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Gabriel Sepulveda v. Borne Holding Co.

December 9, 2010

GABRIEL SEPULVEDA, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
BORNE HOLDING CO., INC., A CORPORATION, KURT BORNE, INDIVIDUALLY, AND GARY BORNE, INDIVIDUALLY,*FN1 DEFENDANTS-RESPONDENTS/ CROSS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1683-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 19, 2010

Before Judges Skillman, Parrillo and Yannotti.

Plaintiff Gabriel Sepulveda appeals from an order entered by the Law Division on February 5, 2010, granting summary judgment in favor of defendants Borne Holding Co., Inc. (BHC), Kurt Borne (Kurt) and Gary Borne (Gary). Defendants cross appeal from an order entered on March 19, 2010, denying their motion for sanctions pursuant to Rule 1:4-8. For the reasons that follow, we reverse on the appeal and affirm on the cross appeal.

I.

In this case, plaintiff alleges that BHC terminated his employment in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42 (LAD), because it required him to work on Sundays despite plaintiff's belief that doing so would be contrary to his religious practices and observances. Plaintiff further alleges that BHC failed to reasonably accommodate his religious beliefs. He also claims that Gary and Kurt violated the LAD by aiding and abetting BHC in the alleged unlawful acts.

Plaintiff's complaint arises from the following facts. BHC engaged in the business of storing and distributing of goods under the name of PSS Warehousing/Transportation (PSS). Gary is President of BHC and PSS and Kurt is Vice-President of the companies. BHC maintained a warehouse at 285 Ridge Road in Dayton, New Jersey. Since April 2001, plaintiff had been working for BHC as an "order picker" in the company's 285 Ridge Road warehouse.

Michael Reardon (Reardon) was plaintiff's supervisor. At his deposition, Reardon testified that prior to November or December 2007, BHC ordinarily did not require its employees to work overtime, and any overtime work that was required usually occurred on Saturdays. Reardon said that BHC's employees were rarely, if ever, required to work on Sundays at the warehouse at 285 Ridge Road.

From April 2001 to December 2007, BHC did not require plaintiff to work on Sundays. If plaintiff was required to work overtime, he usually would do so during his regular Monday-to-Friday work week, but on occasion, he was required to work on Saturdays. BHC's records show that from February 2007 through January 2008, plaintiff worked three Saturdays.

In December 2007, Reardon informed plaintiff and his co-workers at 285 Ridge Road that, because BHC was re-locating from that site, they would be required to work on Saturdays and/or Sundays to assist in the move. Plaintiff informed Reardon that he would not work on Sundays because it would conflict with his religious practices and observances. Two other employees refused to work on Sundays, but their refusals were not based on their religious beliefs.

Reardon informed Kurt that plaintiff and the other two workers had refused to work on Sundays. Reardon explained that plaintiff's refusal was based on his religious practices. According to Reardon, Kurt said the employees would be required to "do what they need to do." Reardon told plaintiff that he would have to work on Sundays. Plaintiff told Reardon that he would not do so.

On Friday, February 15, 2008, Reardon informed plaintiff that he would have to work on Saturday and Sunday of that week. Plaintiff refused to work on Sunday. Reardon informed Kurt, and Kurt told Reardon that plaintiff would have to work "sun up to sun down" on Saturday. Kurt said that plaintiff would be "written up" for refusing to work on Sunday.

At his deposition, plaintiff testified that on Saturday, February 17, 2008, after he finished work, he was told to see Gary. Plaintiff went to Gary's office. Gary was there with Kurt. Plaintiff stated that Gary cursed at him for refusing to work on Sunday. Gary told plaintiff that he was fired and ordered him to get off the premises. He also told plaintiff that he should not think about collecting unemployment benefits.

Plaintiff testified that since 1992, he has been a "born-again" Christian, which means that he had been baptized twice. Plaintiff is a member of the Unbroken Chain Church. He did not regard working on Sundays as a sin but thought that God had intended Sunday to be a day of rest. Plaintiff acknowledged that some members of his church work on Sundays but said that some do not. Plaintiff further testified that on Sundays he goes to church and, thereafter, does not socialize with anyone. Plaintiff said that he stays in his bedroom and prays silently.

Plaintiff additionally stated that, approximately twenty-one years prior to his employment at BHC, he worked on a Sunday while employed at another warehouse. Plaintiff said that, on that day, he stopped work after about an hour because "everything went wrong." He told his boss he was going ...


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