On March 22, 2017, two former Kellogg employees made their appeal to the United States Court of Appeals for the Tenth Circuit after a lower court found insufficient evidence that the two Adventist plaintiffs were treated unfairly when they were fired for failing to work on Sabbath. A decision from the court of appeals, located in Denver, Colorado, is expected in approximately three months.
The United States District Court for the District of Utah granted Kellogg’s motion for summary judgment on the claims for disparate treatment, reasonable accommodation, and retaliation on July 7, 2016. At that time, the court also accordingly denied Richard Tabura and Guadalupe Diaz’s motion for summary judgment.
Tabura and Diaz were both fired in 2012 from their manufacturing jobs at a Kellogg USA, Inc. plant in Utah for missing work on Saturdays as they honored their religious belief to observe Sabbath. In 2011, Kellogg increased production and implemented a new work scheduling program known as “continuous crewing.” This program created four separate, rotating shifts, in which employees were to work approximately two Saturdays a month—26 Saturdays a year. While both plaintiffs made attempts to use paid days off and work swaps with other employees they eventually were assessed too many absence points within a 12-month period and, after what Kellogg describes as “progressive-discipline measures” were exhausted, were terminated.
“The plaintiffs lost at the trial court level,” said Todd McFarland, associate general counsel for the General Conference (GC or world headquarters) of the Seventh-day Adventist Church. “The court said that Kellogg offering the use of their vacation time and swaps was enough. They didn't have to actually eliminate the conflict; they just had to give them the opportunity to do it, and that the fact that there wasn't enough vacation time or enough people to swap with wasn't Kellogg's problem.”
The Office of General Counsel was part of the Tenth Circuit appeal. The appeal argues that the district court erred in holding that an “accommodation” can be legally sufficient even if it does not eliminate the conflict between a work requirement and a religious practice. It also contends that treating the forfeiture of vacation and sick time as a legitimate accommodation is not appropriate.
“It's a ‘cold comfort’ to an Adventist to say, ‘You only have to break half the Sabbaths.’ If you don't have to eliminate the conflict, then that does no good,” said McFarland. “So this [case] is important to people of faith about what's required from employment to accommodate Sabbath.”
For some, the irony is unavoidable. Kellogg, a food manufacturing company, was founded as the Battle Creek Toasted Corn Flake Company in 1906 by Will Keith Kellogg and John Harvey Kellogg. John Harvey, at the time, was a Seventh-day Adventist and director of the Battle Creek Sanitarium, owned and operated by the Adventist Church. The sanitarium’s operation was based on the church’s health principles, which include a healthful diet, regimen of exercise, proper rest, and abstinence from alcohol and tobacco.
According to the Kellogg website, the brothers “changed breakfast forever when they accidentally flaked wheat berry.” Will Keith kept experimenting until he was able to flake corn, creating the recipe for Kellogg’s Corn Flakes. John Harvey eventually turned away from church beliefs, espousing what many believe was a form of pantheism.
The case was argued at the 11th Circuit Court of Appeals by Gene Schaerr of Schaerr Duncan. The case was handled at the district (trial) court by Alan Reinach of the Pacific Union Conference’s Church-State Council along with Erik Strindberg and Matt Harrison of Strindberg & Scholonick.