author: ROBERT D. POTTER, Chief Judge.

text:
    UNITED STATES of America, v. Louis GUGLIELMI.
    No. C-CR-85-59.
    United States District Court, W.D. North Carolina, Charlotte Division.
    Aug. 23, 1985.

      Debra J. Stuart, Asst. U.S. Atty., Charlotte, N.C., for plaintiff.
    Harold J. Bender, Charlotte, N.C., Bur-ton Sandler, Baltimore, Md., H. Louis Sir-kin, Cincinnati, Ohio, for defendant.
   ORDER

ROBERT D. POTTER, Chief Judge.

THIS MATTER came on for hearing on August 19, 1985 upon Defendant’s Motion to Recuse, filed July 31, 1985. Defendant was represented by Harold Bender and Bert Sandler. The United States was represented by Debra J. Stuart.

Defendant, who is charged with allegedly violating and conspiring to violate certain federal obscenity laws (18 U.S.C. §§ 1465 and 1462), moves the undersigned to recuse himself from this case and to assign this case to another Judge.

Defendant’s motion is brought pursuant to 28 U.S.C. §§ 144 and 455(a). Those sections read, in pertinent part, as follows:

§ 144. Bias or prejudice of a judge
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein....
§ 455. Disqualification of justice, judge or magistrate
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

Section 144 requires the party seeking recusal of a judge to file a timely and sufficient affidavit stating “the facts and the reasons for the belief that bias or prejudice exists____” The affidavit must “be accompanied by a certificate of counsel of record stating that it is made in good faith.” Defendant’s Motion to Recuse is accompanied by an Affidavit by the Defendant and a Certificate of Good Faith signed by one of his attorneys, Harold Bender.

In Marty’s Floor Covering Co. v. GAF Corporation, 604 F.2d 266 (4th Cir.1979), quoting United States v. Nehas, 368 F.Supp. 435, 437 (W.D.Pa.1973), the Fourth Circuit described the usual procedure to be followed under § 144:

“In accordance with the language of the statute, and cases construing it, the following procedure is to be observed. The filing of the affidavit does not itself automatically effect the ouster. Instead the legal sufficiency of the facts alleged (as distinguished from conclusionary assertions) must be passed upon by the target judge. He accepts as true the facts alleged, as on a common law demurrer, and determines merely their legal adequacy. He does not determine the truth of the allegations. In fact no one ever passes upon the truthfulness of the allegations. As stated by Judge Yankwich in Cole v. Loew’s Inc., 76 F.Supp. 872, 877 (S.D.Cal.1948), ‘the truth of the affidavit cannot be adjudicated by the judge involved or anyone else.’ If the target judge finds them legally sufficient, then the disqualification is automatically effected. His determination is an interlocutory ruling reviewable on appeal along with other alleged errors in connection with the trial.”

Section 455(a) does not require an affidavit or motion. Rather, the Judge must recuse himself if “his impartiality might reasonably be questioned.” In Rice v. McKenzie, 581 F.2d 1114,1116-1117 (4th Cir.1978), the Fourth Circuit set out the test to be used in determining whether a judge must recuse himself under § 455(a).

The question is not whether the judge is impartial in fact. It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question his impartiality on the basis of all the circumstances.
* * * * * *
[The question is] whether a reasonable person would have ... a reasonable basis for doubting the judge’s impartiality.
* * * * * *
The inquiry begins and ends with a determination whether a reasonable person would have ... a reasonable basis for doubting the judge’s impartiality.

This test and standard was reiterated in United States v. Carmichael, 726 F.2d 158, 160 (4th Cir.1984): “Every litigant is entitled to be heard by an impartial judge____ The standard to be applied is an objective one, to foster not only actual impartiality but also the appearance of impartiality.” [Citations omitted].

This Court will apply the above standard in determining whether Defendant’s affidavit is sufficient under § 144 or whether § 455(a) requires the Court to recuse itself.

In Shaw v. Martin, 733 F.2d 304, 308 (4th Cir.1984) the Fourth Circuit held that:

Alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966). The nature of the bias must be personal rather than judicial. United States v. Carmichael, 726 F.2d 158, 160 (4th Cir.1984).

Under either § 144 or § 455 “the alleged bias must be ‘personal’, as distinguished from judicial in nature____ The point of the distinction is that the bias ‘must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.’ ” Phillips v. Joint Legislative Com., ETC., 637 F.2d 1014, 1019 (5th Cir.1981).

Defendant “believes and avers” that, the undersigned “has a personal bias against him and the subject matter of this cause.” Defendant’s Affidavit, p. 1. In his Affidavit, Defendant sets forth three factual allegations in support of his belief that this Court is biased:

(3) The facts and reasons for the belief that such personal bias and prejudice exist are as follows:
(a) On January 22, 1985, in United States vs. Wm. C. Johnson, Case No. C-CR-84-101, during the course of sentencing Mr. Johnson for violation of Federal obscenity laws, said Judge Potter stated that he viewed, “... the pornographic business about like I view drug business.” (Page 52—Tran-script of said proceedings).
(b) On March 25, 1985, in United States vs. Everette L. Bronson, Jr., Case No. C-CR-84-98, during the course of sentencing Mr. Bronson for violation of Federal obscenity laws, said Judge Potter stated: “No Sir. I think these tapes and from what I’ve read about them, without even looking at them, they are without a doubt some of the worst things I’ve ever heard of in my life. Perhaps I’ve led a very sheltered life, but there is no question as to the obscenity. I can’t overlook the fact he’s engaged in the type of conduct I don’t think should be allowed in this country.” (Page 40— Transcript of said proceedings).
(c) The within ease involves the alleged violation of Federal obscenity laws which is the very conduct Judge Potter made reference to in the statements set forth in Paragraphs 3(a) and (b) herein.

As noted earlier, in ruling on Defendant’s Motion to Recuse this Court must accept the above-quoted factual allegations [3(a), (b), (c)] as true if the Affidavit is timely and technically correct. Phillips, supra. This Court “must pass on the legal sufficiency of the affidavit, but [it] may not pass on the truth of the matters alleged.” Id.

In his Memorandum in Support of Motion to Recuse, Defendant argues, through counsel, that based on this Court’s statements as set forth in Defendant’s Affidavit, this Court has (1) a personal and extrajudicial bias “against persons charged with the violation of ‘anti-pornography laws’ (2) “expressed a fixed viewpoint on the disposition of the cause of a class of persons of which the Defendant is allegedly a member.” Defendant also alleges that this Court’s “attitude fails to give due regard to the presumption mandated by the First Amendment. See: Roaden v. Kentucky, supra.” Here Defendant’s affidavit is based on statements made by this Court in two other cases: United States v. Johnson, C-CR-84-101; United States v. Bronson; C-CR-84-98. While Defendant’s factual assertions in his affidavit concerning these two cases are assumed to be true, they are limited quotes that do not reveal the entire context in which the statements were made.

In Johnson, the defendant pleaded guilty to violating federal obscenity laws and he stipulated that the material in question was obscene under the appropriate legal standard. The statement made by the Court (“I view the pornographic business about like I do drug business.”) was made during the sentencing phase. The full context of the Court’s statement shows that the Court was referring to the severity with which this Court views obscenity law violations. The full statement made by the Court is as follows:

THE COURT: All right. Thank you, Ms. Stuart. Well, you know, unfortunately, the anti-pornographic laws are just getting started. Mr. Johnson, you may be fortunate or unfortunate—any way you want to look at it—at being the first one up here. I view the pornographic business about like I view drug business. It’s people who get into these things purely for their own gain and they don’t care what happens to anybody else. Drug people come up here, and a lot of people are shocked, as Mr. Bailey said about Mr. Johnson, but they still do it for profit. I was just looking at these figures. His business suddenly came up from eleven or twelve hundred dollars to three thousand, seven thousand, and then six thousand, and then it dropped back to one thousand after he went out of the business. I can’t understand people of this country supporting drug dealers or pornography dealers either one, and I’m glad personally that the administration—and I hope the next administration, whoever it is, will continue to enforce these laws. Now, Mr. Scofield says that he didn’t swindle anybody. He’s not of a violent nature. Mr. Scofield, people who are not necessarily of a violent nature can commit crimes just like anybody else. People of violent nature, bank robbers in particular, I guess—I don’t want to say compassion, because I do feel for some of them because it’s a desperate act, a bank robbery. It’s a stupid crime, and they get very little out of it. Somebody can embezzle a million dollars and come up here with a white collar and a tie on and expect to get out on probation. Somebody goes in and robs a bank in a desperate act and subjects himself to twenty-five years. Drug dealers and pornographic dealers and so forth, they usually are so-called pillars of the community. I will say that Mr. Johnson is a man who apparently got into this, you may might [sic] accidentally, and I guess it’s fortunate for him to be caught when he was because if he hadn’t been, he probably would have gotten into organized crime and been ordering these materials and everything else. All right, enough [sic] preaching. It is adjudged that the defendant is committed to the custody of the Attorney General or his authorized representative for a term of three years and fined a sum of $5,000.00. Execution of the term of imprisonment is suspended, and the defendant placed on probation for a period of three years, subject to the following terms and conditions: (1) That he not violate any laws of the State of North Carolina or Federal Government; (2) That he obey all the rules and regulations of the probation department; and, (3), [sic] that he pay the fine in such installments as may be directed by the probation officer. Counts One and Two are merged for purposes of sentencing.

[Tr. pp. 52-54],

In United States v. Bronson, the statement made by the Court of which the Defendant complains was also made during the sentencing phase of a Defendant who had pleaded guilty and stipulated, under the appropriate legal standard, to the obscenity of the material in question. The full context of the statements made by the Court shows that the type of conduct which the Defendant had engaged in, which the Court stated it did not think should be allowed in this country, was a particular type of criminal conduct. Again the statements show the seriousness with which this Court views such criminal conduct. Defendant Bronson was not being sentenced by the Court for legally protected conduct but for criminal conduct to which he had pleaded guilty and for which there was a factual basis. The full statement made by the Court is as follows:

THE COURT: Well, Mr. Laughrun, your objection to the pre-sentence report refers to videotapes depicting child pornography. I will disregard that and consider that in the light most favorable to the defendant in sentencing. Now, Mr. Laughrun, everything you have said about this man, of course, is true, I suppose. He has served his country. Apparently he’s done some of the same things drug dealers do, although drug dealers make more profit than he’s made, but I’m afraid to the deprivation of our society, very severely and very seriously. Apparently he was well on the road to doing even more than he did with the sources of supply, wherever he got those things—I don’t know. But in any event, I always hate to see a man that’s been a good citizen get in trouble, Mr. Laughrun, but as you know, that happens all the time. There are people up here who’ve been in trouble all their lives, and there are people up here who have never been in trouble, but they’ve gotten—committed a crime—and they’re going to, of course, have to be sentenced by the Court. All right. We’re going to merge Counts Two, Four, Six and Eight for sentencing. On Counts Two, Four— wait. Excuse me. Two and Four and Eight for sentencing. On Counts Two, Four and Eight, the defendant is committed to the custody of the Attorney General or his authorized representative for a term of five years. Count No. Six, the defendant is committed to the custody of the Attorney General or his authorized representative for a term of two years, to run consecutively with the sentence imposed in Counts Two, Four and Eight. Now, I will allow him to report to the marshal at,his own expense if there is no objection by the Government. All right, Mr. Laughrun, that will be about five or six weeks.
MR. LAUGHRUN: Judge, will you consider suspending the last two years of that sentence?
THE COURT: No, sir. I think these tapes and from what I’ve read about them, without even looking at them, they are without a doubt some of the worst things I’ve ever even heard of in my life. Perhaps I’ve led a very sheltered life, but there is no question as to the obscenity. I can’t overlook the fact he’s engaged in the type of conduct I don’t think should be allowed in this country. He can be notified by the marshal. Be about five weeks.

[Tr. pp. 39-40].

That this Court may “personally” view a particular type of crime as more serious than other crimes, does not, without more, give a reasonable man grounds to believe that the Court is personally biased or prejudiced against a defendant. In United States v. Lackey, 705 F.2d 446 (4th Cir.1983), affirmed in part, vacated in part, and remanded, this Court stated at the time that defendant Chapman entered his plea, “I personally view this type of case as more serious than armed bank robbery.” On appeal Defendant Lackey argued that this Court’s “alleged prejudice in drug cases deprived him of a fair and impartial trial.” Lackey, p. 7. Specifically, Defendant Lackey argued that the trial court had abused its discretion in denying his motion for change of venue. The Fourth Circuit, disagreeing with the Defendant held the following:

Further, this court cannot find an abuse of discretion in the trial court’s denial of appellant’s motion for a change of venue on the grounds of prejudice. The fact that the trial court stated that it personally viewed this type of case (distribution of cocaine) as more serious than armed bank robbery, does not raise a presumption of prejudice so as to amount to an abuse of discretion in denying the motion for a change of venue. The fact that a judge views offense A as more serious than offense B does not, without more, create a presumption of prejudice in that judge’s handling of a case involving offense A.

Lackey, p. 8.

Defense counsel, Harold Bender, who filed the Certificate of Good Faith, should be well aware of the Lackey case because, while an Assistant United States Attorney, he prosecuted the case and represented the United States on the appellate brief.

A trial judge is not “disqualified from sitting in a case because of an earlier decision, in which he participated, of a similar case involving other parties.” Rice, supra at 1118. The Fifth Circuit in a holding that the trial judge did not abuse his discretion in refusing to recuse himself noted that:

It is a district judge’s duty to conduct trials, weigh evidence, consider the law, exercise his discretion, and reach decisions in the cases on which he sits. If he understands that a seemingly harsh comment toward a party or an attorney, or a perceived tendency to give severe sentences to some class of offenders, or an aggregate imbalance in victories for plaintiffs or defendants in a particular class of cases may subject him to a train of successful recusal motions in future case's, he may consciously or subconsciously shape his judicial actions in ways unrelated to the merits of the eases before him.

Phillips, supra at 1120.

In determining the sufficiency of the § 144 affidavit in United States v. Nehas, 368 F.Supp. 435, 437 (W.D.Pa.1973), the district court noted that § 144 “specifies that ‘personal’ bias is the sole ground of disqualification.” The District Court further noted that:

This involves antagonism or animosity toward the affiant, or favoritism towards the adverse party. Berger v. United States, 255 U.S. 22, 32, 41 S.Ct. 230, 65 L.Ed. 481 (1921); Cole v. Loew’s Inc., 76 F.Supp. 872, 877 (S.D.Cal.1948). Personal bias is to be distinguished from “judicial” bias, and does not include views based upon matters arising during the course of the litigation or upon general attitudes common to the public generally. United States v. Gilboy, 162 F.Supp. 384, 394 (M.D.Pa.1958); Knapp v. Kinsey, 232 F.2d 458, 466 (C.A. 6, 1956); Cole v. Loew’s Inc., 76 F.Supp. 872, 877 (S.D.Cal.1948).
In particular, views relating to legal questions, even strongly-held views in favor of law-enforcement, do not amount to personal bias. Knapp, supra, 232 F.2d at 466; United States v. Valenti, 120 F.Supp. 80, 85-86 (D.N.J.1954); Baskin v. Brown, 174 F.2d 391, 394 (C.A. 4, 1949); Cole v. Loew’s Inc., 76 F.Supp. 872, 876-77 (S.D.Cal.1948).
Likewise, the severity of a sentence (within the statutory spectrum) is no indication of personal bias. Knapp, supra, 232 F.2d at 466; Calvaresi v. United States, 216 F.2d 891, 900 (C.A. 10, 1954).

368 F.Supp. at 437 [footnote omitted].

Applying the above-quoted principles to the case at bar, it seems clear that the allegations in the Defendant’s Affidavit “do not amount to a sufficient description of personal bias. At most, nothing but ‘judicial bias’ or zeal for enforcement of enacted law and policies of Congress embodied therein is established.” Nehas, supra, at 437-38. Under § 144 this is not enough.

The statements made by the Court in the Johnson and Bronson cases were not in reference to this Defendant who is presumed innocent until proven guilty beyond a reasonable doubt. One can search the Johnson and Bronson transcripts in vain without finding a reference to this Defendant by name or otherwise. Thus, a reasonable man would not have a reasonable basis for doubting this Court’s impartiality toward this Defendant personally.

Nor do this Court’s statements give a reasonable man a reasonable basis for doubting this Court’s impartiality toward persons, like the Defendant, who have been charged with “anti-pornography laws.” The statements made by the Court were at the sentencing phase of two defendants who had pleaded guilty. Thus, by their pleas of guilty, the acceptance of the pleas and the finding of a factual basis for the pleas, the defendants were no longer merely charged with violations of obscenity laws but stood convicted of a violation of those laws and as such had lost their presumption of innocence. Once Defendants stipulated to the obscenity of the material in question the presumption mandated by the First Amendment, which Defendant argues this Court fails to give due regard, disappeared.

As noted earlier, in his Memorandum Defendant states that this Court “has expressed a fixed viewpoint on the disposition of the cause of a class of persons of which the Defendant is allegedly a member.” Defendant does not elaborate on what is meant by “a fixed viewpoint on the disposition of the cause.” In both the Johnson and the Bronson cases the defendants pleaded guilty. They certainly did not receive fixed sentences. Defendant Johnson was placed on probation and Bronson was originally sentenced to seven years in prison which was later reduced, in effect, to five years imprisonment.

Finally in his Memorandum, Defendant argues that “the Court has been prejudiced against this Defendant by the statements made by Assistant United States Attorney Debra Stuart.” Specifically, Defendant complains of the following statement made by Ms. Stuart:

There is a difference in Mr. Johnson as a person and other people that will no doubt at some point come before this Court in the area of obscenity and pornography, in that he is not an organized crime figure. There is no indication that his commercial operation of the duplication of pornographic materials had anything to do with organized crime figures or Mafioso or anything of that nature, and he has certainly made every attempt to do anything that he has been asked to do by way of cooperation.

(Johnson Tr. 51-52).

In his Memorandum Defendant asserts that “[c]learly, reference was being made to this Defendant. This unfounded and reckless statement has so ‘poisoned’ the mind of the Judge that it would be difficult, if not impossible, to receive a fair trial.” It is Defendant’s above-quoted statement that is unfounded and reckless; not Ms. Stuart’s. No where has Ms. Stuart mentioned the Defendant by name or otherwise. The record in this case shows that Defendant was not indicted until June 12, 1985. Defendant Johnson, at whose sentencing hearing Ms. Stuart made the statement, was sentenced on January 22, 1985— almost five months prior to Defendant being indicted. While not set forth in Defendant’s Affidavit this Court considered this contention because, under § 455 this Court has a duty to recuse itself, absent any motion, in any proceeding in which the Court’s “impartiality might reasonably be questioned.”

In summary, Defendant’s Affidavit is insufficient under § 144. Defendant has not set forth any matter in his Affidavit, Memorandum or otherwise, which on the basis of all the circumstances would give a reasonable person a reasonable basis for doubting this Court’s impartiality.

IT IS, THEREFORE, ORDERED, as stated in open court, that Defendant’s Motion to Recuse is DENIED.

The Clerk is directed to certify copies of this Order to defense counsel and the United States Attorney.

      . Section 455(b)(1) also requires a judge to recuse himself "[wjhere he has a personal bias or prejudiced concerning a party____”

      . The timeliness of the Motion to Recuse is not at issue here.

      . At the time the Motion to Recuse was filed only Harold Bender was counsel of record.

      . But see United States v. Phillips, 637 F.2d 1014, ftnt. 6 (5th Cir.1981) where in comparing §§ 144 and 455 the Court stated: "To the extent that there is a difference, section 455 imposes the stricter standard [on the court]: a movant under section 144 must allege facts to convince a reasonable person that bias exists, ... while under the broader language of section 455, he must show only that a reasonable person ‘would harbor doubts about’ the judge’s impartiality____’” [Citations omitted].

      . At the hearing Defendant’s counsel, Bert Sandler, accused the Court of violating its judicial duty to determine the obscenity of the materials in question in the cases of United States v. Johnson and United States v. Bronson by accepting Defendants’ stipulations, on advice of counsel, that the material in question was obscene under the appropriate legal standard. But see, Roaden v. Kentucky, 413 U.S. 496, 497, 93 S.Ct. 2796, 2797, 37 L.Ed.2d 757 (1972) where the Supreme Court noted that ‘‘[s]ince the petitioner conceded the obscenity of the film at trial, that issue is not here before us for discussion.” Also, see United States v. Grassi, 602 F.2d 1192 (5th Cir.1979).


source: Caselaw Access Project

author: ZIEGLER, District Judge.

license: Public Domain

text:
    Angeline S. PROTOS, Plaintiff, v. VOLKSWAGEN OF AMERICA, INC., Defendant.
    Civ. A. No. 84-1251.
    United States District Court, W.D. Pennsylvania.
    Aug. 27, 1985.

      James W. Carroll, Jr., Pittsburgh, Pa., for plaintiff.
    James P. Hollihan, Pittsburgh, Pa., for defendant.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

ZIEGLER, District Judge.

I. Findings of Fact

(1) Plaintiff, Angeline S. Protos, filed a civil action for money damages and injunctive relief against defendant, Volkswagen of America, Inc., based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

(2) Plaintiff contends that she was disciplined, suspended and ultimately terminated by defendant due to her religious beliefs in violation of the 1972 amendment to Title VII, 42 U.S.C. § 2000e(j).

(3) Jurisdiction is based on 42 U.S.C. § 2000e—5(f)(3) and 28 U.S.C. § 1343(a).

(4) Plaintiff has satisfied all administrative prerequisites to the filing of this action, including the filing of written charges with the Equal Employment Opportunity Commission; an investigation by the agency; a finding of probable cause to believe that defendant violated Title VII by failing to accommodate plaintiffs religious beliefs; notice of the right to sue; and a timely complaint.

(5) Angeline Protos was hired by Volkswagen as an assembler at the New Stanton assembly plant on May 9, 1979.

(6) At all relevant times, plaintiff was a member of the Worldwide Church of God. One of the tenets of the church provides that a member shall not work on the Sabbath which extends from sunset on Friday to sunset on Saturday.

(7) The evidence preponderates that plaintiffs religious beliefs were sincerely held and consistent with the teachings of the Worldwide Church of God. Plaintiff documented her religious beliefs by providing letters to defendant from her minister on two occasions.

(8) The evidence preponderates that plaintiff was a competent, efficient, loyal and highly motivated employee of defendant until she was discharged on March 17, 1980.

(9) Plaintiff worked on the assembly line in trim 15, and performed the task of attaching four color coded wires of varying lengths to three connectors and a ground screw in the tail light assemblies of Rabbit automobiles. The evidence preponderates that the job could be learned in 15 minutes and performed in 30 seconds. We find that plaintiff has established by a preponderance of the evidence that the assignment was the least difficult and strenuous in trim 15.

(10) From the date of her employment, until August of 1979, plaintiffs regular work shift was from 6:30 a.m. to 3:00 p.m., Monday to Friday, and no conflict arose with her religious beliefs or observances. Plaintiff performed her work in a competent manner from Monday to Friday of each work week.

(11) In September, 1979, Volkswagen began to schedule mandatory overtime on Saturday which would require plaintiff to work in violation of her Sabbatarian beliefs. Plaintiff informed defendant that she would be unable to work on Saturdays due to the Sabbath.

(12) On September 29 and October 6 and 13, 1979, plaintiff was excused by her supervisor from work on Saturday due to her religious beliefs.

(13) On November 9, 1979, defendant advised plaintiff that she no longer would be excused from work on Saturdays. Plaintiff informed defendant that she would be unable to work on Saturday due to her religious beliefs and the teachings of the Worldwide Church of God.

(14) On December 10, 1979, defendant initiated disciplinary proceedings against plaintiff, pursuant to step 1 of the collective bargaining agreement, for failing to work on Saturday, December 8, 1979.

(15) On February 4, 1980, plaintiff was disciplined for failing to work on Saturday, February 2, 1980, and a one-week disciplinary layoff was imposed.

(16) On February 25, 1980, plaintiff was disciplined for failing to work on Saturday, February 23, 1980, and a two-week disciplinary layoff was imposed.

(17) On March 17, 1980, plaintiff was discharged for failing to work on Saturday, March 15, 1980.

(18) Plaintiff gave reasonable notice to Volkswagen prior to each absence, and plaintiff was willing to work on Sunday or make any adjustment in her work schedule to avoid the directive that she work on Saturday.

(19) The evidence preponderates that the absence of plaintiff from work on Saturday, and specifically on December 8, 1979, February 2 and 23, and March 1, 1980, caused no undue hardship to Volkswagen. The credible evidence establishes that defendant had available, at the same rate of pay, qualified employees who were able and did perform the assignment of plaintiff during her absence, without undue hardship or de minimus cost to defendant.

(20) The evidence preponderates that defendant had available, and utilized absentee relief operators and tag relief employees to replace plaintiff without affecting the efficiency, quality or production of trim 15 and the assembly line.

(21) Our finding that plaintiff sustained her burden of proving that Volkswagen discriminated due to her religious beliefs is based on the impressive array of credible witnesses presented by plaintiff. For example, Kenneth Holler testified that production continued without interruption on the days that plaintiff was absent with the use of one of the two absentee relief operators who were assigned to trim 15. In addition, each segment of the assembly line utilized the “A.R.O.s” from other segments of the line to cover the jobs of the various employees who were absent. In sum, the A.R.O.s were employed by defendant as substitutes for absent employees and the evidence preponderates that defendant was able to cover the absence of plaintiff on each of the relevant days without an undue hardship, indeed without any hardship whatsoever.

(22) Frank Pearsol was a particularly credible witness. He testified without any apparent bias to either party and impressed the court as an intelligent, articulate and loyal employee. Pearsol related that plaintiff performed the simplest job on the assembly line and the one to which the new employees were assigned. Hence, defendant was able to replace plaintiff on each Saturday without any hardship. Normal production continued and quality control was maintained, even when the assembly line operated at an accelerated pace.

(23) Volkswagen presented witnesses to meet its burden of production of evidence. See Bellissimo v. Westinghouse Elec. Corp., 764 F.2d 175 (3d Cir.1985). However, we find that plaintiff has satisfied her burden of proof by the fair weight of the credible evidence. Defendant’s evidence that the efficiency, production, quality and morale of trim 15 and the assembly line were undermined due to plaintiff’s absence on selected Saturdays was not persuasive. First, we find that plaintiff’s witnesses were more credible than the witnesses presented by defendant. Second, the exhibits of record undermine the testimony of defendant’s witnesses. For example, contrary to the testimony of Daniel Antis, the area coordinator of trim 15, the documentary evidence fails to relate the problems of trim 15 to the absence of plaintiff. See Plaintiff’s Ex. 12. Third, while defendant presented evidence of problems of unexcused absenteeism, we find that plaintiff’s evidence preponderates that the end product was not affected by the absence of plaintiff because defendant was able, and did replace plaintiff with competent substitutes, without difficulty throughout the manufacturing process.

(24) Defendant’s evidence that one employee complained because plaintiff was absent on one Saturday due to her religious beliefs fails to preponderate. There is no credible evidence that the complaint affected the routine operation of the assembly line or caused a hardship, de minimus or otherwise, to defendant.

(25) Plaintiff’s evidence preponderates that defendant was able to utilize other absentee relief operators and tag relief operators on the assembly line to replace the A.R.O.s in trim 15, on the days on which an absentee relief operator was assigned to plaintiff’s job, without undue hardship, and without any cost to defendant.

(26) The evidence preponderates that defendant was able to conduct an efficient and routine assembly line operation on the days on which plaintiff was absent due to her religious beliefs, despite the unexplained absences of other employees.

(27) The evidence preponderates that defendant was able and did train substitute employees to perform the job of plaintiff without additional time, expense or undue hardship.

(28) The evidence preponderates that defendant was able and did procure qualified substitute employees to perform the job of plaintiff without violation or deviation from the collective bargaining agreement between defendant and the United Auto Workers of America.

(29) The evidence preponderates that the excused absence of plaintiff from overtime work on Saturday would not violate any provision of the collective bargaining agreement between defendant and Local 2055 of the United Auto Workers. See Paragraphs 139-141 of Defendant’s Ex. A at 50-51.

(30) The evidence preponderates that Angeline Protos was the only employee from a work force of 5,000 who was disciplined, suspended and terminated for refusing to work overtime on Saturdays due to her religious beliefs.

(31) The evidence preponderates that plaintiff was subject to disparate treatment, i.e., discrimination, because she was discharged from a job for which she was qualified while others not in the protected class were retained.

(32) The evidence preponderates that defendant refused to excuse plaintiff from overtime assignments on the relevant Saturdays despite the fact that employees not in the protected class were granted excused absences from overtime assignments by management pursuant to paragraphs 140-141 of the collective bargaining agreement.

(33) The evidence preponderates that the nondiscriminatory reasons offered by defendant were pretextual because excused absences were granted to nonprotected employees from overtime assignments for various reasons pursuant to paragraphs 140-141 of the bargaining agreement and for jury duty, sickness, vacation, bereavement, education, public office, and others. See Stipulation at ¶ 3.

(34) The evidence preponderates that plaintiff would not have been disciplined, suspended or discharged but for her sincerely held religious beliefs.

II. Conclusions of Law

(35) In 1972, Congress amended the Civil Rights Act of 1964 to require that an employer must reasonably accomodate the religious observances of an employee except when “undue hardship on the conduct of the employer’s business” will result. 42 U.S.C. § 2000e(j) (1982).

(36) The reasonable accommodation language of the statute was taken from the guidelines of the Equal Employment Opportunity Commission then in effect, 29 C.F.R. § 1605.1(b) (1968), and the state-merits of Senator Jennings Randolph are cited by plaintiff as useful:

MR. RANDOLPH. Mr. President, freedom from religious discrimination has been considered by most Americans from the days of the Founding Fathers as one of the United States. Yet our courts have on occasion determined that this freedom is nebulous, at least in some ways. So in presenting this proposal to S. 2515, it is my desire that I hope the desire of my colleagues, to assure that freedom from religious discrimination in the employment of workers is for all time guaranteed by law.
I am sure that my colleagues are well aware that there are several religious bodies—we could call them religious sects; denominational in nature—not large in membership, but with certain strong convictions, that believe there should be a steadfast observance of the Sabbath and require that the observance of the day of worship, the day of the Sabbath, be other than on Sunday. On this day of worship work is prohibited whether the day would fall on Friday, or Saturday, or Sunday. There are approximately 750,000 men and women who are Orthodox Jews in the U.S. work force who fall in this category of persons I am discussing. There are an additional 425,-000 men and women in the work force who are Seventh-day Adventists.
* * * * * *
I say to the distinguished chairman of the Labor and Public Welfare Committee, who manages this bill, that there has been a partial refusal at times on the part of employers to hire or to continue in employment employees whose religious practices rigidly require them to abstain from work in the nature of hire on particular days. So there has been, because of understandable pressures, such as commitments of a family nature and otherwise, a dwindling of the membership of some of the religious organizations because of the situation to which I have just directed attention.
* * * * * *
The term “religion” as used in the Civil Rights Act of 1964 encompasses, as I understand it, the same concepts as are included in the first amendment—not merely belief, but also conduct; the freedom to believe, and also the freedom to act.
I think in the Civil Rights Act we thus intended to protect the same rights in private employment as the Constitution protects in Federal, State, or local governments. Unfortunately, the courts have, in a sense, come down on both sides of this issue. The Supreme Court of the United States, in a case involving the observance of the Sabbath and job discrimination, divided evenly on this question.
This amendment is intended, in good purpose, to resolve by legislation—and in a way I think was originally intended by the Civil Rights Act—that which the courts apparently have not resolved. I think it is needed not only because court decisions have clouded the matter with some uncertainty; I think this is an appropriate time for the Senate, and hopefully the Congress of the United States, to go back, as it were, to what the Founding Fathers intended. The complexity of our industrial life, the transition of our whole are of employment, of course are matters that were not always understood by those who led our Nation in earlier days.

118 Cong.Rec. 705-06 (1972). According to plaintiff, the amendment is a rather clear expression Congress intended that employers accommodate the religious beliefs, observances and obligations of members of religious faiths which may differ from the mainstream of religious practices in this nation. The Supreme Court, however, is less enamored with the legislative history. Trans. World Airlines, Inc. v. Hardison, 432 U.S. 63, 74-75 & n. 9, 97 S.Ct. 2264, 2271-72 & n. 9, 53 L.Ed.2d 113 (1977).

(37) In Trans. World Airlines, Inc. v. Hardison, the Supreme Court construed the 1972 Amendment to require an employer to accommodate the religious observances of employees unless such accommodation would contravene the provisions of a collective bargaining agreement or would cause the employer undue hardship. The only act of accommodation in this case is the excused absence of Angeline Protos from overtime work on Saturday during daylight hours. As in Brown v. General Motors Corp., 601 F.2d 956, 958 (8th Cir. 1979), such an arrangement would not contravene a valid collective bargaining agreement.

(38) Several courts of appeals have discussed the burden of proof in a Title VII religious discrimination case as follows:

A plaintiff in a case makes out a prima facie case of religious discrimination by proving: (1) he or she has a bona fide religious belief that conflicts with an employment requirement; (2) he or she informed the employer of this belief; (3) he or she was disciplined for failure to comply with the conflicting employment requirement.

Philbrook v. Ansonia Bd. of Educ., 757 F.2d 476, 481 (2d Cir.1985); Turpen v. Missouri-Kansas-Texas R.R. Co., 736 F.2d 1022, 1026 (5th Cir.1984); Brown v. General Motors Corp. 601 F.2d 956, 959 (8th Cir.1979); Anderson v. Gen. Dynamics, 589 F.2d 397, 401 (9th Cir.1978). Although the Court of Appeals for the Third Circuit has not adopted the test as yet, we are confident that the rule represents an accurate statement of law.

(39) As rehearsed, Angeline Protos satisfied the burden of proving a prima facie case of religious discrimination by a preponderance of the evidence. She presented credible evidence that she has a sincerely held religious belief which conflicts with Volkswagen’s requirement that an employee must perform overtime work on Saturday, during day light hours, unless excused by the Company. Although defendant attempted to show that plaintiff’s belief is insincere, there is no credible evidence to support that view. The sincere and bona fide religious beliefs and observances of plaintiff cannot be challenged on this record. Plaintiff has met the test for religious sincerity set forth in Lewis v. Califano, 616 F.2d 73, 77-81 (3d Cir.1980).

(40) Plaintiff also has met the remaining prima facie requirements. She presented credible evidence that Volkswagen was informed of her beliefs prior to any absence from work or discipline by defendant. Further, it is not disputed that plaintiff would not have been disciplined,- suspended or discharged but for her refusal to work overtime on the relevant Saturdays, and we have found that the absences were due to her religious beliefs. No other employee was treated similarly. Indeed, many employees were excused from overtime work for a variety of secular reasons.

(41) Volkswagen contends that, because Angeline Protos demanded a “guarantee” that she would be excused from all work on Saturdays following the overtime announcement of September 1979, plaintiff failed to present a prima facie ease as a matter of law, citing Jordan v. N. Carolina Natl. Bank, 565 F.2d 72 (4th Cir. 1977). We disagree. First, in our judgment, the panel’s opinion in Jordan misconstrues Hardison because, assuming an employee demands a guarantee of immunity from work on the Sabbath, an employer is required to reasonably accommodate the observance if it can be done without undue hardship, as here. Second, we believe that Judge Winter presented the better analysis in the dissent. And third, the subsequent decision of the Court of Appeals in Brown v. General Motors Corp., 601 F.2d 956 (8th Cir.1979) is more in keeping with our view of the teachings of the Supreme Court.

(42) Volkswagen produced evidence to attempt to dispel the adverse inference created by the prima facie case of plaintiff to the effect that to accommodate plaintiff’s religious beliefs would constitute an undue hardship. Defendant’s witnesses testified that to excuse Angeline Protos from Saturday overtime would lead to inefficiency, lost production, poor quality and loss of morale.

(43) We have previously found that defendant’s evidence was hotly contested and that plaintiff met her burden of proof by the weight of the credible evidence. We hold that plaintiff went forward with credible evidence which established that the nondiscriminatory reasons advanced by defendant were pretextual. See Bellissimo v. Westinghouse Electric Corp., 764 F.2d 175 (3d Cir.1985).

(44) Plaintiffs evidence establishes that defendant suffered no economic loss when she refused to work overtime on Saturday. Angeline Protos was not compensated for the absence, and plaintiff was replaced by an employee, who was paid at the same rate of pay. Further, as rehearsed, plaintiff presented the more believable evidence that the efficiency, production, quality and morale of trim 15, and the entire assembly line remained intact during her absence. Plaintiff also established by convincing evidence that she was subjected to disparate treatment and that no employee in the non-protected class was similarly treated. We hold that plaintiff has satisfied her ultimate burden of persuasion. Dillon v. Coles, 746 F.2d 998 (3d Cir.1984).

(45) Volkswagen’s final contention appears to be that relief is inappropriate because the 1972 Amendment to Title VII is unconstitutional. We agree with defendant that the foregoing findings require resolution of the establishment clause question. See Gavin v. Peoples Natural Gas, 613 F.2d 482 (3d Cir.1980). However, learned minds have addressed the question and no appellate court has held that the act constitutes an establishment of religion in violation of the First Amendment. See, e.g., Philbrook v. Ansonia Bd. of Education, 757 F.2d 476, 487 n. 11 (2d Cir. 1985); Note, Religious Accommodation, 53 Fordham L.Rev. 839, 854-855 (1985). We perceive no reason to deviate from those wise teachings. See also Estate of Thornton v. Caldar, — U.S. —, —, 105 S.Ct. 2914, 2918, 86 L.Ed.2d 557 (1985) (O’Connor, J., concurring).

(46) We have found that plaintiff has established by a preponderance of the evidence that defendant failed to reasonably accommodate the religious beliefs of plaintiff and further that defendant could have done so without undue hardship and at no cost. The credible evidence establishes that but for the illegal conduct of defendant, plaintiff would not have been discharged, and that the discharge was due to protected activity. We turn to the appropriate relief.

(47) The parties have stipulated that, if Angeline Protos had worked for defendant from March 17, 1980 to January 22, 1983, when she would have been laid off due to a reduction in defendant’s business, she would have earned the sum of $49,495.25. Since we have found that defendant discriminated against plaintiff, we will award this sum as back pay because the evidence preponderates that plaintiff was unable to find alternate employment despite good faith efforts subsequent to her discharge.

(48) The parties have stipulated that, if Angeline Protos had worked for defendant from March 17, 1980 to January 22, 1983, she would have earned fringe benefits in the sum of $13,525.11, plus unemployment benefits during a production slowdown in the sum of $6,355. Since we have premised liability and causation on defendant, we will award this sum to plaintiff because the evidence preponderates that plaintiff was unable to find alternate employment despite good faith efforts subsequent to her discharge.

(49) We will award to plaintiff the sum of $4536 which represents the difference in the rate of unemployment compensation benefits which plaintiff received and that which she would have received if laid off on January 22, 1983 for economic reasons.

(50) Unemployment compensation benefits are not deductible from an award of back pay against a private employer in a Title VII action in this jurisdiction, Craig v. Y & Y Snacks, Inc., 721 F.2d 77 (3d Cir. 1983), and there is no equitable reason to do so in this case. See generally Dillon v. Coles, 746 F.2d 998 (3d Cir.1984).

(51) The evidence preponderates, and the parties have stipulated that plaintiff would have been laid off effective January 22, 1983. While this interdicts the claim for back pay, plaintiff is entitled to be reinstated effective March 17, 1980, with full seniority rights retroactive to that date. 42 U.S.C. § 2000e-5(g) (1982). Reinstatement is required under the facts of this case, although work is not available at this time. There is no likelihood of disharmony when plaintiff is returned to the work place.

(52) Judgment will be entered on behalf of plaintiff, Angeline S. Protos, and against defendant, Volkswagen of America, Inc., in the sum of $73,911.36. Reinstatement will also be ordered effective March 17, 1980, in a judgment order to be filed with the Clerk of Court. Counsel for plaintiff will be ordered to file a motion for counsel fees, with a supporting affidavit, within 10 days.