                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-1897


EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

                Plaintiff – Appellant,

           v.

THOMPSON   CONTRACTING,      GRADING,   PAVING,    AND   UTILITIES,
INCORPORATED,

                Defendant – Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:05-cv-00675-BO)


Argued:   October 23, 2012                  Decided:   December 14, 2012


Before NIEMEYER, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED:     Susan Ruth Oxford, EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Appellant.    Michael Coghlan
Lord, WILLIAMS MULLEN, Raleigh, North Carolina, for Appellee.
ON BRIEF: P. David Lopez, General Counsel, Carolyn L. Wheeler,
Acting Associate General Counsel, Lorraine C. Davis, Assistant
General   Counsel,  EQUAL   EMPLOYMENT OPPORTUNITY   COMMISSION,
Washington, D.C., for Appellant.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      The   Equal        Employment         Opportunity         Commission         (the     “EEOC”)

appeals     the     district        court’s        award        of    summary          judgment    to

Thompson        Contracting,            Grading,              Paving,        and         Utilities,

Incorporated,          in   these    Title         VII       proceedings.          In     September

2005, the EEOC initiated this action in the Eastern District of

North Carolina, alleging that Thompson Contracting had violated

Title     VII     by     failing       to    accommodate             the    Saturday       Sabbath

observance        of    a   former      employee             named    Banayah          Yisrael,    an

adherent of the Hebrew Israelite faith who had been a dump truck

driver    for     Thompson.          The      court          rejected      the    EEOC’s    claim,

concluding        that      Thompson         had       not     breached          its    Title     VII

obligations.           See EEOC v. Thompson Contracting, Grading, Paving,

&   Utils.,     Inc.,       793   F.    Supp.          2d     738    (E.D.N.C.         2011).     As

explained below, we affirm.



                                                  I.

                                                  A.

                                                  1.

      Thompson         Contracting          was    a     construction        contractor         that

provided        grading,          paving,              and      utility          services         for




                                                   2
transportation projects in eastern North Carolina. 1                           During the

relevant     period,     Thompson      operated      on     a    normal   workweek      of

Monday through Friday, but its operations were weather-sensitive

and largely dependent on soil conditions.                          In order to meet

project deadlines and make up for days lost due to bad weather,

Thompson’s        employees     were    frequently          required      to    work    on

Saturday.

       Thompson      Contracting        normally       had        approximately         250

employees, roughly 200 of whom were general equipment operators

who ran various machines and vehicles not requiring a commercial

driver’s license (“CDL”).              Additionally, Thompson usually owned

about eight vehicles whose drivers were obliged to maintain a

CDL:       five dump trucks, a water truck, and two lowboys (flat

trailers that transport heavy equipment).                         A CDL driver is a

specialty     position,       and   Thompson      employed       approximately        eight

CDL drivers.

       It   was    not   uncommon      for       Thompson       Contracting      to    rent

additional dump trucks to assist with large hauling operations.

To meet such needs, Thompson would hire “independent contractor”

dump trucks, which cost from $50 to $100 per hour each.                               On a

       1
       The facts spelled out herein are drawn from the record
compiled in the district court, and they are recited in the
light most favorable to the EEOC, as the nonmoving party. See
EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir.
2005).



                                             3
busy    day,    Thompson    would    utilize     as    many     as        forty-five

independent contractor dump trucks.

                                      2.

       As an adherent of the Hebrew Israelite faith, Mr. Yisrael

observed his Sabbath on Saturday.            Yisrael’s Sabbath observance

required him to refrain from working between sunrise and sunset.

Thompson   Contracting      twice   employed    Yisrael    as    a    dump     truck

driver, hiring him first in June 2004.           During Yisrael’s initial

period of employment, Thompson became aware of his religious

beliefs, scheduled him to work on only one Saturday, and did not

discipline him for his absence on that occasion.                     In September

2004, however, Yisrael tested positive for marijuana and was

terminated.

       In November 2004, Yisrael reapplied for employment as a

dump truck driver and was rehired by Thompson Contracting.                       Jim

Stafford, Thompson’s Director of Operations, decided to rehire

Yisrael after being assured that his drug use was under control.

At that time, Yisrael completed an application indicating his

unavailability for Saturday work.

       On the first Friday after being rehired, Yisrael was asked

to work the following day, December 4, 2004.               Yisrael responded

to Mike Lowe, his immediate supervisor, that he could not work

because    of    his   religious     obligation.          All        of     Thompson

Contracting’s    other     dump   truck    drivers    worked    that       Saturday.

                                      4
Thompson did not use any independent contractor dump trucks, and

Yisrael was not disciplined for his absence.                            Yisrael was absent

again       on    Thursday,      December     9,      2004,       due   to   an   appointment

concerning a veterans assistance issue.                              Although Yisrael had

notified          Lowe     the     day    prior       to     the     appointment       of    his

anticipated         absence,       Yisrael       received      a     verbal      warning    from

Stafford for that absence.

       On Friday, December 17, 2004, Lowe directed Yisrael to work

the following day.                 When Yisrael informed Lowe that he could

not, Lowe responded, “I understand.”                         J.A. 737-38. 2       Yisrael did

not     work       on      Saturday,      December          18,      2004,    but     Thompson

Contracting’s            other     dump     truck          drivers      worked      that    day.

Thompson also hired thirteen independent contractor dump trucks

for that Saturday’s work.                 On Monday, December 20, 2004, Yisrael

received a written warning for his Saturday absence, and he was

suspended for three days.                   The warning specified that “this is

the second week in a row this has happened,” and that the “next

infraction will result in termination.”                        Id. at 907.

       On        Friday,    February       11,       2005,     Lowe     directed      Thompson

Contracting’s dump truck drivers, including Yisrael, to work the

next       day.     All     dump    truck    drivers         save    Yisrael      worked    that


       2
       Citations herein to “J.A. ____” refer to the contents of
the Joint Appendix filed by the parties in this appeal.



                                                 5
Saturday, and Thompson also hired twelve independent contractor

dump trucks.           Due to adverse weather, no dump truck drivers

worked on Monday, February 14, 2005.                          That very day, however,

anticipating that he would be fired for his absence the previous

Saturday, Yisrael filed a charge with the EEOC alleging that

Thompson       had    failed       to     accommodate         his    religious     beliefs.

Yisrael’s anticipation of being fired turned out to be correct.

When    he     reported      for    work        on    Tuesday,      February     15,   2005,

Thompson       terminated         Yisrael’s          employment.        The     termination

notice    specified         that    Yisrael          was   being    discharged     for    his

failure to have regular and dependable attendance.                                 Stafford

advised      Yisrael      that     he    “was    being       terminated    because     [his]

religious schedule conflicted with the company’s work schedule.”

J.A. 1139.

                                                B.

       On September 28, 2005, the EEOC filed its Complaint against

Thompson Contracting in the Eastern District of North Carolina,

alleging       that   Thompson          had   discriminated         against     Yisrael    by

failing      to    accommodate          his   religious       beliefs     and    ultimately

terminating him because of his religion.                            In addition to back

pay,    front      pay,     and    punitive          damages,    the   Complaint       sought

injunctive relief in the form of Yisrael’s reinstatement, plus

an     order      barring     Thompson          from       future   discrimination        and



                                                 6
directing      the     adoption        of    policies       that      would   eradicate        the

effects of its past discrimination.

       Through       subsequent        discovery,          the    EEOC     ascertained        that

another     Thompson          Contracting               employee,        general        equipment

operator Ivan Larios, had been permanently excused from work on

Saturdays      in      order          to    accommodate          his       Saturday       Sabbath

observance.          The     EEOC      also    learned         that    a   small     number    of

Thompson’s general equipment operators possessed CDL licenses,

though    they        were     neither         listed       on      Thompson’s          liability

insurance policies nor trained to drive Thompson’s dump trucks.

       After the close of discovery on April 20, 2007, Thompson

Contracting moved for an award of summary judgment.                                     On March

31,    2008,     the      district         court       granted     the     summary       judgment

request, concluding that Yisrael’s termination was performance-

related     and        identifying           no        evidence       that    Thompson         had

discriminated        on    the    basis       of       Yisrael’s      religion.         The   EEOC

appealed and, by decision of June 25, 2009, we concluded that

the EEOC had made a prima facie showing under Title VII, and

that the evidence presented a genuine factual dispute on why

Yisrael was actually terminated.                         We thus vacated the judgment

and    remanded      for     further        proceedings.           See     EEOC    v.    Thompson

Contracting, Grading, Paving, & Utils., Inc., 333 F. App’x 768

(4th    Cir.    2009).           In    so     doing,      we     observed     that       “summary

judgment might still be proper if Thompson shows that it could

                                                   7
not   reasonably       accommodate       Yisrael’s    religious    needs     without

undue hardship.”         Id. at 772.

      On remand, in late April 2010, the district court ordered

briefing     on    the    reasonable       accommodation     issue.         Thompson

Contracting asserted in its brief, for the first time, that the

EEOC’s claim for injunctive relief was moot because Yisrael was

not eligible to be rehired.              Thompson also filed the declaration

of    a   theretofore         unidentified      witness,   Brandon        Hudson,     a

Thompson vice president.             On July 6, 2010, the EEOC moved to

strike the mootness defense as well as the Hudson declaration.

The EEOC asserted that any evidence flowing from the declaration

was   barred      by   Rule    37(c)(1)    of   the   Federal     Rules    of    Civil

Procedure, which prohibits the use of undisclosed information or

witnesses “unless the failure [to disclose] was substantially

justified or is harmless.”

      On October 18, 2010, the district court entered an order

accepting    Thompson      Contracting’s        mootness   defense    and    thereby

dismissing     the     EEOC’s    claim    for   injunctive      relief.         By   its

order, the court also ruled that the late disclosure of Hudson

as a witness was harmless, and it reopened discovery for sixty

days for the limited purpose of deposing Hudson.

      On November 4, 2010, the EEOC served Thompson Contracting

with an unauthorized new set of discovery requests containing

interrogatories and requests for production of documents.                            On

                                           8
December       2,      2010,     the     EEOC    noticed     Hudson’s         deposition   for

December 7, 2010.                On December 7, Thompson sought a protective

order shielding it from any additional discovery.                                 In support

thereof, Thompson filed another declaration, that of its owner,

Bobby        Ray    Thompson,       Jr.,     indicating          that   the    business     was

“financially unable to perform or complete the performance of

the work or comply with its contractual obligations,” and that

“[a]ll of the Company’s contracts have been assigned to other

contractors.”            J.A. 1406-07.            On April 4, 2011, the district

court       entered     a     protective        order,     concluding      that   additional

discovery would be of minimal benefit and was not worth the harm

it would cause the defendant. 3                       Accordingly, the court closed

discovery          —   depriving       the   EEOC     of    an    opportunity      to    depose

Hudson — and authorized the parties to file additional briefs on

the reasonable accommodation issue.

        On    June      21,      2011,     the    district        court    awarded      summary

judgment to Thompson Contracting.                     Relying in part on the Hudson

declaration, the court determined that Thompson had satisfied

its     obligation          of    providing       a    reasonable         accommodation      by

offering shift-swapping and paid personal leave, and by making


        3
       On March 19, 2012, during the pendency of this appeal,
Thompson Contracting’s board of directors authorized Thompson’s
dissolution, and articles of dissolution were filed with the
Secretary of State of North Carolina on March 23, 2012.



                                                  9
efforts     to   personally           accommodate         Yisrael.             See    Thompson

Contracting,      793     F.    Supp.        2d    at    744-45.          The    court       also

considered and rejected the EEOC’s three proposed accommodations

of Yisrael’s Sabbath observance:                        (1) that Yisrael be excused

from     Saturday      work;        (2)    that     Thompson          create     a    pool     of

substitute drivers; and (3) that Yisrael be transferred to the

position of general equipment operator.                            The court concluded

that   Thompson     had       met    its     burden      of     showing    the       first   two

proposed accommodations would each result in undue hardship, and

that Thompson could not be required to offer the third because

it reasonably believed that Yisrael would have refused such an

accommodation.          Id.    at     745-47.           The    EEOC    timely     noted      this

appeal,    and    we    possess           jurisdiction         pursuant     to       28   U.S.C.

§ 1291.



                                              II.

       We review for abuse of discretion a district court’s denial

of a motion to strike under Federal Rule of Civil Procedure

37(c).     Hoyle v. Freightliner, LLC, 650 F.3d 321, 330 (4th Cir.

2011).     The entry of a protective order by a district court is

also reviewed for abuse of discretion, which “may be found where

‘denial     of    discovery          has      caused          substantial        prejudice.’”

Nicholas v. Wyndham Int’l, Inc., 373 F.3d 537, 542 (4th Cir.

2004) (quoting M & M Med. Supplies & Serv., Inc. v. Pleasant

                                              10
Valley     Hosp.,    Inc.,     981    F.2d     160,    163     (4th    Cir.    1992)      (en

banc)).      We review de novo a district court’s award of summary

judgment, accepting the facts in the light most favorable to the

nonmoving party.         Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir.

2008).



                                          III.

      On     appeal,     the       EEOC   seeks       our      resolution         of    three

contentions:        (1) that the district court erred in denying the

EEOC’s motion to strike the Hudson declaration and in granting

Thompson     Contracting       a    protective        order;     (2)   that       the   court

erred in awarding summary judgment to Thompson; and (3) that the

court      erred    in   dismissing       the      EEOC’s      claim   for     injunctive

relief.      We address those assertions in turn.

                                             A.

                                             1.

      In reviewing the EEOC’s initial contention, we turn first

to   the    district     court’s      October       18,   2010    order      denying      the

EEOC’s motion to strike the Hudson declaration.                               If a party

fails to make the supplemental disclosures required by Federal

Rule of Civil Procedure 26(a) or (e), “the party is not allowed

to use that information or witness . . . unless the failure was

substantially       justified        or   is      harmless.”       Fed.      R.    Civ.    P.

37(c)(1).      The test for evaluating substantial justification and

                                             11
harmlessness was spelled out in Southern States Rack & Fixture,

Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003).

Premised on its Southern States analysis, the court concluded

that       Thompson   Contracting’s    nondisclosure       of    Hudson    and   his

declaration was harmless, and it reopened discovery to permit

the EEOC to depose Hudson. 4          That decision falls well within the

trial court’s discretion.

                                        2.

       The     district   court    thereafter    revisited         its    discovery

ruling,       granting    Thompson     Contracting     a        protective     order

depriving       the   EEOC    of   additional    discovery,         including    an

opportunity to depose Hudson.            In so ruling on April 4, 2011,

the    court     reiterated    that   the    tardy   Hudson       disclosure     was

harmless.       The court then assessed the declaration of Thompson’s
       4
        In our Southern States decision, we identified five
factors that a trial court should utilize in exercising its
discretion   on  whether   a   nondisclosure   of  evidence was
substantially justified or harmless under Rule 37(c):

       (1) the surprise to the party against whom the
       evidence would be offered; (2) the ability of that
       party to cure the surprise; (3) the extent to which
       allowing the evidence would disrupt the trial; (4) the
       importance of the evidence; and (5) the nondisclosing
       party’s explanation for its failure to disclose the
       evidence.

318 F.3d at 597 (observing that first four factors relate to
harmlessness,   and   final   factor   relates   to   substantial
justification). Here, the district court weighed the first four
Southern States factors, assessing surprise, ability to cure,
potential disruption of trial, and importance of the evidence.



                                        12
owner      regarding         the       company’s       financial        difficulties          and

concluded       that,    in       such      circumstances,       Thompson’s          burden    of

responding to additional discovery outweighed the likely benefit

of   such       discovery         to     the     EEOC.         See   Fed.       R.    Civ.    P.

26(b)(2)(C)(iii). 5

      When the protective order was entered, this case had been

pending for more than five years.                      Thompson Contracting was then

in   the    process      of       winding      down    its     business     and      no   longer

employed     several         of    its      witnesses.         Meanwhile,     the     district

court had dismissed the EEOC’s claim for injunctive relief, and

its back pay claim was worth less than $6000.                                 Additionally,

little     of    the    information            offered    by    Hudson      was    new.       For

example,        Hudson’s      assertion         that     an    unused    dump     truck      cost

Thompson     $520      per    day      in    contract     revenue       simply     supplied     a

figure for Stafford’s deposition testimony that an idle truck

resulted        in   lost     revenue.           Indeed,       the   only    new     items     of


      5
        Pursuant to Rule 26 of the Federal Rules of Civil
Procedure, a court may limit discovery if it determines that

      the burden or expense of the proposed discovery
      outweighs its likely benefit, considering the needs of
      the case, the amount in controversy, the parties’
      resources, the importance of the issues at stake in
      the action, and the importance of the discovery in
      resolving the issues.

Fed. R. Civ. P. 26(b)(2)(C)(iii). On this record, the district
court weighed each of those factors prior to its entry of the
protective order.



                                                 13
information in the Hudson declaration were his assertions that

all new dump truck drivers at Thompson were required to train

for one week, at a cost to Thompson of $11-$12 per hour ($440-

$480 for forty hours), and that “[d]uring Yisrael’s second term

of employment, Thompson welcomed substitutions of drivers for

work days that fell on a driver’s Sabbath.”                              J.A. 1209.      Neither

assertion —        if    true       —    is   essential        to    our       conclusion    that

summary    judgment          was    appropriate.             Put    simply,       the    limited

amount     of    new     evidence         offered       by     Hudson,          considered       in

conjunction      with        the    relatively        minor        sum    that    remained       in

controversy and the decline of Thompson’s business, support the

proposition that the district court did not abuse its discretion

in entering the protective order.

                                               B.

        We thus proceed to the EEOC’s contention that the district

court    erred     in    making         its   summary    judgment          award,       which    we

assess de novo.              Pursuant to Title VII, it is unlawful for an

employer     “to    fail       or    refuse      to     hire       or     to    discharge       any

individual, or otherwise to discriminate against any individual

with     respect        to    his       compensation,          terms,          conditions,      or

privileges of employment, because of such individual’s . . .

religion.”       42 U.S.C. § 2000e-2(a).                     Religion is defined, for

Title VII purposes, as “all aspects of religious observance and

practice, as well as belief, unless an employer demonstrates

                                               14
that he is unable to reasonably accommodate to an employee’s or

prospective employee’s religious observance or practice without

undue hardship on the conduct of the employer’s business.”                                 Id.

§ 2000e(j).

       In the first appeal in this case, we determined that “the

EEOC    proffered        sufficient     evidence    of    a    prima      facie     case    of

religious      discrimination        by     Thompson.”        Thompson        Contracting,

333 F. App’x at 770.             When a plaintiff has established a prima

facie    case     of    religious     discrimination          under    Title      VII,     the

burden of proof shifts to the employer to “demonstrate either

(1)     that      it     provided     the      plaintiff        with      a     reasonable

accommodation for his or her religious observances or (2) that

such accommodation was not provided because it would have caused

an undue hardship — that is, it would have ‘result[ed] in more

than a de minimis cost to the employer.’”                           EEOC v. Firestone

Fibers    &     Textiles      Co.,    515    F.3d   307,      313     (4th      Cir.   2008)

(alteration       in     original)      (quoting    Ansonia         Bd.    of     Educ.     v.

Philbrook, 479 U.S. 60, 67 (1986)).                 Although the two prongs of

Firestone are “interrelated,” Judge Wilkinson therein explained

our     holding        that   “the    ‘reasonably        accommodate’         and      ‘undue

hardship’ inquiries [are] separate and distinct.”                             Id. at 314.

The    district        court’s   most     recent    summary      judgment         award    to

Thompson Contracting was based on its conclusion that Thompson

had satisfied both of the Firestone prongs.                     We are satisfied to

                                             15
affirm     on    the     undue      hardship          prong     only,       rendering     it

unnecessary to reach the reasonably accommodate prong.

      In   the    summary     judgment      proceedings,            the     EEOC    proposed

three accommodations, namely, that Thompson Contracting excuse

Yisrael from Saturday work, create a pool of substitute drivers,

or    transfer    Yisrael      to    the     position          of     general      equipment

operator.        The district court rejected the first two of the

EEOC’s proposed        accommodations        after       concluding         that    Thompson

had satisfied its burden of showing that each would result in an

undue hardship on the conduct of Thompson’s business.                              The court

then concluded that Thompson was not required to offer the third

proposed    accommodation         because        it     reasonably          believed    that

Yisrael would refuse such an offer.                     For the reasons set forth

below, we agree.

                                            1.

      First,     in    asserting     that    Yisrael          could    be    excused    from

Saturday    work,      the   EEOC    points      to     Ivan    Larios,       the    general

equipment operator for Thompson Contracting who was not required

to work on Saturdays.            When dump truck drivers were needed on a

Saturday, however, it was not uncommon that all of Thompson’s

dump truck drivers were deemed essential.                      On February 12, 2005,

the      specific       absence       immediately              preceding           Yisrael’s

termination, Thompson was compelled to hire thirteen independent

contractor dump trucks.             Operating one of its own dump trucks

                                            16
cost Thompson around $100 per day, while hiring an independent

contractor dump truck cost much more, $50 to $100 per hour.                           And

when one of Thompson’s trucks was idle, Thompson was unable to

charge for its use, thereby losing revenue.                    Such a situation is

readily distinguishable from that of Larios who, as one of about

200 general equipment operators for Thompson, could be readily

excused from Saturday work.

        The EEOC also argues that Thompson Contracting could do

without Yisrael for Saturday work because such work occurred

infrequently.           The     EEOC     emphasizes    that,     during       Yisrael’s

eleven-week second period of employment, Thompson scheduled only

three Saturday work sessions.                  That fact would not lessen the

burden on Thompson, however, on a Saturday when all of its dump

truck drivers were needed.               At such times, any work left undone

by     Yisrael’s      idle    truck    would     necessarily     be    completed       by

Thompson’s       other        drivers,     or     by   the     hired      independent

contractors, or not at all.                 Mandating that Thompson’s other

dump truck drivers pick up the slack caused by Yisrael’s absence

from    work     is   an     unacceptable       alternative,    in     that    we    have

recognized that “an employer is not required to accommodate an

employee’s religious need if it would ‘impose personally and

directly    on     fellow     employees.’”        Firestone,     515    F.3d    at    317

(quoting Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1021

(4th Cir. 1996)).            If Yisrael’s work was to be performed by the

                                           17
independent contractor dump trucks, it would cost substantially

more than Yisrael’s labor.      And even if Yisrael’s unfinished

work was made up during the following week, Thompson would lose

contract revenue for any Saturday that Yisrael’s dump truck sat

idle.   Put simply, we agree with the district court that

     [c]ommon sense dictates that either Thompson hired at
     least one of the independent contractors to make up
     for Yisrael, the drivers worked harder to make up for
     his absence, or a combination of both. Guaranteeing
     every Saturday[] off for Yisrael would inevitably
     result in an undue hardship to Thompson.

Thompson Contracting, 793 F. Supp. 2d at 745.       As a result, the

district court did not err in concluding that excusing Yisrael

from Saturday work would impose more than a de minimis cost on

Thompson, resulting in an undue hardship on the conduct of its

business.

                                2.

     Second, the EEOC contends that Thompson Contracting failed

to satisfy its burden of showing that the EEOC’s second proposed

accommodation   —   securing   an    alternate   driver   from   among

Thompson’s other employees — would result in a cost that was

more than de minimis.   In rejecting that proposal, the district

court correctly observed:

     The EEOC’s proposed substitute driver system would
     utilize either existing drivers or insure additional
     drivers. Substituting existing drivers, however, does
     little to address Thompson’s difficulties.    On every
     Saturday that Yisrael was asked to work, Thompson also
     had all of its other three dump truck drivers working.

                                18
     Besides the dump truck drivers, Thompson only had four
     other licensed and insured CDL drivers, all of which
     could also drive a dump truck.        On at least two
     occasions, December 3rd and 17th, Thompson was already
     using all these available insured CDL drivers when
     Yisrael could not work.    Thus, substituting existing
     drivers for Yisrael is not a reliable solution.

Thompson Contracting, 793 F. Supp. 2d at 746 (footnote omitted).

     Notably, the EEOC takes no issue with the foregoing factual

recitation.      It    instead    argues      that    there      were    available

substitute     CDL    drivers     on    Saturday,         February      12,   2005.

Recognizing that an alternate dump truck driver would not always

be available from within the ranks of Thompson Contracting’s CDL

drivers, the EEOC suggests that Thompson could have secured a

substitute from among the small number of its general equipment

operators who possessed a CDL.               Those employees, however, had

not been hired as CDL drivers, were not identified on Thompson’s

liability insurance policies, and had never driven Thompson’s

dump trucks.     In order for them to serve as proper substitutes

for Yisrael on intermittent Saturdays, they would need to be

recruited, trained, and qualified for the company’s liability

insurance,    plus    pass   a   road   test.        As    the   district     court

recognized in this regard,

     [t]hese extra costs would make little sense merely to
     provide an occasional substitute driver for another
     worker. Moreover, makeup days are inherently on short
     notice, so Thompson would need to have several such
     substitute drivers to ensure one would be available
     when needed.


                                        19
Thompson         Contracting,           793    F.    Supp.       2d    at    746.          In    these

circumstances, we agree with the district court that creating a

pool of substitute drivers would impose more than a de minimis

cost on Thompson, and would therefore impose an undue hardship

on the conduct of its business.

                                                    3.

       Finally, the EEOC proposes — as its third alternative —

that    Thompson        Contracting           could       have    accommodated      Yisrael          by

transferring him to the position of general equipment operator.

That accommodation was first proposed by the EEOC in response to

Thompson’s initial motion for summary judgment, that is, prior

to     the     first     appeal.              The     only       record      support       for      the

proposition that Yisrael might have accepted such a transfer is

in   his affidavit            of    June      18,    2007,       filed      post-discovery,          in

which     he      asserts      that       he    “would       have        accepted      a        general

equipment operator position had it been offered.”                                   J.A. 1203.

In   rejecting         that    proposed         accommodation,            the   district          court

declined       to    credit        Yisrael’s        affidavit         assertion,    finding          it

contrary to his deposition testimony of December 11, 2006.                                          The

court    also       concluded       that       Thompson      was      not    obliged       to     offer

Yisrael      a    transfer         to    general         equipment     operator     because         it

reasonably believed that such a transfer would be refused.                                           On

appeal, the EEOC maintains that the court erred in disregarding



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Yisrael’s affidavit and in concluding that Thompson reasonably

believed that Yisrael would have rejected a transfer.

       In this Circuit, it is settled that a conclusory affidavit,

conflicting with an earlier deposition, is not alone sufficient

to create a triable issue of fact.                       Evans v. Techs. Applications

& Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996) (citing Rohrbough

v. Wyeth Labs., Inc., 916 F. 2d 970, 975 (4th Cir. 1990) (“A

genuine issue of material fact is not created where the only

issue    of    fact    is    to       determine       which   of     the    two   conflicting

versions      of    the     plaintiff’s          testimony     is    correct.”        (internal

quotation      marks      omitted))).              Here,    the    record      reflects      that

Yisrael       had    twice       sought      and      specifically         applied    for    the

position of dump truck driver with Thompson Contracting.                                In his

deposition, Yisrael again confirmed that he preferred driving

the dump truck over other duties, stating that he was “hired as

a dump truck driver, and that’s what I expected to do.”                                      J.A.

536.      Notably,        Yisrael          was   never     directly       asked   during     his

deposition         whether       a    transfer      to     general       equipment    operator

would have been accepted, as he later asserted in his affidavit.

It is thus arguable that Yisrael’s deposition testimony and his

affidavit are not in irreconcilable conflict.

       Assuming the veracity of the Yisrael affidavit, however, we

are    satisfied      —     as       was   the   district      court       —   that   Thompson

Contracting         was     not       obliged       to     offer     a     transfer     as     an

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accommodation.       That Yisrael might have accepted a transfer does

not resolve this appeal in favor of the EEOC, because it is

clear from the record that Thompson reasonably believed that

Yisrael    would     not   have    agreed      to     change    positions.         Lowe,

Yisrael’s     immediate     supervisor          and    Thompson’s           Director    of

Production, explained that “[i]f you asked [Yisrael] to get out

of the truck to pull string or to shovel a little curb, he would

have a lot of mouth,” and he would make comments to the effect

of “‘I’m not a shovel person.’”                J.A. 1104.      Lowe specified that

Yisrael “thought he was a truck driver and that was all,” and

that Yisrael “would just moan and complain all of the time if he

wasn’t driving a truck.”            Id.        Accepting the evidence in the

light most favorable to the EEOC, it is clear that Thompson

reasonably    believed      that    Yisrael         would   not      have    accepted    a

transfer to general equipment operator.                     Furthermore, Thompson

was not required to offer Yisrael an accommodation that, on the

basis of his actions, the company reasonably believed would be

refused.     See Wisner v. Truck Cent., 784 F.2d 1571, 1574 (11th

Cir. 1986) (“The concept of accommodation does not require the

employer to tender employment arrangements that, based on the

employee’s     own     actions,      it     reasonably         believes        will     be

refused.”).

     Put    succinctly,     Thompson      Contracting          was    not    obliged    to

offer Yisrael a transfer to general equipment operator, and it

                                          22
has satisfied its burden, under the undue hardship prong of our

Firestone decision, of showing that the EEOC’s other proposed

accommodations would have resulted in more than a de minimis

cost to Thompson, causing an undue hardship on the conduct of

its   business.   In   these   circumstances,   each   of   the   EEOC’s

proposed accommodations must be rejected. 6



                                 IV.

      Pursuant to the foregoing, we affirm the judgment of the

district court.

                                                              AFFIRMED




      6
        In light of our endorsement of the district court’s
summary judgment award, we need not reach the EEOC’s contention
that the court erred in dismissing its claim for injunctive
relief.



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