                                                           FILED
                                               United States Court of Appeals
                   UNITED STATES COURT OF APPEALS      Tenth Circuit

                         FOR THE TENTH CIRCUIT                    May 24, 2018

                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
    JEROME A. CHRISTMON,

         Plaintiff - Appellant,

    v.                                             No. 17-3209
                                           D.C. No. 2:16-CV-02341-CM
    B&B AIRPARTS, INC.,                             (D. Kan.)

         Defendant - Appellee.



                          ORDER AND JUDGMENT *


Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.


         Mr. Jerome Christmon sued his former employer (B&B Airparts,

Inc.) under Title VII of the Civil Rights Act of 1964, claiming

discrimination for failure to accommodate religious practices. Mr.

Christmon is a Hebrew Israelite and regards Saturday as the Sabbath.

Nonetheless, Mr. Christmon was required to work mandatory overtime

*
      We conclude that oral argument would not materially help us to
decide this appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
Thus, we have decided the appeal based on the briefs.

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
shifts on some Saturdays. Because of his beliefs, Mr. Christmon asked to

work his overtime hours on Sundays instead of Saturdays. B&B Airparts

told Mr. Christmon that if he needed time off for religious reasons, he had

to complete a “Request for Time Off form.”

     Mr. Christmon did not submit the form. Instead, he simply stopped

coming to work when he was assigned Saturday shifts. B&B Airparts did

not take any disciplinary action, and Mr. Christmon admits that he was not

required to work on Saturdays. But he remained dissatisfied because he

lost the opportunity to earn overtime hours, which he would have kept if he

had been assigned shifts on Sunday. Mr. Christmon was ultimately fired for

violating B&B Airparts’ sexual harassment policy.

     After the firing, Mr. Christmon sued under Title VII, claiming that

B&B Airparts had discriminated against him by failing to change his

weekend shifts from Saturdays to Sundays. On this claim, the district court

granted summary judgment to B&B Airparts, holding that it had provided a

reasonable accommodation to Mr. Christmon.

     Mr. Christmon appeals, arguing that the district court erred in

granting summary judgment because

          B&B Airparts had submitted an uncertified deposition
           transcript with the summary-judgment motion,

          B&B Airparts had failed to submit any interrogatory responses,
           and

          the record had not shown a reasonable accommodation.
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We reject these arguments. B&B Airparts provided undisputed evidence

that Mr. Christmon’s deposition was certified, no obligation existed to

support the summary-judgment motion with interrogatory responses, and

B&B Airparts provided a reasonable accommodation by allowing Mr.

Christmon to miss his Saturday shifts. For these reasons, we affirm.

I.    Standard of Review

      We review de novo the district court’s grant of summary judgment.

Knopf v. Williams, 884 F.3d 939, 946 (10th Cir. 2018). Summary judgment

is appropriate “if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). In applying this standard, we view the

evidence and all reasonable inferences in the light most favorable to Mr.

Christmon. See Knopf, 884 F.3d at 946.

II.   Evidentiary Issues

      Mr. Christmon argues that the district court erred by (1) relying on

uncertified testimony from Mr. Christmon’s deposition and (2) granting

B&B Airparts’ motion even though it had not been supported by

interrogatory responses. Mr. Christmon’s arguments fail because B&B

Airparts (1) presented undisputed evidence that Mr. Christmon’s deposition

transcript had been certified and (2) was not required to support the motion

with interrogatory responses.


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      Federal Rule of Civil Procedure 30(f)(1) requires that deposition

transcripts be accompanied by a certification “that the witness was duly

sworn and that the deposition accurately records the witness’s testimony.”

Mr. Christmon argues that the district court could not consider his

deposition testimony because B&B Airparts had filed a transcript lacking

the required certification.

      For this argument, Mr. Christmon relies on three opinions from the

Southern District of Ohio: Moore v. Florida Bank of Commerce, 654 F.

Supp. 38 (S.D. Ohio 1986), Morphew v. Lawhon & Associates, Inc., No.

2:10-cv-716, 2011 WL 6122638 (S.D. Ohio Dec. 8, 2011), and Soliday v.

Miami County, No. C-3-91-153, 1993 WL 1377511 (S.D. Ohio Nov. 22,

1993). Reliance on these opinions is misguided because in these cases, the

parties relying on the deposition testimony failed to provide the court with

a deposition certification. Moore, 654 F. Supp. at 41 n.2; Morphew, 2011

WL 6122638 at *2; Soliday, 1993 WL 1377511 at *5 n.4. 1 Here, B&B

Airparts filed the certification when the plaintiffs raised the issue. Because

the certification was filed, the district court did not err in considering the

deposition testimony.


1
      When transcript excerpts are filed, the Southern District of Ohio’s
local rules require the filer to include the certification. S.D. Ohio Civ. R.
7.2(e). No such requirement exists in the District of Kansas’s local rules.
Cf. D. Kan. R. 56.1(d) (requiring attachment of cited deposition excerpts
without mention of the certification).

                                       4
       Mr. Christmon also argues that the district court erred in granting

summary judgment because B&B Airparts had failed to support its motion

with interrogatory responses. But Rule 56 did not require B&B Airparts to

support its motion with interrogatory responses. Thus, Mr. Christmon’s

argument fails.

III.   Reasonable Accommodation

       Mr. Christmon argues that the district court erred in holding that

B&B Airparts had provided a reasonable accommodation. We disagree. The

undisputed evidence shows that B&B Airparts allowed Mr. Christmon to

skip mandatory Saturday shifts after he had explained his religious

concern. This relief from Saturday shifts constituted a reasonable

accommodation, and the district court did not err in granting summary

judgment to B&B Airparts.

       Mr. Christmon bears the initial burden to show a prima facie case of

religious discrimination for failure to accommodate. Thomas v. Nat’l Ass’n

of Letter Carriers, 225 F.3d 1149, 1155 (10th Cir. 2000). Mr. Christmon

must show that he

           has a “bona fide religious belief that conflicts with an
            employment requirement,”

           informed B&B Airparts of this belief, and

           “was fired for failure to comply with the conflicting
            employment requirement.”



                                       5
Id. If Mr. Christmon satisfies his burden, the burden would shift to B&B

Airparts, which would need to

          conclusively rebut an element of Mr. Christmon’s prima facie
           case,

          show the offering of a reasonable accommodation, or

          show an inability to reasonably accommodate Mr. Christmon’s
           religious beliefs without undue hardship.

Id. at 1156. The district court assumed that Mr. Christmon had met his

burden and decided as a matter of law that B&B Airparts’ accommodation

had been reasonable. We agree.

     “‘Accommodate . . . means . . . allowing the plaintiff to engage in

[his] religious practice despite the employer’s normal rules to the

contrary.’” Tabura v. Kellogg USA, 880 F.3d 544, 550 (10th Cir. 2018)

(quoting EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2032

n.2 (2015) (omissions in original)). But a reasonable accommodation does

not necessarily spare an employee from any resulting cost. Pinsker v. Joint

Dist. No. 28J, 735 F.2d 388, 390–91 (10th Cir. 1984). Thus, the

accommodation may be reasonable even though it is not the one that the

employee prefers. Id. at 390.

     The undisputed evidence shows that

          B&B Airparts required its employees to work overtime shifts
           on Saturdays when scheduled,




                                      6
          before informing his supervisor of his need for religious
           accommodation, Mr. Christmon had been disciplined for failing
           to appear for a Saturday shift, and

          once Mr. Christmon had told his supervisor about the conflict
           between his religious beliefs and the Saturday shifts, B&B
           Airparts allowed Mr. Christmon to skip Saturday shifts with no
           disciplinary consequences.

See R. at 141 (deposition testimony of Mr. Christmon stating that B&B

Airparts “basically just allowed me to not come in on my scheduled

Saturdays”).

     Though Mr. Christmon requested an opportunity to make up his

overtime hours on Sunday, Title VII did not require B&B Airparts to offer

Mr. Christmon’s preferred accommodation. B&B Airparts’ accommodation

allowed Mr. Christmon to avoid the conflict with his religious beliefs even

if he lost the opportunity for overtime. See Ansonia Bd. of Educ. v.

Philbrook, 479 U.S. 60, 70 (1986) (“[U]npaid leave eliminates the conflict

between employment requirements and religious practices by allowing the

individual to observe fully religious holy days and requires him only to

give up compensation for a day that he did not in fact work.”); Pinsker v.

Joint Dist. No. 28J, 735 F.2d 388, 391 (10th Cir. 1984) (“Defendant’s

policy, although it may require teachers to take occasional unpaid leave, is

not an unreasonable accommodation of teachers’ religious practices.”). 2


2
     Mr. Christmon cites three consent decrees to support his position.
Consent Decree, EEOC v. United Parcel Service, Inc., No. 2:12-cv-07334-

                                     7
Thus, the district court did not err in deciding that B&B Airparts had

provided Mr. Christmon with a reasonable accommodation.

IV.   Conclusion

      We conclude that

          the district court did not err in considering Mr. Christmon’s
           deposition testimony even though B&B Airparts’ motion had
           not initially included the certification,

          B&B Airparts was not required to support its summary-
           judgment motion with interrogatory responses, and

          the undisputed evidence shows that B&B Airparts provided a
           reasonable accommodation.

Accordingly, we affirm the district court’s grant of summary judgment to

B&B Airparts.

                                   Entered for the Court



                                   Robert E. Bacharach
                                   Circuit Judge




FSH-MAH (D.N.J. Nov. 1, 2013); Consent Decree, EEOC v. Maita
Chevrolet Geo, No. 2:11-CV-03133-MCE-KJN (E.D. Cal. Sept. 25, 2013);
Consent Decree, EEOC v. Boca Grp., LLC, Nos. 11-CV-80825-
RYSKAMP/VITUNAC & 12-CV-80172-RYSKAMP/VITUNAC (S.D. Fla.
Mar. 9, 2012). As negotiated documents lacking legal analysis, these
consent decrees do not constitute persuasive authority.

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