DENVER – The Equal Employment Opportunity Commission (EEOC) filed a motion to impose sanctions against JBS USA, a unit of São Paulo, Brazil-based JBS SA, for losing or destroying evidence in a religious discrimination and retaliation case.
In a statement, JBS USA denied any wrongdoing. “The company is confident that no documents relevant to the case have been lost or destroyed,” a spokesperson for the company said, “and its lawyers will be responding to the EEOC’s motion.”
In the original lawsuit, which was filed in 2010, the EEOC claims JBS refused to allow Somali Muslim employees to pray according to their religious beliefs. The lawsuit also claims that the company retaliated against Muslim employees by disciplining them or firing them when they requested their evening break be moved so that they could break their fast and pray closer to sundown during Ramadan in 2008. Ramadan is a holy month in the Islamic faith which requires daytime fasting.
Now, the agency is alleging that JBS USA lost or destroyed documents relevant to the long-running litigation.
Since at least Feb. 3, 2009, JBS has taken the position that allowing prayer breaks for Muslim employees would cause production downtime and slowdown,” the EEOC said in its motion for sanctions. “Not until the end of 2016, when discovery was reopened, did the EEOC learn about daily records that track such information — “Down Time Reports” and “Clipboards.” By 2016, however, JBS had lost or destroyed more than six years of records, including all the records from 2008 to 2011 with the exception of a handful of records from 2008 and 2010 it produced last Friday, June 30, 2017.”
Because JBS failed to preserve the records of actual downtime and slowdowns, the EEOC argued, the agency will be unable to effectively challenge that testimony while JBS “…can freely offer such testimony without fear of impeachment through record of actual downtime.”
The EEOC concluded that “JBS concealed the existence of documents and its destruction appears, at the very least, grossly negligent, or more likely, deliberate.”
As punishment for the alleged destruction of evidence, the EEOC is requesting the court to prevent JBS from arguing that accommodating Muslim employees’ prayer requests results in production slowdown or downtime. Second, JBS should not be allowed to enter into evidence any of the records produced on June 30. “Defendant should not be allowed to rely on evidence that it concealed from the EEOC throughout six and a half years of discovery,” the EEOC argued.
Finally, the EEOC is asking for an “adverse inference” that the Down Time Reports and Clipboards show that prayer breaks don’t result in slowdowns or downtime in production.
The case is Equal Employment Opportunity Commission v. JBS USA, LLC, 1:10-cv-02103.