robinson reply final - · sarah n. mahmood (certified law student) james a. sonne (supervisor)...

No. 17-55976

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Lorette Robinson, Plaintiff-Appellant,

v.

CVS Pharmacy, Inc., Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA HON. CONSUELO B. MARSHALL, DISTRICT JUDGE • CASE NO. 15-8282-CBM-KSX

APPELLANT’S REPLY BRIEF

STANFORD LAW SCHOOL

RELIGIOUS LIBERTY CLINIC ELIZABETH M. KLEIN (CERTIFIED LAW STUDENT) SARAH N. MAHMOOD (CERTIFIED LAW STUDENT)

JAMES A. SONNE (SUPERVISOR) ZEBA A. HUQ

CROWN QUADRANGLE 559 NATHAN ABBOTT WAY

STANFORD, CALIFORNIA 94305 (650) 723-1422

CHURCH STATE COUNCIL

ALAN J. REINACH 2686 TOWNSGATE ROAD

WESTLAKE VILLAGE, CALIFORNIA 91359 (805) 413-7398

ATTORNEYS FOR PLAINTIFF AND APPELLANT

LORETTE ROBINSON

Case: 17-55976, 10/12/2018, ID: 11046040, DktEntry: 29, of 45

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TABLE OF CONTENTS

Page

INTRODUCTION ....................................................................................... 1

I. THE STANDARD OF REVIEW IS DE NOVO, NOT CLEAR ERROR, SINCE THE TRIAL COURT RULED AS A MATTER OF LAW AND THERE WERE NO STIPULATED FACTS ............. 3

II. THE ABERCROMBIE-HELLER FRAMEWORK, AND NOT MCDONNELL DOUGLAS, GOVERNS THIS CASE ...................... 5

III. CVS ILLEGALLY DISCRIMINATED AGAINST ROBINSON WHEN IT DENIED HER A FULL-TIME POSITION BASED ON HER NEED FOR SABBATH ACCOMMODATION ................. 8

A. Robinson established a prima facie case of disparate treatment based on religious non-accommodation ................. 8

B. CVS did not reasonably accommodate Robinson where she had a right to the full-time position by seniority ........... 13

C. Accommodating Robinson in the full-time position would not have resulted in undue hardship ......................... 19

IV. AT A MINIMUM, THIS COURT SHOULD REVERSE AND REMAND FOR FACTFINDING ON THE REASONABLENESS OF THE PART-TIME ALTERNATIVE ..... 21

A. Title VII and FEHA require more than merely initiating any accommodation efforts ..................................................... 21

B. The reasonableness of an accommodation is itself a question of fact to be decided by a factfinder ........................ 22

C. The district court disregarded undisputed material facts that bear on reasonableness .................................................. 26

D. CVS is mistaken that Robinson cannot challenge her treatment on reasonableness grounds due to a supposed failure to cooperate in its accommodation ............................. 29


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V. THE ARBITRATOR’S DECISION UNDER THE LABOR CONTRACT IS INAPPLICABLE TO THE APPEALED-FROM RULING ON ROBINSON’S STATUTORY CLAIMS ........ 31

CONCLUSION .......................................................................................... 33


iii

TABLE OF AUTHORITIES

Page Cases

Aleem v. Gen. Felt Indus., Inc., 661 F.2d 135 (9th Cir. 1981) .......................................................... 32, 33

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) .......................................................................... 31, 33

Am. Postal Workers Union v. Postmaster Gen., 781 F.2d 772 (9th Cir. 1986) ............................................................ 2, 21

Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986) .................................................................... 13, 22, 24

Beadle v. Hillsborough Cty. Sheriff’s Dep’t, 29 F.3d 589 (11th Cir. 1994) ................................................................ 25

Bell v. Conopco, Inc., 186 F.3d 1099, 1102 (8th Cir. 1999) .................................................... 32

Brown v. Gen. Motors Corp., 601 F.2d 956 (8th Cir. 1979) ................................................................ 15

Cal. Brewers Ass’n v. Bryant, 444 U.S. 598 (1980) .................................................................. 15, 16, 19

Cal. Fair Emp’t & Hous. Comm’n v. Gemini Aluminum Corp., 122 Cal. App. 4th 1004 (2004) .............................................................. 12

Cook v. Lindsay Olive Growers, 911 F.2d 233 (9th Cir. 1990) ................................................................ 23

Cosme v. Henderson, 287 F.3d 152 (2d Cir. 2002) ........................................................ 2, 22, 27

Covey v. Hollydale Mobilehome Estates, 116 F.3d 830 (9th Cir. 1997) .................................................................. 3


iv

EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015) .................................................................. passim

EEOC v. Convergys Customer Mgmt. Grp., Inc., 491 F.3d 790 (8th Cir. 2007) ................................................................ 23

EEOC v. Maricopa Cty. Cmty. Coll. Dist., 736 F.2d 510 (9th Cir. 1984) .................................................................. 4

EEOC v. Universal Mfg. Corp., 914 F.2d 71 (5th Cir. 1990) .................................................................. 23

EEOC v. UPS Supply Chain Sols., 620 F.3d 1103 (9th Cir. 2010) .............................................................. 23

Eversley v. MBank Dall., 843 F.2d 172 (5th Cir. 1988) ................................................................ 25

Fair Hous. Council v. Riverside Two, 249 F.3d 1132 (9th Cir. 2001) ........................................................ 26, 28

Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317 (2000) ...................................................................... 7, 11

Heller v. EBB Auto Co., 8 F.3d 1433 (9th Cir. 1993) .............................................................. 5, 13

Hudson v. W. Airlines, Inc., 851 F.2d 261 (9th Cir. 1988) ............................................................ 2, 21

Jamil v. Sessions, No. 14-CV-2355, 2017 WL 913601 (E.D.N.Y. Mar. 6, 2017) .. 17, 20, 22

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ............................................................................ 7, 8

McIntosh v. White Horse Vill., Inc., 249 F. Supp. 3d 796 (E.D. Pa. 2017) ...................................................... 9

Metro. Life Ins. Co. v. Parker, 436 F.3d 1109 (9th Cir. 2006) ................................................................ 4


v

Morrissette-Brown v. Mobile Infirmary Med. Ctr., 506 F.3d 1317 (11th Cir. 2007) ............................................................ 25

Nashville Gas Co. v. Satty, 434 U.S. 136 (1977) .............................................................................. 24

Opuku-Boateng v. California, 95 F.3d 1461 (9th Cir. 1996) ................................................................ 21

Peterson v. Hewlett-Packard Co., 358 F.3d 599 (9th Cir. 2004) .............................................................. 6, 7

Pinsker v. Joint Dist. No. 28J, 735 F.2d 388 (10th Cir. 1984) .............................................................. 24

Sanchez-Rodriguez v. AT&T Mobility P.R., Inc., 673 F.3d 1 (1st Cir. 2012) ..................................................................... 24

Soldinger v. Nw. Airlines, Inc., 51 Cal. App. 4th 345 (1996) ................................................ 13, 22, 24, 30

Starsky v. Williams, 512 F.2d 109 (9th Cir. 1975) .................................................................. 4

Tabura v. Kellogg USA, 880 F.3d 544 (10th Cir. 2018) .............................................................. 23

Tepper v. Potter, 505 F.3d 508 (6th Cir. 2007) ................................................................ 24

Tooley v. Martin-Marietta Corp., 648 F.2d 1239 (9th Cir. 1981) .............................................................. 19

Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) ........................................................................ passim

United States v. City of Albuquerque, 545 F.2d 110 (10th Cir. 1976) .............................................................. 24

United States v. City of Cincinnati, 771 F.2d 161 (6th Cir. 1985) ................................................................ 19


vi

Wright v. Universal Mar. Serv. Corp., 525 U.S. 70 (1998) ................................................................................ 33

Yott v. N. Am. Rockwell Corp., 602 F.2d 904 (9th Cir. 1979) ................................................................ 23

Statutes, Regulations, and Rules

29 C.F.R. § 1605.2(e) ........................................................................... 16, 20

42 U.S.C. § 2000e .............................................................................. passim

C.D. Cal. R. 56 ........................................................................................... 28

Cal. Gov’t Code § 12926 .................................................................... passim

Cal. Gov’t Code § 12940 .................................................................... passim

Fed. R. Evid. 201 ....................................................................................... 27

Other Authorities

Black’s Law Dictionary (10th ed. 2014) ................................................... 17

Rosen et al., Federal Employment Litigation (The Rutter Group 2018) ........................................................................ 6

O’Connell et al., Federal Civil Procedure Before Trial (The Rutter Group 2018) ........................................................................ 6


1

INTRODUCTION

In forbidding religious discrimination and defining “religion” to

include both religious beliefs and practices (short of undue hardship),

Title VII not only requires employers to accommodate such practices, it

also treats their non-accommodation as a form of disparate treatment. 42

U.S.C. § 2000e(j); see also Cal. Gov’t Code §§ 12926(q), 12940(l)(1).

Consequently, an employer commits illegal disparate treatment

when it “refus[es] to hire an applicant in order to avoid accommodating a

religious practice that it could accommodate without undue hardship.”

EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2031 (2015).

And although the applicant in Abercrombie was external, nowhere in the

Court’s ruling, nor in the statute, is this protection so limited; indeed, the

Court urged, “the rule for disparate-treatment claims based on a failure

to accommodate a religious practice is straightforward: An employer may

not make an applicant’s religious practice . . . a factor in employment

decisions.” Id. at 2033 (emphasis added). Because CVS denied Robinson

a full-time job due to her need for accommodation, it broke the law.

Furthermore, CVS cannot prove—as it must—that its employment

decision to refuse Robinson the full-time position was justified by the


2

affirmative defense of undue hardship. First, Robinson was entitled to

the job by seniority, so it would not have violated anyone else’s rights for

her to receive it. CVS’s contention that Robinson would have improperly

“bumped” other workers is flat wrong. Second, any variance to the labor

contract’s “open availability” term for Robinson would not have denied

other employees anything to which they were entitled in any event. This

distinction animated the Court’s ruling in Trans World Airlines, Inc. v.

Hardison, 432 U.S. 63, 79-80 (1977), and is exemplified by the union’s

full-throated support of Robinson in arbitration.

At a minimum, this Court should remand for the yet-undone fact-

intensive inquiry into the reasonableness of CVS’s arrangement in lieu

of the full-time position. Here, the question is whether CVS’s alternative

of a part-time position with the opportunity to hunt for hours at other

stores each week “reasonably preserve[d]” the full-time status Robinson

sought in terms of pay, terms, conditions, and privileges, and in a manner

that was not unduly burdensome to her. Am. Postal Workers Union v.

Postmaster Gen., 781 F.2d 772, 776-77 (9th Cir. 1986); Cosme v.

Henderson, 287 F.3d 152, 160 (2d Cir. 2002). And reasonableness in this

context is “essentially” a factual determination. Hudson v. W. Airlines,


3

Inc., 851 F.2d 261, 266 (9th Cir. 1988). Because CVS denied Robinson the

benefits of seniority in the full-time post, cut her guaranteed hours by

forty percent, deprived her of vacation and holiday pay, and forced her to

face significant logistical hurdles to finding hours elsewhere, a jury could

easily find it did not preserve her status in a non-burdensome way. CVS

has not shown why the mere possibility of hours elsewhere or the

difficulty created was a reasonable option as a matter of law.

Finally, CVS invokes the arbitrator’s ruling. But not only does CVS

concede this ruling has no preclusive effect on Robinson’s statutory

claims, any consideration it might receive was a matter for the district

court, which ignored it. And no such consideration can support summary

judgment anyway, as that would involve weighing evidence.

I. THE STANDARD OF REVIEW IS DE NOVO, NOT CLEAR ERROR, SINCE THE TRIAL COURT RULED AS A MATTER OF LAW AND THERE WERE NO STIPULATED FACTS.

As we observed in our opening brief, the district court’s order

granting summary judgment to CVS and denying it to Robinson is

reviewed de novo. Covey v. Hollydale Mobilehome Estates, 116 F.3d 830,

834 (9th Cir. 1997). After all, the district court ruled solely as a matter of

law on the operative questions. First, the court categorically rejected


4

Robinson’s reliance on the Abercrombie disparate-treatment analysis

because that was a failure-to-hire case and, in its view, hers is not. (1 ER

010.) Second, the court rejected Robinson’s accommodation theory

because it determined that CVS made “reasonable accommodations as a

matter of law.” Id.

CVS nonetheless suggests “a district court’s factual determination

that an employer has met its statutory burden to initiate efforts to

accommodate” is reviewed for clear error if based on undisputed material

facts. Appellee’s Answering Brief (“AB”) at 15-16. But the cases CVS cites

demonstrate that clear-error review applies only where the parties

submitted a stipulated set of facts or the lower court actually made

factual findings. See Starsky v. Williams, 512 F.2d 109, 111 (9th Cir.

1975) (reviewing for clear error under “unique” circumstance where the

parties essentially submitted case for trial based on agreed statement of

facts); EEOC v. Maricopa Cty. Cmty. Coll. Dist., 736 F.2d 510, 512-13 (9th

Cir. 1984) (reviewing for clear error based on “a detailed stipulated

record”); Metro. Life Ins. Co. v. Parker, 436 F.3d 1109, 1113 (9th Cir.

2006) (noting district court findings of fact are reviewed for clear error).


5

Here, the parties did not submit a stipulated set of facts. To the

contrary, Robinson disputed many of CVS’s contentions in response to its

separate statement of undisputed facts in support of its motion. (2 ER

166-82); see also post at 28. Nor did the district court make findings of

fact. (See 1 ER 005-11.) Accordingly, the order must be reviewed de novo.

II. THE ABERCROMBIE-HELLER FRAMEWORK, AND NOT MCDONNELL DOUGLAS, GOVERNS THIS CASE.

The proper Title VII framework in this case is the burden-shifting

approach for religious discrimination based on a failure to accommodate

articulated in Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993),

as modified by Abercrombie, 135 S. Ct. at 2032. In sum, Robinson must

show a prima facie case that (1) she held a bona fide religious belief, the

practice of which conflicted with a job requirement; and (2) her need for

accommodation of that conflict was a motivating factor in an actionable

employment decision. See Heller, 8 F.3d at 1438 (requiring these

elements and that the employer knew of the need for accommodation);

Abercrombie, 135 S. Ct. at 2032 (eliminating knowledge factor). The

burden then shifts to CVS to show either that it (1) reasonably

accommodated Robinson, or (2) could not do so absent undue hardship.

Abercrombie, 135 S. Ct. at 2032 & n.1; Heller, 8 F.3d at 1439-40.


6

Unlike a claim based on race or sex discrimination, for example, a

religious disparate-treatment claim may be based on the employer’s

failure to accommodate a religious practice because, unlike these other

classifications, Title VII defines “religion” to include “all aspects of

religious observance and practice, as well as belief, unless an employer

demonstrates that he is unable to reasonably accommodate” them absent

undue hardship. 42 U.S.C. § 2000e(j); see also Cal. Gov’t Code

§§ 12926(q), 12940(l)(1) (similar approach under FEHA); Rosen et al.,

Federal Employment Litigation ¶ 2:610 (The Rutter Group 2018) (noting

“[t]he framework for analyzing Title VII religious discrimination claims

varies slightly” due to the employer’s duty to accommodate).1

1 Indeed, this is why Robinson pled her complaint the way she did. On that note, CVS’s suggestion that Robinson’s complaint precludes her from arguing a failure-to-accommodate theory is mistaken. See AB at 12. Failure to accommodate is not a cause of action that must be pled; rather, it is a theory of liability that applies when a disparate-treatment claim is based on an employer’s handling of an employee’s religious practices, as opposed to her religious identity or beliefs. Abercrombie, 135 S. Ct. at 2033 (noting failure-to-accommodate theory may be raised as a disparate-treatment claim); Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004) (“A claim for religious discrimination under Title VII can be asserted under several different theories, including disparate treatment and failure to accommodate.”). Theories of liability need not be pled in a complaint, provided the other side receives fair notice. O’Connell et al., Federal Civil Procedure Before Trial ¶ 8:601 (The Rutter Group 2018).


7

CVS urges the Court to instead use the burden-shifting framework

from McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973); see AB at

16. But this framework applies only where a plaintiff alleges pretextual

treatment and must prove her claims through indirect evidence, shifting

the burden to the employer to articulate a legitimate, nondiscriminatory

reason for the adverse action. See Peterson v. Hewlett-Packard Co., 358

F.3d 599, 603 (9th Cir. 2004). It has no application here because Robinson

does not allege that CVS used the open-availability term as a pretext to

discriminate against her as a Seventh-day Adventist, nor does she rely

on indirect evidence. Rather, Robinson alleges disparate treatment based

on an admitted failure to accommodate her religious practice in the full-

time position she sought and earned by seniority. See Appellant’s

Opening Brief (“AOB”) at 7-8, 20-23, 27-28.

Indeed, the cases CVS cites for applying McDonnell Douglas all

involved allegations of just the kind of pretextual discrimination not at

issue here. See Peterson, 358 F.3d at 603-05 (applying McDonnell

Douglas to claim that workplace diversity campaign was pretext for

religious discrimination); Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317, 331,

354 (2000) (applying McDonnell Douglas to claim of pretextual age


8

discrimination). Most directly, McDonnell Douglas itself involved a claim

of pretextual race discrimination. 411 U.S. at 802-05. In short, the

McDonnell Douglas framework applies to cases about animus and

pretext, not cases based entirely on an employer’s failure to accommodate

religious practices—where animus and pretext are immaterial.

Notably, neither the district court nor the parties below used or

discussed McDonnell Douglas as applying in this case. (See 1 ER 005-10.)

III. CVS ILLEGALLY DISCRIMINATED AGAINST ROBINSON WHEN IT DENIED HER A FULL-TIME POSITION BASED ON HER NEED FOR SABBATH ACCOMMODATION.

A. Robinson established a prima facie case of disparate

treatment based on religious non-accommodation.

As in Abercrombie, Robinson established a prima facie “disparate

treatment claim[] based on a failure to accommodate” because she was

denied the full-time job due to a conflict between her Sabbath and the

open-availability requirement. 135 S. Ct. at 2033; AOB at 20-23. In

response, CVS makes three arguments: (1) there was no actionable harm

because, like Robinson’s current position, her old job did not guarantee

40 hours, so her status change made her no worse off, see AB at 20-23,

42-43; (2) Robinson was treated the same as anyone else faced with a

conflict with the open-availability provision, see AB at 23-27, 35-39; and


9

(3) Abercrombie’s endorsement of the failure-to-accommodate disparate-

treatment theory does not apply in any event because it was a failure-to-

hire case, see AB at 28-29. CVS is mistaken on all three counts.

First, Robinson does not claim she was wronged when her old job

was eliminated after her store unionized. Rather, she was wronged when

she was passed over for the new full-time position. That position—not

her old job—is therefore the proper focus. As we discussed in our opening

brief, it is well established that the denial of an available job is actionable

under Title VII and FEHA, especially where—as here—that job carried

a guarantee of more weekly hours and better vacation and holiday pay.

See McIntosh v. White Horse Vill., Inc., 249 F. Supp. 3d 796, 800 (E.D.

Pa. 2017) (using full-time status plaintiff was denied, after

implementation of a new policy that modified her old job, as the reference

point for her new status); AOB at 20-23.

CVS claims that while Robinson’s guaranteed hours as a part-timer

are more limited, there is no limit on how many hours she is able to work.

See AB at 21-22. This is preposterous. Like any retail worker, Robinson

is subject to staffing needs in any given week based on factors beyond her

control, like whether other employees are on vacation and whether extra


10

staffing is required during a busy season. (See 3 ER 385-87, Facts 17, 21,

38-41, 43.) This fluctuating demand for staffing is, of course, exactly why

the full-time job with its 40-hour guarantee is valuable, and its denial to

Robinson actionable under Title VII and FEHA.

Second, as for CVS’s supposed equal-treatment defense, see AB at

23-27, 35-39, religious discrimination under Title VII and FEHA

encompasses more than targeting employees for disfavored status.

Rather, because both statutes define “religion” to include the

accommodation of religious practice, religious discrimination includes

failing to make reasonable accommodations in the case of a work-rule

conflict with such practice even though the employer need not

accommodate for a comparable secular reason. See 42 U.S.C. § 2000e(j);

Cal. Gov’t Code §§ 12926(q), 12940(l)(1). CVS’s insistence that Robinson

was not singled out for lesser treatment, and that the open-availability

policy was religion-neutral, is therefore immaterial. In fact, the Supreme

Court rejected precisely this argument in Abercrombie.

Specifically, Abercrombie emphasized that Title VII does not “limit

disparate-treatment claims to only those employer policies that treat

religious practices less favorably than similar secular practices.” 135 S.


11

Ct. at 2034. For although the argument that “a neutral policy cannot

constitute ‘intentional discrimination’ may make sense in other

contexts,” Title VII demands more than “mere neutrality with regard to

religious practices—that they be treated no worse than other practices.

Rather, it gives them favored treatment.” Id. Robinson seeks only the

protection Title VII and FEHA afford all employees—no less and no more.

Third, CVS is mistaken that Abercrombie is inapplicable because it

involved a failure to hire. See AB at 28-29. Properly understood,

Robinson’s case involves a failure to hire in the plainest sense—the

“denial of an available job.” Guz, 24 Cal. 4th at 355 (outlining actionable

employment decisions under Title VII and FEHA). Perhaps CVS means

to say Abercrombie is limited to a failure to employ at all. Not so—

Abercrombie makes clear by its own terms that it applies to the full range

of actionable “employment decisions” under Title VII. 135 S. Ct. at 2033.

Additionally, the logic of Abercrombie dictates its application in any

and all failure-to-accommodate contexts. See 135 S. Ct. at 2032 (“‘Because

of’ in § 2000e-2(a)(1) links the forbidden consideration to each of the verbs

preceding it; an individual’s actual religious practice may not be a

motivating factor in failing to hire, in refusing to hire, and so on.”


12

(emphasis added)). Yes, Abercrombie was a failure-to-hire case, but that

is just the most extreme example of a failure to accommodate, since by

definition a refusal to hire means the employer has refused to make

whatever accommodations the plaintiff needed. Or, as the Court there

stressed, “[f]ailing to hire [because of one’s religious practice] is

synonymous with refusing to accommodate the religious practice. To

accuse the employer of one is to accuse him of the other.” Abercrombie,

135 S. Ct. at 2032 n.2. Put simply, the denial of an available job to avoid

making an accommodation, whether or not it is coupled with an outright

refusal to employ the individual in any capacity, is inherently

discriminatory under Abercrombie.

Finally, regardless of whether Robinson meets the requirements for

a prima facie case under Title VII—she does—CVS concedes she meets

them under FEHA, which requires a known conflict with a religious

practice but not an adverse employment action. See AB at 42-43 (citing

Cal. Fair Emp’t & Hous. Comm’n v. Gemini Aluminum Corp., 122 Cal.

App. 4th 1004, 1011 (2004)). At a minimum, therefore, the burden shifts

to CVS under FEHA.


13

B. CVS did not reasonably accommodate Robinson where she had a right to the full-time position by seniority.

Because Robinson has established a prima facie case, the burden

shifts to CVS to show (1) it reasonably accommodated her; or (2) any

accommodation would have caused undue hardship. Heller, 8 F.3d at

1439-40 (Title VII); Soldinger v. Nw. Airlines, Inc., 51 Cal. App. 4th 345,

369-70 (1996) (FEHA). Here, by definition, CVS failed to accommodate

Robinson by denying her an available job to avoid making an exception

to the open-availability policy. Full stop. See AOB at 20-23.

In response, CVS makes four arguments, none of which hold up on

closer inspection. First, CVS claims that, unlike the employer in

Abercrombie, it accommodated Robinson by offering her an alternate job

and thus discharged its duty under Ansonia Board of Education v.

Philbrook, 479 U.S. 60 (1986), to provide any one reasonable option. AB

at 45. Granted, if Robinson were citing a mere preference for the full-time

post, CVS might be correct (and the inquiry would then rest on whether

the alternative job preserved the status she would otherwise enjoy, see

post at 21-22). But unlike in Ansonia, the opportunity Robinson sought

was not a preference; it was something she had earned by seniority. 479

U.S. at 64-66; see also Hardison, 432 U.S. at 79-80 (rooting analysis in


14

seniority rights); AOB at 24-29, 35-36. CVS did not, therefore, meet its

duty with an alternative. Rather, it denied Robinson’s right. Absent

undue hardship, this cannot stand.

Second, CVS insists Robinson was passed over not because of her

Sabbath observance but her lack of open availability. AB at 27-28. It is

undisputed, however, that Robinson’s religious practice was the only

scheduling conflict that prevented her from being considered “available.”

(3 ER 386, Facts 31-32.) Robinson’s Sabbath observance is therefore one

and the same with her lack of open availability.

In effect, CVS is again raising the red herring of animus. To repeat,

Abercrombie prohibits employers from denying a job opportunity to avoid

the need for religious accommodation regardless of animus. 135 S. Ct. at

2032. Here, CVS denied Robinson the full-time position to avoid making

an exception to the open-availability policy even though it did not set out

to disadvantage her because of her status as an Adventist. See AB at 27-

28. By insisting Robinson’s lack of open availability was the reason she

was passed over, CVS admits it made an “employment decision”—

denying Robinson the full-time job—based on her need for

accommodation; again, precisely what Abercrombie forbids.


15

Put another way, CVS misconceives Robinson’s need. The contested

accommodation is not time off for the Sabbath, but an exception to the

open-availability policy. That CVS has never required Robinson to work

on the Sabbath is not the issue; rather, the issue is whether she could be

denied the full-time position as a result. And on that note, the remaining

question is only whether, as CVS contends, the fact that the open-

availability policy is found in a labor agreement is dispositive.

Indeed, CVS’s third argument that it acted reasonably is that, in its

view, Hardison forbids an exception to the labor-contract term of “open

availability.” AB at 49-51. But although collectively bargained rules that

allocate job opportunities on the basis of seniority have special status

under Title VII even if they disadvantage protected groups, employers

cannot apply this immunity wholesale to non-seniority terms, for that

would “risk[] swallowing up” the core of Title VII’s protections for such

groups. Cal. Brewers Ass’n v. Bryant, 444 U.S. 598, 607-09 (1980); see also

Brown v. Gen. Motors Corp., 601 F.2d 956, 962 (8th Cir. 1979) (clarifying

that Hardison proscribes only accommodations that “compromise other

employees’ contractual seniority rights as secured by a collective


16

bargaining agreement” or result in undue hardship); 29 C.F.R.

§ 1605.2(e)(2) (limiting Hardison to seniority rights); AOB at 24-27.2

CVS offers no argument that open availability is the kind of job

qualification that confers a right as seniority does, but instead seeks to

turn the matter on its head by claiming Robinson “cites no evidence that

under the CBA she was contractually entitled to the full-time post by her

seniority regardless of availability.” AB at 33. Robinson, however, does

not dispute that CVS’s contract-based approach was to assign an

available full-time position to the most senior part-timer with open

availability. (2 ER 079-80.) Rather, her point is that the open-availability

policy must give way in this limited circumstance under Title VII and

FEHA because, unlike seniority, it creates no rights in anyone who meets

its requirements. See AOB at 24-27.

And again, Hardison simply holds that employers are justified in

refusing to breach the seniority terms of a labor contract, not that they

2 CVS appears to argue that the open-availability term might receive special protection because it is “intertwined” with seniority. AB at 32. But courts do not exempt terms that are simply “dubbed ‘seniority’ provisions” despite having no real “nexus” to the system that determines how, when, and to whom seniority accrues and what benefits it provides. Cal. Brewers Ass’n, 444 U.S. at 607-09. Open availability has no such nexus. See id. at 609.


17

may refuse to make exceptions to any contract term across the board,

even where the union would agree to a variance. See Hardison, 432 U.S.

at 79 (stressing union opposition to accommodation in holding for

employer); see also Jamil v. Sessions, No. 14-CV-2355, 2017 WL 913601,

at *12-13 (E.D.N.Y. Mar. 6, 2017) (refusing to extend Hardison to

situation where union might support employee). CVS likewise fails to

address its duty to seek a variance from the union.

Fourth and finally, CVS argues granting Robinson the full-time job

must have jeopardized others’ rights because at least one other person

would have lost out on the position. AB at 50-51. But this misunderstands

the concept of rights. Placing any given employee in one of a finite

number of positions clearly impacts the ability of other employees to

occupy that same position. But rights are affected only if an employee

with a stronger claim to the position—for example, greater seniority—

were to be passed over. See Hardison, 432 U.S. at 68 (noting the

accommodation there would deprive senior employee of right to preferred

shift). Here, it was Robinson who had that right, not anyone else. (2 ER

246:11-19; 3 ER 385-86, Facts 21, 27.) Any supposed bumping by her

would therefore have been entirely just. See Bumping, Black’s Law


18

Dictionary (10th ed. 2014) (“Displacement of a junior employee’s position

by a senior employee.”).

In a new twist, CVS suggests the seniority Robinson accrued before

the union conversion might have been inapplicable for the new full-time

positions, or that more senior employees elsewhere in Robinson’s district

might have had a superior claim to those positions. See AB at 33. This is

not borne out by the record. The labor contract provides that part-time

employees become eligible for full-time openings depending on seniority.

(2 ER 079.) If, therefore, all Vine Street employees’ seniority had reset to

zero on the day the store unionized, there would be no basis on which to

assign the posts that became available. Yet Robinson’s managers told her

she was first in line precisely because of her pre-union seniority. (See 2

ER 246:11-19.) Similarly, if a more senior employee in her store or

elsewhere in the district had bid for that opening, Robinson could not

have been first in line. And even more clearly, the employees who

ultimately got the jobs had less seniority than Robinson—regardless

which stores they came from. (2 ER 248:8-15; 3 ER 386, Fact 33.)


19

C. Accommodating Robinson in the full-time position would not have resulted in undue hardship.

Nor has CVS carried its burden to prove that granting the full-time

position to which Robinson was entitled by seniority would have resulted

in undue hardship. Importantly, while “undue hardship” is defined as

more than a “de minimis” burden for Title VII, Hardison, 432 U.S. at 84,

FEHA requires employers to show “significant difficulty or expense,” Cal.

Gov’t Code §§ 12926(u), 12940(l)(1). CVS fails to address this latter, more

stringent standard. Either way, however, its argument fails.

CVS first claims that making exceptions to a collectively bargained

term is per se undue hardship. See AB at 49-50. Once again, however,

this overbroad reading of Hardison misunderstands the law, as courts

have required employers to make civil-rights exceptions to collective-

bargaining agreement terms in a variety of contexts—including for

religious accommodation. See, e.g., Cal. Brewers Ass’n, 444 U.S. at 607-

09 (allowing Title VII challenge to non-seniority terms); United States v.

City of Cincinnati, 771 F.2d 161, 167-68 (6th Cir. 1985) (same); Tooley v.

Martin-Marietta Corp., 648 F.2d 1239, 1241-43 (9th Cir. 1981) (requiring

religious accommodation of non-seniority term); AOB at 24-27.


20

Additionally, CVS argues that making an exception to the open-

availability term would result in more than a de minimis burden because

it would impact other workers’ rights, per Hardison. AB at 49-51. But

again, CVS’s reliance on Hardison is misplaced, as that case concerned

an employee who sought to illicitly bump senior co-workers. 432 U.S. at

79-80. Here, it was Robinson who was entitled to the position by

seniority, and because open availability does not create employment

rights, assigning her the full-time position would not have implicated

other employees’ rights, much less violated them. And in any event, the

fact that CVS cannot show it sought a variance from the union only

furthers the point that it cannot prove undue hardship, much less as a

matter of law. See Hardison, 432 U.S. at 78-79 (stressing union

opposition to contract variance in ruling for employer); see also Jamil,

2017 WL 913601, at *12-13 (allowing for union-approved exception).

Finally, CVS makes no concrete argument that an exception to the

open-availability term would result in hardship in the form of operational

difficulties or cost. Under Title VII or FEHA, whether an accommodation

would be too difficult or expensive is tied to the employer’s size and

resources. See 29 C.F.R. § 1605.2(e)(1); Cal. Gov’t Code §§ 12926(u),


21

12940(l). It makes sense, therefore, that a massive operation like CVS

cannot make a plausible hardship argument on that ground. (See 3 ER

371-75.)

IV. AT A MINIMUM, THIS COURT SHOULD REVERSE AND REMAND FOR FACTFINDING ON THE REASONABLENESS OF THE PART-TIME ALTERNATIVE.

A. Title VII and FEHA require more than merely

initiating any accommodation efforts.

Whether an employer offered an accommodation at all and whether

that accommodation was reasonable are two distinct inquiries. See, e.g.,

Am. Postal Workers, 781 F.2d at 776-77 (distinguishing these questions).

To be reasonable, an accommodation must of course endeavor to resolve

the conflict between the religious practice and job requirement. See

Opuku-Boateng v. California, 95 F.3d 1461, 1467 (9th Cir. 1996). But

that is not enough. It must also reasonably preserve the employment

status that the employee would enjoy absent the conflict. Am. Postal

Workers, 781 F.2d at 776-77; Hudson, 851 F.2d at 266.3 And, even still,

3 The phrase “reasonably preserve” is somewhat confusing in this context, since “preserve” suggests a comparison to something that came before. Here, the relevant comparator is the full-time position Robinson was denied, so the question is whether CVS’s effort reasonably approximated the status she would have enjoyed as a full-time employee. AOB at 41.


22

accommodations may not be reasonable if they impose a “significant

work-related burden” on the employee without justification. Cosme, 287

F.3d at 160. By relying entirely on the mere initiation of efforts, CVS’s

reasonableness argument fails to address in any detail the “status

preservation” or “work-related burden” parts of the inquiry. Small

wonder, as it loses on both counts. See AOB at 43-53.

And in any event, even if the duty to accommodate encompassed no

more than “initiating” efforts, a jury could find that CVS’s supposed

initiation was incomplete because the company failed to seek a variance

from the union. See Hardison, 432 U.S. at 78-79 (stressing union

opposition to variance); Soldinger, 51 Cal. App. 4th at 373 (stressing

failure to seek variance from union); Jamil, 2017 WL 913601, at *12-13

(same). Again, CVS nowhere addresses the point.

B. The reasonableness of an accommodation is itself a question of fact to be decided by the factfinder.

CVS erroneously contends that a remand on reasonableness is

unnecessary because “any reasonable accommodation by the employer is

sufficient to meet its accommodation obligation.” Ansonia, 479 U.S. at 68;

see AB at 58. Exactly—any reasonable accommodation. The fact-intensive

inquiry therefore remains. After all, “[t]he reasonableness of an


23

accommodation is ordinarily a question of fact.” EEOC v. UPS Supply

Chain Sols., 620 F.3d 1103, 1110 (9th Cir. 2010) (citation omitted).

Consequently, “[t]he trier of fact is in the best position to weigh these

considerations.” Yott v. N. Am. Rockwell Corp., 602 F.2d 904, 908 (9th

Cir. 1979) (citation omitted).4

CVS relies on Cook v. Lindsay Olive Growers, 911 F.2d 233, 241

(9th Cir. 1990), for the proposition that courts can find reasonableness as

a matter of law. AB at 46-47. But Cook involved an employer who went

to herculean lengths to accommodate, including conferring with the

union and ultimately transferring the plaintiff to a position where he

would be paid more. 911 F.3d at 241. Moreover, the issue on appeal in

Cook was not whether the employer acted reasonably, but whether it had

to prove undue hardship as to each and every reasonable option. Id. The

general rule remains: The reasonableness of an accommodation is a fact-

4 This is true not just in the Ninth Circuit but around the country in both the religious and disability accommodation contexts. See, e.g., Tabura v. Kellogg USA, 880 F.3d 544, 555 (10th Cir. 2018) (reversing summary judgment for employer, noting “whether an accommodation is reasonable in a given circumstance is ordinarily a question of fact to be decided by the fact finder”); EEOC v. Universal Mfg. Corp., 914 F.2d 71, 73 (5th Cir. 1990) (“Ordinarily, questions of reasonableness are best left to the fact finder”); see also EEOC v. Convergys Customer Mgmt. Grp., Inc., 491 F.3d 790, 796 (8th Cir. 2007) (affirming jury verdict).


24

intensive inquiry, not a question of law. See Soldinger, 51 Cal. App. 4th

at 370 (noting the inquiry proceeds “case by case” and “[w]hat is

reasonable for one employee may not be reasonable for another”).

In addition to Cook, CVS draws on several other cases for the

purported proposition that accommodations like the one at issue here can

be reasonable. See AB at 47-48. Most of these cases, however, involved

mere “loss of income for the period the employee is not at work” (i.e.,

religious holy days) and held such a loss reasonable because it “has no

direct effect upon either employment opportunities or job status.”

Ansonia, 479 U.S. at 70-71 (quoting Nashville Gas Co. v. Satty, 434 U.S.

136, 145 (1977)); see also Tepper v. Potter, 505 F.3d 508, 514 (6th Cir.

2007); Pinsker v. Joint Dist. No. 28J, 735 F.2d 388, 389-91 (10th Cir.

1984); United States v. City of Albuquerque, 545 F.2d 110, 114 (10th Cir.

1976). Here, by contrast, Robinson lost pay across the board, not just for

hours not worked on the Sabbath. AOB at 44-45.

Perhaps for fear of this distinction, CVS cites two other cases to

suggest that transfers to lower-paying positions—as opposed to mere lost

pay for hours not worked—are reasonable. But those cases depended on

coupling such a transfer with additional accommodations. See Sanchez-


25

Rodriguez v. AT&T Mobility P.R., Inc., 673 F.3d 1, 12-13 (1st Cir. 2012)

(finding transfer reasonable in combination with other accommodation

options, while emphasizing “we need not decide whether either of these

accommodations was reasonable in isolation”); Eversley v. MBank Dall.,

843 F.2d 172, 176 (5th Cir. 1988) (affirming reasonableness of multiple

lower-paying job offers combined with other options).

Lastly, CVS cites cases affirming a finding of reasonableness after

a trial, but these are irrelevant to the question of whether CVS’s proposal

was reasonable as a matter of law. See Morrissette-Brown v. Mobile

Infirmary Med. Ctr., 506 F.3d 1317, 1319 (11th Cir. 2007); Beadle v.

Hillsborough Cty. Sheriff’s Dep’t, 29 F.3d 589, 590 n.1 (11th Cir. 1994).

To be sure, a reasonable accommodation need not spare the

employee any cost at all. But a fact-intensive inquiry is needed before a

court could conclude that CVS’s proposed arrangement did not impose

too great a cost on Robinson in light of her decreased pay; her diminished

benefits; the deprivation of her seniority; the work-related burden

imposed on her in assembling a makeshift schedule and traveling to other

stores; and, perhaps most of all, CVS’s failure to work with the union on

the possibility of a variance. See AOB at 43-53.


26

C. The district court disregarded undisputed material facts that bear on reasonableness.

Even assuming that the reasonableness of CVS’s proposed

arrangement could be decided as a matter of law, the district court failed

to grapple with critical facts bearing on reasonableness, requiring

remand. In ruling on cross-motions for summary judgment, the district

court must consider “the appropriate evidentiary material identified and

submitted in support of both motions, and in opposition to both motions,

before ruling on each of them.” Fair Hous. Council v. Riverside Two, 249

F.3d 1132, 1134 (9th Cir. 2001).

The district court erred when it decided as a matter of law that

CVS’s proposed arrangement was reasonable, despite undisputed facts

bearing on reasonableness in Robinson’s motion. (See 1 ER 005-11; 3 ER

383-88.) It was undisputed, for example, that Robinson has no car; it

could take up to two hours to travel to other stores via public transit; and

Robinson’s Vine Street schedule made it difficult to travel to other stores

before they closed. (3 ER 387, Facts 41, 43.) Moreover, other facts relied


27

on by CVS here, like the distance to other stores, are simply not in the

record. See AB at 9.5

To determine the reasonableness of “accommodating” Robinson by

sending her to scrounge for hours at other CVS locations, it was

necessary, for example, to know (a) how burdensome it would be for her

to cobble together a schedule across multiple stores each week; (b) how

likely it was that extra hours would be available at those other stores;

and (c) how difficult it would be for Robinson to travel there to work extra

shifts. See Cosme, 287 F.3d at 160 (noting that the practical burdens on

the employee factor into reasonableness). Viewing these questions in the

light most favorable to Robinson, as it was required to do on CVS’s

motion, the district court was therefore wrong to conclude that CVS’s

proposed arrangement was reasonable as a matter of law.

CVS also argues that Robinson conceded that both motions could

be resolved as a matter of law and no material facts were in dispute. See

AB at 52 & n.10. But the hearing shows the opposite. When the district

5 On the travel burden, CVS cites Google Maps. See AB at 9. Even if this Court took judicial notice of this information, see Fed. R. Evid. 201, the relevant fact is not the absolute distance to other stores, but the travel time to those stores—an issue far too messy to be dealt with for the first time on appeal, particularly for Los Angeles.


28

court asked whether Robinson agreed that it could find there were no

material issues of fact in dispute, her counsel allowed only that the

undisputed facts were sufficient “for the Court to rule for plaintiff as a

matter of law.” (2 ER 33 (emphasis added).) It is misleading to suggest

Robinson conceded that both parties’ motions could be so decided, or that

she somehow otherwise abandoned her opposition to CVS’s motion on the

fly. And, of course, a party does not concede that an opposing party’s

position may be ruled on as a matter of law by submitting its own motion

for summary judgment. See, e.g., Fair Hous. Council, 249 F.3d at 1136.

Finally, CVS challenges Robinson’s responses to its statement of

undisputed material facts, arguing they did not create a genuine dispute

as to any of the 48 facts asserted. See AB at 5 n.2. But any reasonable

review of Robinson’s filing shows the contrary. (See, e.g., 2 ER 166-82,

Facts 13, 20, 21, 33, 37, 44, 47.) Worse yet for CVS, the reverse is actually

true: CVS filed no response whatsoever to Robinson’s statement of

undisputed facts, admitting all 51 of them. See C.D. Cal. R. 56-2 to -3; (3

ER 383-91, 570 at Dkt. 51, 52). Notably, these facts included that

Robinson, as the most senior employee at Vine Street, was first in line

for the full-time job in question. (3 ER 386, Fact 27.)


29

D. CVS is mistaken that Robinson cannot challenge her treatment on reasonableness grounds due to a supposed failure to cooperate in its accommodation.

Finally, CVS suggests for the first time on appeal that the informal

steps Robinson has taken to pick up hours since it denied her the full-

time position are somehow completely immune from any reasonableness

analysis because they are not identical to what the company offered. See

AB at 59-60. CVS is mistaken once more.

CVS misunderstands the arrangement its own managers proposed

when it claims Robinson rejected that arrangement in lieu of her own

approach for picking up hours elsewhere. In reality, while Robinson was

initially hurt by CVS’s denial of the full-time job, she later implemented

the very arrangement CVS suggested of calling other stores on a weekly

basis and picking up as many extra hours as she could. (See 1 ER 008; 2

ER 247:10-21, 263:18-264:8, 272 ¶ 15, 273 ¶ 16; 3 ER 367-68.)

Additionally, the arrangement CVS proposed was inherently

informal. For although CVS suggests Robinson’s managers had pre-

arranged extra shifts at other stores amounting to a full-time schedule,

the record shows that any such extra shifts were entirely subject to the

weekly needs of other stores and that it fell wholly to Robinson to secure


30

them. See AB at 1, 9-10, 22, 44, 59; (2 ER 263:18-264:3, 265:4-8, 272 ¶ 15,

273 ¶ 16; 3 ER 367-68). It was Robinson’s responsibility to facilitate this

arrangement weekly, and she could pick up extra hours only to the extent

other stores happened to be short-handed and had them available; her

managers would not guarantee a minimum number. (See 3 ER 367-68.)

And while Robinson’s managers suggested three particular stores

for extra hours, nothing in the record indicates she was limited to those

stores. (See 2 ER 263:18-264:8; 3 ER 387, Fact 38.) For that matter, CVS

cites evidence that Robinson could—and did—pick up extra shifts at

other stores even before the unionization, showing its proposed

accommodation was not a special, formal arrangement that had to be

followed to the letter, but rather represented a continuation in the

general ability to pick up extra shifts whenever and wherever they might

be available. See AB at 9 n.3. Robinson should not be faulted for doing all

she could as the sole breadwinner in her family to address the situation,

including seeking extra shifts at additional stores beyond the three CVS

suggested; indeed, the law urges her to have done so. See Soldinger, 51

Cal. App. 4th at 370; (2 ER 273 ¶¶ 16, 22).


31

This Court can, therefore, look to the hours, pay, and benefits

Robinson has in fact received, and the efforts required of her, in analyzing

reasonableness because Robinson’s self-accommodation is precisely what

CVS proposed. And again, a fact-intensive inquiry on remand is needed

on these questions. See AOB at 43-53.

V. THE ARBITRATOR’S DECISION UNDER THE LABOR CONTRACT IS INAPPLICABLE TO THE APPEALED-FROM RULING ON ROBINSON’S STATUTORY CLAIMS.

Nowhere in its answering brief does CVS contend that it asked the

union for a variance from the open-availability requirement, or that it

worked with the union to accommodate Robinson. To the contrary, it is

undisputed that the union filed a grievance under the labor agreement

on her behalf and took it to arbitration. (3 ER 382.) In any event, not only

does the union’s support for Robinson significantly undercut CVS’s

reliance on Hardison for the reasons described above and in our opening

brief, see AOB at 28-29, 52-53, the arbitrator’s ruling is inapplicable here.

As CVS rightly concedes, the arbitrator’s ruling under the labor

contract has no preclusive effect on this statutory proceeding. AB at 56

n.11. CVS argues, however, that this Court should nonetheless afford

“deference” to the arbitrator as a “factfinder” pursuant to Alexander v.


32

Gardner-Denver Co., 415 U.S. 36, 38, 60 & n.21 (1974), which allowed for

the possibility that a district court could exercise its discretion to consider

a non-preclusive arbitration in limited circumstances. AB at 56.

But in making the decision at issue here, the district court nowhere

considered the substance or circumstances of the arbitrator’s prior ruling,

nullifying CVS’s contention on the point now. (See 1 ER 005-11.)

Moreover, any “factfinder” consideration at the summary-judgment stage

would have been inappropriate anyway, as it would constitute an

improper weighing of evidence. See Bell v. Conopco, Inc., 186 F.3d 1099,

1102 (8th Cir. 1999) (rejecting summary-judgment reliance on

arbitration ruling as a violation of district court’s function at that stage),

abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d

1031 (8th Cir. 2011); see also Aleem v. Gen. Felt Indus., Inc., 661 F.2d

135, 137 (9th Cir. 1981) (insisting on de novo trial of Title VII claim

despite prior arbitration).

Finally, even if the arbitrator’s ruling deserved deference—it does

not—it could only be on the question he addressed: whether the labor

contract required CVS to accommodate. (See 3 ER 461.) The decision did

not address whether—notwithstanding the contract—the law required


33

an exception, rendering that decision inapplicable to CVS’s statutory

duty. See Alexander, 415 U.S. at 53 (“[A]n arbitrator is confined to

interpretation and application of the collective bargaining agreement; he

does not sit to dispense his own brand of industrial justice.” (internal

quotation marks omitted)); see also Wright v. Universal Mar. Serv. Corp.,

525 U.S. 70, 79-80 (1998) (distinguishing statutory and contract rights).

As the Court urged in Alexander, “Congress, in enacting Title VII,

thought it necessary to provide a judicial forum for the ultimate

resolution of discriminatory employment claims. It is the duty of courts

to assure the full availability of this forum.” 415 U.S. at 60 n.21; see also

Aleem, 661 F.2d at 137 (frowning on use of contract-based arbitration in

Title VII cases).

CONCLUSION

This Court should reverse and remand with instructions to enter

judgment for Robinson. Alternatively, it should reverse and remand for

a fact-intensive reasonableness inquiry at trial.


34

October 12, 2018 STANFORD LAW SCHOOL RELIGIOUS LIBERTY CLINIC

ELIZABETH M. KLEIN

SARAH N. MAHMOOD JAMES A. SONNE ZEBA A. HUQ

By: s/ James A. Sonne

Attorneys for Plaintiff and Appellant LORETTE ROBINSON


35

CERTIFICATION OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS,

AND TYPE STYLE REQUIREMENTS [FED R. APP. P. 32(g)(1)]

ý 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(g)(1) because:

ý this brief contains 6,987 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f), or

¨ this brief uses monospaced typeface and contains [state the number of] lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 32(f).

ý 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because:

ý this brief has been prepared in a proportionally spaced typeface using MS-Word in 14-point Century Schoolbook font type, or

¨ this brief has been prepared in a monospaced typeface using [state name and version of word processing program] with [state number of characters per inch and name of type style].]

October 12, 2018

s/ James A. Sonne

Date Attorney


36

CERTIFICATE OF SERVICE

I hereby certify that on October 12, 2018, I electronically filed the foregoing APPELLANT’S REPLY BRIEF with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

Signature: s/ James A. Sonne


37

SERVICE LIST (9th Circuit Rule 3-2)

COUNSEL OF RECORD PARTY REPRESENTED James A. Sonne, Esq. Zeba A. Huq, Esq. STANFORD LAW SCHOOL RELIGIOUS LIBERTY CLINIC Crown Quadrangle 559 Nathan Abbott Way Stanford, California 94305-8610 Telephone: (650) 723-1422 Facsimile: (650) 723-4426 [email protected] [email protected]

Plaintiff and Appellant, LORETTE ROBINSON

Alan J. Reinach, Esq. CHURCH STATE COUNCIL 2686 Townsgate Road Westlake Village, CA 91359 Telephone: 805-413-7398 Facsimile: 805-497-7099 [email protected]

Plaintiff and Appellant, LORETTE ROBINSON

Daniel F. Fears, Esq. Eric C. Sohlgren, Esq. PAYNE & FEARS LLP 4 Park Plaza, Suite 1100 Irvine, CA 92614 Telephone: (949) 851-1100 Facsimile: (949) 851-1212 [email protected] [email protected]

Defendant and Appellee, CVS PHARMACY, INC.


38

COUNSEL OF RECORD PARTY REPRESENTED Lauren Robinson, Esq. YOUNG, ZINN & BATE LLP 1150 South Olive Street, Suite 1800 Los Angeles, CA 90015 Telephone: 213-362-1860 Facsimile: 213-362-1861 [email protected]

Defendant and Appellee, CVS PHARMACY, INC.


robinson reply final - · sarah n. mahmood (certified law student) james a. sonne (supervisor)...

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