Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RELIGIOUS—D. Ariz.: City employee, barred from presenting comparator timecard evidence, denied new trial, (Mar 18, 2025)

By Todd Harrison, J.D.

Timecard evidence did not go to the reasonableness of the city’s accommodation and was only relevant to a disparate treatment claim, a claim that was dismissed prior to trial.

Denying a former City of Mesa employee’s Rule 59 motion for a new trial, a federal district court in Arizona found that precluding the employee from introducing other employee timecards did not result in prejudice to him or in a miscarriage of justice. Because his disparate treatment claim had been dismissed prior to trial, the timecard evidence was irrelevant to his failure to accommodate claim and its introduction would risk adversely affecting the integrity of the jury’s determination on this claim (Smith v. City of Mesa, No. CV-21-01012-PHX-DJH (D. Ariz. Mar. 17, 2025)).

Three Title VII claims were alleged by the employee: (1) failure to accommodate his religious beliefs; (2) disparate treatment and constructive discharge based upon his religion; and (3) retaliation for his request for a religious accommodation. On motions for summary judgment, the court denied the city’s motion as to the failure to accommodate claim but granted its motion as to the disparate treatment and retaliation claims.

Timecard evidence. A jury trial was set on the narrow question of whether the city had unreasonably failed to accommodate the employee’s request for 1.5 days of unpaid leave to attend the “School for Congregation Elders” ministry training. Prior to trial, the city filed a motion in limine seeking to preclude the employee from introducing evidence of other employees’ personnel files and timecards, arguing that such evidence was irrelevant to the failure to accommodate claim and was substantially outweighed by the risk of confusing the issues and wasting the jury’s time. The court precluded him from introducing such evidence at trial.

Despite the court’s ruling, the employee filed a trial memorandum again asserting that other employee’s timecards went to the heart of the issue of reasonable accommodations, signifying his intent to introduce the city’s approval of unpaid time off for three other employees. The court again precluded the employee from introducing such evidence.

On the second day of trial, the employee re-urged the admission of other employee timecards which he characterized as “comparator-type evidence.” The employee argued that the door had been opened by his own counsel who had elicited other employee timecard testimony from a defense witness. The city opposed such a tactic and the court ruled that it was indeed improper for the employee’s counsel to open the door to evidence the court had previously precluded and again reminded counsel that it had already ruled on the matter.

Trial. Proceeding to trial on his failure to accommodate claim, the employee asserted that, as a new hire as a permit technician, he was on a one-year probationary period. He testified that he had never been denied a time-off request when he had enough time saved up to cover his absence and that his manager had approved several of his requests for unpaid time off.

On February 10, the employee requested a week off in March to attend ministry training. However, he was 1.5 days short of paid time off to cover the entire week. His manager did not approve the request for unpaid leave.

After denying the request, the manager discussed with HR the possibility of having the employee work the Friday before his leave to make up for the unpaid time. However, it was determined that doing so would cause the employee to go into overtime.

On February 25, the employee tendered his resignation.

Jury instructions. After hearing the above evidence, the jury was instructed on reasonable accommodations and what might constitute an adverse action. After a short deliberation, the jury returned a verdict in favor of the city. This motion for a new trial followed.

Relevance of employee timecards. On the motion for a new trial, the court assumed the employee was asserting that he was prejudiced by an inability to introduce other employee timecards showing that they had been approved for unpaid time off, and had he been able to introduce such evidence, the jury would have reached a different verdict. The court was not moved.

The employee’s motion included his proffered trial exhibits of two former city employees, both of whom were permit technicians. Unlike the employee, however, both had worked for the city for at least five years. The timecards for both employees included entries for various approvals of unpaid time off.

Although the employee’s manager testified that she approved unpaid time off for other employees, the court failed to see how this was relevant to a failure to accommodate claim. The employee argued that the grant of unpaid time off to other employees but not to him showed that he was treated unfairly. However, whether similarly situated individuals outside of his protected class were treated more favorably was irrelevant to such a claim, said the court.

Irrelevant evidence. According to the court, the employee’s motion misapprehended the narrow issue before the jury. He contended that had he been able to introduce the timecards, it would show the city did not follow its policy of denying unpaid leave to non-probationary employees, and thus the city had acted unreasonably in failing to accommodate his unpaid leave request.

Such an approach ignores the fact that even if the timecards were relevant impeachment evidence, their introduction would risk adversely affecting the integrity of the jury’s determination, said the court, agreeing with the city that the other timecards had the potential to unfairly conflate the dismissed disparate treatment claim or to confuse the jury by interjecting irrelevant evidence into their failure to accommodate considerations. As such, the court refused to grant the employee’s motion because the timecard evidence was irrelevant to his claim.

Weight of the evidence. Next, the court explained that it was tasked with weighing the evidence as it saw it and to set aside the jury’s verdict if it was contrary to the clear weight of the evidence. Here, the court observed that the employee’s only burden was to prove that the city had failed to accommodate his religious beliefs and he had suffered an adverse employment action as a result.

“The clear weight of the evidence was in the City’s favor, with or without the other employee timecard evidence,” said the court.

Adverse employment action. In his testimony, the employee conceded that during his employment he was never demoted, never asked to work in a department that was not encompassed by his position, never lost any employment benefits, and never had his salary reduced. The introduction of other employees’ timecards would do nothing to aid the employee in this regard, explained the court. This testimony alone was sufficient to defeat the employee’s claim of an adverse action by the city.

Reasonable accommodation. Although the court found that the jury likely determined that the employee did not meet his burden of proof on whether he was subjected to an adverse employment action, it nonetheless addressed the city’s burden.

The city had put forth evidence that the employee’s manager had granted the employee all of his leave requests, including for religious reasons, with the exception of the 1.5 days he had requested prior to his resignation. Indeed, the city had produced evidence showing that the employee had taken more than 300 hours of time off. Given the amount of leave he had taken, a reasonable jury could be persuaded that the city’s leave was a reasonable accommodation, said the court.

Finally, continued the court, a reasonable jury could also find the manager’s testimony credible that she never considered the employee’s religion in approving or denying his leave request, noting that the jury could have concluded that the city had met its burden because the employee’s manager had attempted to approve the leave request, but was presented from doing so by the city’s overtime rules. Accordingly, the employee’s motion for a new trial was denied.

The case is No. CV-21-01012-PHX-DJH.

Judge: Humetewa, D.

Attorneys: Christopher Robert Houk (Houk Employment Attorneys) for Aaron Smith. Alexander Joseph Lindvall, Mesa City Attorney’s Office, for City of Mesa.

Cases: Discrimination ReligiousDiscrimination EvidenceDiscovery PublicEmployees ArizonaNews