The Importance of Documentation Can’t be Overstated

by Labor & Employment Group

(402) 341-3070

Robert Antoine was hired by First Student, Inc. as a bus driver for a school district in Louisiana. The terms of his employment were governed by a collective bargaining agreement which provided that employees could exercise their seniority to bid for routes. Those routes which were not awarded pursuant to the bidding system were assigned in reverse order of seniority. Since Antoine was a new hire, his seniority rank was 114 out of 115 total drivers. Consequently, he was assigned another route which had not been selected by more senior employees.

Antoine was a Seventh Day Adventist which mandated he engage in no secular employment between sundown Friday and sundown Saturday. The route assigned to Antoine ended at 5:40 p.m. on Friday night. When daylight savings time ended, the nature of his job and his assigned route would have required him to work after sundown on 8 Fridays between November and January.

Antoine went to his employer to express his concern about not being able to observe his religious beliefs and his employer told him to find someone else with whom to trade routes. One driver offered to take some of Antoine’s Friday routes, however, the company would not accept that accommodation and mandated that any trade would have to be for the entire workweek. When Antoine refused to drive the Friday routes following sundown, his employment was terminated for excessive absenteeism.

Antoine filed suit in federal district court which granted summary judgment to the employer concluding that the bus company tried to reasonably accommodate Antoine by offering to allow him to trade routes or seek an exception from the collective bargaining agreement. On appeal, the United States Court of Appeals for the Fifth Circuit reversed the granting of summary judgment. In so doing, it noted that the legal standard for religious accommodation is that an employer has a duty to accommodate an employee’s religious beliefs so long as it does not require the employer to incur any undue hardship. The court further noted that the United States Supreme Court has held that seniority-based systems which allow for a voluntary trade or swap of a job assignment is a reasonable accommodation. However, an employer does not need to incur more than a “de minimus” cost in attempting to accommodate an individual. Further, the Supreme Court noted that the duty to accommodate requires bilateral cooperation and good faith on the part of the employee to consider options which indeed might be reasonable.

In this case, the Fifth Circuit Court noted that Antoine had claimed the bus company offered to find a substitute for him but failed to follow through. In addition, Antoine claimed the bus company never sought to negotiate with the union for any exception to provisions in the collective bargaining agreement which might have prohibited the trading of routes.

In order to grant a motion for summary judgment, it is required that the court first determine there are no “material factual disputes” so that the court is permitted to apply the law based upon the undisputed facts. In this case, there was a dispute between Antoine and the bus company concerning exactly what sort of reasonable accommodations were offered and what the bus company agreed to attempt to do to try and accommodate Antoine. A union steward who testified in a deposition supported the employee’s version of the events. This is where documentation becomes significant.

The court’s decision does not indicate that the bus company had documented any of its conversations with Antoine nor presented any record of communications to Antoine concerning exactly what he or the bus company would do to try and accommodate Antoine. Further, there is no reference to any communications between the bus company and the union regarding the negotiation of any exceptions to the collective bargaining agreement or other modifications. Absent such documentation, this case became a verbal dispute over the version of events between the witnesses for the employee on the one hand and the bus company on the other. Where such creditability disputes exist, courts almost never grant summary judgment.

Accordingly, this case serves as another good example of why efforts to accommodate employees should be documented and, indeed, communicated in writing to the employee so that there is no dispute as to what actually took place. Documentation of legitimate efforts to accommodate aid the employer and may significantly help to reduce the risk of litigation.

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