claiming that its proposed accommodations of providing: unscheduled breaks for prayer and moving scheduled breaks to sundown are non-burdensome and (2) claiming that the termination and discipline of Muslim workers during - Ramadan 2008 constitutes a pattern or practice of retaliation and discrimination. Dockét No. 330 at 28.
Collateral estoppel or issue preclusion can “preclude relitigation of both issues of law and issues of fact if those issues were conclusively determined in a prior action.” United States v. Stauffer Chem. Co., 464 U.S. 165, 170-71, 104 S.Ct. 575, 78 L.Ed.2d 388 (1984). Mutual defensive collateral estoppel applies where, as here, a defendant seeks to preclude the government from relitigating “the same issue already litigated against the same party in another case involving, virtually identical facts.” Id. at 169, 104 S.Ct. 575. In the Tenth Circuit, a party asserting collateral estoppel must satisfy four elements:
(1) the issue previously decided is identical -with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party, or in privity with a party, to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.
Estate of True v. C.I.R., 390 F.3d 1210, 1232 (10th Cir.2004). The parties dispute only the first and fourth elements.
Determining the identity of issues between two cases is largely a fact dependent inquiry. Generally speaking, “changes in facts essential to a judgment will render collateral estoppel inapplicable in a subsequent action raising the same issues,” Montana v. United States, 440 U.S. 147, 159, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979), whereas factual differences which are “of no legal significance whatever in resolving the issue presented in both cases” will not defeat an otherwise satisfactory assertion of collateral estoppel. Stauffer Chem., 464 U.S. at 172, 104 S.Ct. 575. The Tenth Circuit has suggested, and the parties agree, that a number of considerations may be relevant to the first element, such as:
Is there a substantial overlap between the evidence or argument to be advanced in the second proceeding and that advanced in the first? Does the new evidence or argument involve application of the same rule of law as that involved in the prior proceeding? Could pretrial preparation and discovery relating to the matter presented in the first action reasonably be expected to have embraced the matter sought to be presented in the second? How closely related are the claims involved in the two proceedings?
B-S Steel of Kan., Inc. v. Tex. Indus., Inc., 439 F.3d 653, 663 (10th Cir.2006) (quoting Restatement (Second) of Judgments § 27 cmt. c.). However, in contrast to the related doctrine of claim preclusion, this element is satisfied only when an issue is “actually and necessarily determined” in a prior proceeding “by a court of competent jurisdiction.” Montana, 440 U.S. at 153, 99 S.Ct. 970.
With respect to the fourth element, “[t]he inquiry into whether a party had a full and fair opportunity to litigate an issue ‘[o]ften. ..will focus on whether there were significant procedural limitations in the prior proceeding, whether the party had the incentive to litigate fully the issue, or whether effective litigation was limited by the nature or relationship of the parties,’ ” Murdock v. Ute Indian Tribe of Uintah & Ouray Reservation, 975 F.2d 683, 689 (10th Cir.1992) (quoting Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1521 (10th Cir.1990)).
1. EEOC’s Proposed Accommodations
EEOC does not dispute that the accommodations it proposes in this case are identical to those proposed in the Nebraska case. See Resp. to DSF ¶ 4. The question then becomes whether EEOC is collaterally estopped from litigating the issue of whether those accommodations result in undue hardship.
a. Identity of Issues
JBS argues that the evidence relevant to EEOC’s proposed accommodations and JRS’s undue hardship defense in both cases is “virtually identical.” Docket No. 330 at 30 (citing JBS’s Statement of Undisputed Material Facts). JBS’s argument is conclusory and makes little attempt to dif-fex-entiate between those facts material to its undue hardship defense and those facts that are of no legal significance as is its bux’den to do. Because the undue hardship defense generally turns on “the particular factual context of each case,” Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1490 (10th Cir.1989) (quotation omitted), JBS’s argument is insufficient to establish this element.
Moreover, EEOC identifies multiple differences between the Greeley and Grand Island plants that may be essential to the judgment in this case. ■ First, the parties agree that over-crewing occurred at higher levels in Colorado. Docket No: 360 at 14. JBS argues that these differences are immaterial because EEOC admits that over-crewing would not provide enough extra employees to cover for Muslim employees leaving the line for prayer breaks. Docket No. 360 at 14 (citing PSF ¶ 72). JBS misinterprets EEOC’s position. EEOC asserts that over-crewing is one of several measures that JBS, supervisors could have used to • accommodate Muslim employees. PSF ¶ 72 (citing Resp. to DSF ¶ 72 (stating that JBS schedules breaks at the same time as grade changes, which happens approximately every 20 minutes)). As a result, the fact that over-crewing alone may not provide enough employees to cover for Muslim employees’ prayer breaks'.does not eliminate the possibility that over-crewing, when combined with other measures, may be sufficient to effectuate the unscheduled-break accommodation at the,Greeley plant without undue hardship. ■ •
Second, there is evidence upon which to conclude that staffing levels differed between the plants. See J. Shandley Dep., Docket No. 349-100 at 4, p. 74:11-23. Both plants appear to have had roughly 1500 employees on the B shift during 2008, but the Greeley plant B shift appears to have been staffed with a larger percentage of Muslim employees than the Grand Island plant. Compare Docket No. 330 at 6, ¶ 22 (“433 Muslim employees worked on B shift” at Greeley plant), with Docket No. 330-103 at 7 (finding that 200-300 Muslim, employees worked on the B shift -fabrication side at the Grand Island plant). The Court is not convinced that difference is immaterial to the undue hardship analysis. JBS points out, for example, that the Nebraska court determined that a rolling or staggered meal break to coincide with sundown would create uneven work periods and upset non-Muslim employees. Docket No. 360 at 14. However, a higher percentage of Muslim employees on the Greeley plant B shift may mean a lower percentage of non-Muslim employees upset by-uneven work periods, which is not necessarily legally insignificant to the undue hardship analysis. Cf. Harrell v. Donahue, 638 F.3d 975, 980 (8th Cir.2011) (noting that an accommodation may result in undue hardship “if it causes more than a de minimis impact on co-workers”).
Third, EEOC argues that the CBA in operation at. the Greeley plant, unlike the Grant Island plant’s CBA, had larger time windows in which management could schedule breaks during the B shift. Docket No. 349 at 45. For example, the first break could occur between 5:00 p.m. and 6:00 p.m. at the Grand Island plant,. but between 4:45 p.m. and 6:15 p.m. at.the Greeley plant. Resp. to DSF ¶34. The meal break at the Grand Island plant could take place between 7:30 p.m. and 8:30 p.m., but between 7:30 p.m. and 10:00 p.m. at the Greeley plant. Id. JBS contends that these differences would not allow it greater flexibility to move the scheduled break near sundown and, as a result, have no bearing on the undue hardship' analysis. Docket No. 360 at 13. The Court is not convinced. The possibility of uneven work periods was ■ one the factors the Nebraska court found important in ruling that mass meal breaks placed a greater than de minimis burden on non-Muslim co-workers. Docket No. 330-103 at 39. JBS has greater flexibility to adjust break times at the Greeley plant to address this concern of uneven work periods. JBS had the ability at the Greeley plant to, for example, move the first break to 4:45 p.m. and meal break to 7:30 p.m., which may have resulted in slightly more even work periods. Moreover, the meal break at the Greeley plant was moved to 7:30 p.m. for two days, and the parties dispute whether the move caused any decline in productivity. .PSF ¶¶ 45,- 47. This bears directly on JBS’s claims, that the proposed accommodations would negatively impact non-Muslim coworkers.
Fifth, EEOC argues that the Nebraska case was “premised on transforming a rolling meal break into a mass break át a different time,” implicating additional costs, food safety concerns, and employee objections to the overcrowding of common areas. Docket No. 349 at 46. In contrast, EEOC contends that the Greeley Muslim employees did not request an additional mass break, but instead asked that the normal- rolling meal break be moved to an earlier time during Ramadan-, which, EEOC argues, would not implicate additional costs, food safety concerns, or overcrowding issues. Id. JBS argues that the Nebraska court’s finding concerning the undue hardship imposed by mass meal breaks is nonetheless relevant to this case where it admits EEOC requests only rolling or staggered breaks, but the Court is not convinced. ' '
. It is undisputed that the Nebraska court did not consider evidence concerning the Greeley plant. Docket No. 349 at 45; Docket No. 360 at 15. JBS argues that this fact is immaterial to determining the identity of issues between the two cases because the facts in the two cases are sufficiently identical. Howeyer, because .the Nebraska court did not consider evidence from this cáse, it cannot be said that the Nebraska court “actually and necessarily t determined” the question of whether the proposed accommodations placed upon JBS an undue hardship at the Greeley plant. See Montana, 440 U.S. at 153, 99 S.Ct. 970. As JBS argued in its briefing on its motion for summary judgment in the Nebraska case, “[discovery is ongoing in the Greeley case and, as a result, the Court should not consider events that allegedly occurred at a separate JBS plant as part of the EEOC’s pattern or practice case here.” Docket No. 349-26 at 104. Although the discovery between the two cases may have overlapped to a -limited extent, see Docket No. 330 at 30; Docket No. 349 at 47, the “pretrial preparation and discovery relating to” the Nebraska case cannot “reasonably be expected to have embraced” the issues related to issue of undue hardship at the Greeley plant. See B-S Steel, 439 F.3d at 663.
Although both cases involve application of the same rule of law and involve claims that are closely related, JBS has failed to establish that the factual differences between this case and the Nebraska case are legally- insignificant and the Court further finds that the balance of considerations weighs against finding that the identity of issue. element is satisfied. Cf. Dodge v. Cotter Corp., 203 F.3d 1190, 1198 (10th Cir.2000). (“the Boughton trial did not resolve whether the same released contaminants in whatever directions or forms or times amounted to negligent conduct as to each Dodge plaintiff with a clear indication the parties intended to- be bound for all future proceedings by that finding”),
b. Opportunity to Litigate
EEOC argues that it was not-permitted to present' evidence related to the Greeley plant in the Nebraska case and was therefore denied a full and fair opportunity to litigate the undue hardship issue with respect to the Greeley plant. Docket No. 349 at 48. Because the Nebraska court did not consider evidence related to the Greeley plant — -an outcome which JBS appears to have advocated for, see Docket No. 349-26 at 104 — and because discovery in this case and the Nebraska case did not take place simultaneously, EEOC’s ability to litigate the undue hardship issue with respect to the Greeley plant was significantly limited. See Murdock, 975 F.2d at 689. JBS fails to address this argument and, as a result, fails to establish this element.
For the foregoing reasons, the Court cannot conclude that EEOC is collaterally estopped from litigating the issue of undue hardship with respect to its reasonable accommodation claim.
2. Retaliation and Discrimirtation
JBS argues that, because EEOC’s retaliation and discrimination claims are based upon a “one-time decision to terminate, en masse, Somali Muslim workers,” such claims are estopped by the Nebraska court’s decision that a one-time event cannot support a pattern or practice claim. Docket No. 330 at 32. EEOC disputes that the termination of Muslim employees at the Greeley plant arose under’ the same circumstances as the termination of Muslim employees at the’ Grand Island plant. Resp. to DSF ¶ 141.
a. Identity of Issues
JBS makes no meaningful attempt to establish the identity of issues element with respect to these claims. First, EEOC points out that, unlike the present case, its discrimination claims in the Nebraska case did not allege discriminatory discipline. Compare Docket No. 330-102 at 6, ¶ 7(d)-(e), with Docket No. 1 at 11. Thus, it does not appear that the Nebraska court considered whether mass terminations and discipline constituted a pattern or practice of discrimination. Second, the retaliation and discrimination claims in the Nebraska case are limited to events taking place “on or about September 18, 2008,” whereas the retaliation and discrimination claims 'in Phase I of this case are comprised of events taking place during Ramadan 2008. Compare Docket No. 330-102 at 6, ¶ 7(d)-(e), with Docket No. 116 at 15. JBS’s argument that the present "claims and the Nebraska case claims cover the exact same time period is therefore incorrect. Third, 'the events giving rise to the termination of Muslim employees are different in each case. JBS appears to have recognized this at one point, arguing to the Nebraska court that EEOC should not be permitted to introduce evidence of events taking place at the Greeley plant. See Docket No. 349-26 at 122 (“JBS adamantly refutes that the events in Greeley were under ‘the same circumstances’”). In the Nebraska case, for example, 150 ÍMuslim employees refused to report for work on September 15,2008 and a large group again refused to report for work on September 16. Docket No. 330-103 at 22. It appears the Muslim employees returned to work on September 17,- but staged a protest in the cafeteria on September 18. Id. at 24-25. The 70-80 Muslim employees who left the plant that night were terminated. Id. at 26. In this case, EEOC asserts that, on September 5, 2008, JBS managers ordered 200 Muslim employees to leave the plant — the Muslim employees did not leave of their own accord. PSF ¶ 94. Muslim employees who did not sneak back into the plant were suspended for Monday, September 8, which JBS later turned into an indefinite suspension. PSF ¶¶ 97, 99. On Tuesday, September 9, JBS decided that the suspended Muslim employees could return to work; 96 employees who failed to do so were terminated. PSF ¶¶ 100, 102, 106-107; Resp. to DSF ¶ 143. Thus, whereas JBS appears to have made a single decision to terminate Muslim employees at the Grand Island plant, EEOC’s retaliation and discrimination claim's in the present case are based on multiple decisions to discipline and terminate Muslim employees. JBS does not contend that these factual differences are legally insufficient and the Court finds no reason to so conclude.
As discussed above, the Nebraska court barred evidence of events taking place at the Greeley plant, which means that the Nebraska court cannot have “actually and necessarily determined” the question of whether the events of Ramadan 2008 constituted a pattern or practice of retaliation or discrimination as a matter of law. See Montana, 440 U.S. at 153, 99 S.Ct. 970. Moreover, JBS does not establish that discovery on the Nebraska claims arid Colorado claims overlapped to a significant degree. JBS has therefore failed to establish the identity of issues element and, for the reasons discussed above, the full and fair opportunity to litigate element.
This aspect of JBS’s motion for summary judgment is denied.
C. Religious Accommodation Claim
“Title VII imposes an obligation on the employer ‘to reasonably accommodate the religious practices of an employee or prospective employee, unless the employer demonstrates that accommodation would result in undue hardship' on the conduct of its business,’ ” Thomas v. Nat’l Ass’n of Letter Carriers, 225 F.3d 1149, 1155 (10th Cir.2000) (quoting 29 C.F.R. § 1605.2(b)(1), (2)); see also Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 63 n. 1, 107 S.Ct. 367, 93 L.Ed.2d 305 (1986). It is the collision between an employee’s religious practice and an employer’s neutral work policy that implicates a Title VII failure to accommodate claim, when employees are placed in a position “where they must choose between their religious convictions and them job.” EEOC v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106, 1120 (10th Cir.2013), rev’d on other grounds by — U.S.-, 135 S.Ct. 2028, 192 L.Ed.2d 35 (2015).
The Tenth Circuit has reinforced that, the gravamen of a plaintiffs pattern or practice claim for failure to accommodate is the- unlawful nature of the employer’s pattern or practice. Davoll v. Webb, 194 F.3d 1116, 1148 (10th Cir.1999) (citing Teamsters, 431 U.S. at 360, 97 S.Ct. 1843). This raises the question of how the Teamsters burden shifting framework applies in a Title VII failure to accommodate case such as this. In other words, what burden does the EEOC bear in order to establish the unlawfulness of JBS’s pattern or practice of accommodating the religious practices of its employees? New courts appear to have squarely addressed this question and the parties’ briefs offer little assistance.
JBS concedes for purposes of the present motion that its conduct related to religious accommodations was a pattern or practice, but disputes that such a pattern or practice was unlawful. Docket No. 330 at 33. JBS contends that, in order to carry its burden under Teamsters, EEOC must establish that (1) JBS failed to offer a reasonable accommodation, (2) EEOC’s proposed accommodation is reasonable, and (2) EEOC’s proposed accommodation can be implemented without undue hardship to JBS. Id. at 33-34; Docket No. 360 at 17 n.4. However, in so arguing, JBS cites only individual rights cases. Docket No. 330 at 33-34 (citing Ansonia, 479 U.S. at 66, 107 S.Ct. 367 (deciding whether employee was entitled to individual relief); Abercrombie, 731 F.3d at 1122 (“applying] a version of McDonnell Douglas's burden-shifting approach”)); Docket No. 360 at 17 n.4 (citing Thomas, 225 F.3d at 1155). Moreover, JBS does not provide any authority, and the Court is aware of none, placing the burden of proving the absence of undue hardship on the plaintiff. Cf. 42 U.S.C. § 2000e(j) (stating that employer must reasonably accommodate employee’s religious believes “unless an employer demonstrates” that doing so would cause it undue hardship (emphasis added)). •
EEOC appears to take the opposite position. EEOC recites the McDonnell Douglas failure-to-accommodate framework, acknowledges that it has the initial burden under Teamsters to demonstrate unlawful discrimination, and claims that JBS does not dispute the prima facie case “for failure to provide religious accommodation or existence of a pattern or practice.” Doc