United States District Court, D. New Jersey
McNULTY UNITED STATES DISTRICT JUDGE
matter comes before the Court on the motion of the defendant,
The Port Authority of New York and New Jersey ("Port
Authority"), for summary judgment. (DE 63). The motion
will be granted.
plaintiff, Gary Miller, worked for Port Authority at Newark
Liberty International Airport ("EWR") for less than
three months, from January 2, 2015 until his termination on
March 21, 2015. After his termination, Miller sued Port
Authority, claiming religious discrimination and failure to
accommodate his religious beliefs, in violation of Title VII
of the Civil Rights Act of 1964.
observes the Jewish Sabbath, a belief which prohibits him
from working from sunset on Friday to sunset on Saturday.
There were times when his position at Port Authority required
that he work Friday evenings and Saturdays, as part of a
neutral rotational schedule. A few days after starting his
new position, on January 5, 2015, Miller requested that he
not be required to work shifts that conflicted with the
Sabbath and Jewish holidays.
claims that his request for an accommodation was rejected. He
does not recall, however, whether anyone from Port Authority
ever spoke to him about his options to use various forms of
leave on days of religious obligation. In contrast, Port
Authority has proffered competent evidence that it offered
Miller the option to swap shifts with other employees, and
told him that he could use vacation, personal excused time,
or compensatory time. Miller did in fact use personal excused
time for religious purposes on seven occasions from January
through February of 2015.
March of 2015, Miller submitted three separate requests for
unpaid leave, which were rejected. By that time, he had
exhausted his personal excused time. When he failed to report
to work, he was marked absent without excuse. He was
contends that Port Authority's accommodation was not
reasonable. He offers that Port Authority could simply have
altered its rotational schedule and not scheduled Miller on
Friday evenings or Saturdays. He further contends that his
shift could have been "back-filled" in the same
manner as is done for employee absences.
employees in Miller's unit are unionized, and as a
result, Port Authority is bound by a collective bargaining
agreement. Creating a permanent shift schedule for Miller
exempting him from work on the Sabbath or the Jewish
holidays, without first offering that option to more senior
employees, would have violated the agreement's seniority
provision. It also would have violated the past-practices
provision of the agreement, which requires that the
established rotational schedule be maintained. In short,
Miller's preferred accommodation would have placed Port
Authority in violation of its collective bargaining agreement
and required other, more senior employees to work less
desirable additional Friday evening and Saturday shifts.
record, the religious accommodation offered by Port Authority
was reasonable. And because the blanket exemption proposed by
Miller would have imposed more than a de minimis hardship,
the employer was not required to accept it.
required at this stage, the Court resolves all disputes of
fact and draws all inferences in favor of Miller. Unless
otherwise indicated, the facts recited below are undisputed
for purposes of Fed.R.Civ.P. 56.
329 at EWR
January 2, 2015, Port Authority hired Miller as a Utility
Systems Maintainer ("USM") at EWR. (DSMF ¶5;
PRS ¶5). EWR has a Mechanical Maintenance Unit,
"Unit 329," that is responsible for the operation,
maintenance, and repair of utility systems and related
auxiliary equipment. (DSMF ¶9; PRS.¶9). Unit 329
also responds to emergency situations at the airport,
including plane crashes, pipe ruptures, water main breaks, or
weather-related conditions. (DSMF ¶10; PRS ¶10).
Manager of Airport Maintenance was Sarah McKeon. (DSMF
¶14; PRS ¶14). Albert Kosakowski, who reported to
McKeon, was the Chief Maintenance Supervisor during the
relevant time period, and was responsible for the daily
management of Unit 329. (DSMF ¶11; PRS ¶11).
Kosakowski had five supervisors who reported to him,
including Maintenance Unit Supervisor William Lynch. Lynch
was Miller's direct supervisor. (DSMF ¶12; PRS
329 has fourteen allotted USM positions. (DSMF ¶15; PRS
¶15). Those fourteen USM positions provide essential
coverage twenty-four hours per day, seven days a week, 365
days a year. (DSMF ¶¶16, 50; PRS ¶¶16,
USMs in this unit are members of a union, the International
Union of Operating Engineers, and are subject to a collective
bargaining agreement. (DE 63-13 (Memorandum of Agreement
("MOA") between The Port Authority of New York and
New Jersey and International Union of Operating Engineers,
AFL-CIO Local 15, Local 30, and Local 68 (effective Mar. 4,
2002-Oct. 3, 2006)); See DSMF ¶27; PRS ¶27).
incorporates by reference Information Bulletin No. 38,
"Seniority." (DSMF ¶38; PRS ¶38; DE
63-19). Four of the fourteen USM positions are designated as
"regular day tours," which are offered to the USMs
with the most seniority. (DSMF ¶15; PRS ¶15). The
regular day tour is a set shift from Mondays through Friday,
7 AM to 3 PM. (DSMF. ¶15).
remaining ten positions are assigned to a rotating shift
schedule. (DSMF ¶16; PRS ¶16). Pursuant to the
schedule, for a particular day an employee is assigned to the
A shift (11 PM to 7 AM), B shift (7 AM to 3 PM), C shift (3
PM to 11 PM), or the R (relief) shift.
rotating schedule repeats itself every thirty-five days.
(DSMF ¶17; PRS ¶17). That rotational
thirty-five-day cycle is as follows:
(1) Seven consecutive working days on the A Shift (11 PM to 7
AM) from Tuesday to Monday;
(2) Two regular days off ("RDO") on Tuesday and
(3) Seven consecutive working days on the C Shift (3 PM to 11
PM), from Thursday to Wednesday;
(4) Two RDOs on Thursday and Friday;
(5) Six consecutive working days on the B Shift (7 AM to 3
PM) from Saturday to Thursday,
(6) RDOs on Friday, Saturday, and Sunday;
(7) Four consecutive days of working the Relief Shift
("R Shift") from Monday to Thursday (7 AM to 3 PM);
(8) B shift on Friday; and (9) Three RDOs on Saturday,
Sunday, and Monday.
(DSMF ¶17; PRS ¶17).
USMs are assigned to each A, B, and C shift - one to the
central heating and refrigeration plant, and the other to the
field. (DSMF ¶¶18, 20; PRS¶18).
a two-week period, each USM is scheduled to work no more than
eighty hours, and is entitled to four regular days off
(RDOs). (DSMF ¶36; PRS ¶36). USMs work not fewer
than four but not more than seven consecutive days.
(Id.). Those consecutive days must be on the same
shift (A, B, or C). (Id.). The ten rotating USMs
have approximately the same No. of Fridays and Saturdays off
during a given calendar year. Each USM is entitled to two
Fridays and two Saturdays off as RDOs during each
thirty-five-day cycle. (DSMF ¶¶26, 103; PRS
schedules are posted thirty days in advance. Any change that
occurs less than thirty days in advance requires payment of a
"shift-change premium," which amounts to a standard
half-day's pay in addition to normal salary. (DSMF
¶36; PRS ¶36). A USM is entitled to time-and-a-half
if he or she is required to work additional time over the
normal schedule (or over forty hours per week).
USM assigned to an A, B, or C shift calls out or is absent
from work Monday through Thursday, then a Relief Shift USM is
reassigned to cover that absence. (DSMF ¶¶22-23;
PRS ¶¶22-23). For such a routine substitution, the
employer does not have to pay a shift-change premium. (DSMF
¶41; PRS ¶41).
event that an R Shift employee is not scheduled, and thus
cannot cover an employee absence, or there is a shift vacancy
(as opposed to a onetime absence), an overtime equalization
roster is used to determine which USM will cover the shift.
(DSMF ¶29; PRS ¶29). The shift vacancy is assigned
to the USM with the least amount of overtime who volunteers
and is available. (Id.). In the event that no one
volunteers, then the USM who has the least amount of overtime
hours is required to work. (Id.).
does not deny that this rotating schedule is in place. (PRS
¶I7). He disputes, however, that the MOA confines the
use of an R Shift substitute to the period Monday-Thursday.
Rather, he contends that an R Shift USM could be scheduled
Friday through Sunday as well. (PRS ¶¶21-22). He is
correct that the MOA does not explicitly confine R Shift
substitutions to the Monday-Thursday period. (See generally
DE 63-13). The MOA requires, however, that past practices be
maintained, and Port Authority states that these work
schedules are considered to be bargained-for "past
practices." (DSMF ¶¶32-34). Because R Shift
substitutions have long been scheduled for Monday through
Thursday only, that regime is preserved and protected by the
MOA. Miller does not offer any evidence in opposition to the
employer's past-practices evidence. Miller points out
that workers call out sick, which results in schedule
modifications, and that Port Authority does not use computer
software to make a schedule in the first instance. (PRS
¶34, PSMF ¶¶69-72). These contentions are not
on point; they do not create a dispute as to the fact that
the structure of the schedule, and its lines, are past
practices that are protected by the collective bargaining
agreement with the union.
Authority offers evidence that any change to the current
structure of the schedule would have to be bargained for and
incorporated in a new MOA. (DSMF ¶46). In conclusory
terms, Miller denies that "reasonably accommodating Mr.
Miller would have violated any Port Authority scheduling
rules and practices." (PRS ¶46). He points out that
there were times when Port Authority had vacant positions
that required coverage and, as a result, incurred a premium
payment. (PSMF ¶82-84). Again, this does not quite meet
Port Authority's point.
provides for various forms of absences or variations to this
rotational schedule. (DE 63-13). To submit a time off
request, a USM must choose whether the time will be deducted
from allotted personal, sick, compensatory, or vacation days.
(DSMF ¶47; PRS ¶47). The MOA allows each USM to
initiate two "mutual swaps" per month with another
USM. (DSMF ¶28; PRS ¶28; DE 63-3, at 9). Every USM
is entitled to three personal excused days (twenty-four
hours) for each calendar year. (DE 63-13, at 12).
also governs use of compensatory time. A USM may accrue up to
160 hours annually of "compensatory time" for hours
worked in excess of a forty-hour work week. (DSMF
¶29(a); DE 63-13, at 10). Each calendar year, an
employee may convert sixteen hours of compensatory time to
personal excused time. (Id.). At the time of his
termination, Miller had six hours of compensatory time
remaining. (PRS ¶29).
covers use of vacation time as well. A newly-hired USM, if
hired in January like Miller, is entitled to ten vacation
days. (DE 63-13, at 48; DSMF ¶30). Vacation preferences
are honored based upon seniority. (DSMF ¶40). During
Miller's deposition, he testified that he had a
"basic understanding" of his vacation benefits, but
did not "remember" what that meant or how many
vacation days he had received upon his hire. (DE 63-9, at
39:14-19, 50:22-24, 81:23-25). He also did not know whether
or not he was entitled to a full vacation allotment at the
time of his hiring. (Id. at 40:3, 81:23-25). In
opposition to Port Authority's motion for summary
judgment, however, Miller certified that he believed he had
zero accrued vacation days at the time of his separation.
(Miller Cert. ¶¶8-9.)- The stated basis for that
belief-that he received no payout for unused vacation upon
his separation-is invalid. Under the MOA, only an employee
with at least nine months of service, not terminated for
cause, is entitled to a vacation allowance upon separation.
(DE 63-13, at 47). Miller's separation notice states that
he has less than nine months of service, and that therefore
he is not entitled to a vacation allowance or payout. (DE
68-17). Again, Miller's evidence is not responsive; it
establishes that he was not permitted to cash out his
vacation time upon separation; it does not establish that he
had not then accrued any vacation time that he could have
used if his employment had continued.
Miller's accrued vacation time, Port Authority offers
conclusive evidence. Miller's payroll records, including
his timesheets, show that he was initially credited with
eighty (80) hours of vacation time; twenty-four (24) hours of
personal excused time; and eight (8) hours of sick leave on
January 4, 2015. (DE 76-4). Every paycheck Miller received
thereafter showed his current balance of accrued time,
including the eighty hours of vacation time. (Id.).
These are undisputed matters of routine administration.
Miller's subjective beliefs regarding the meaning of the
separation notice and his unsupported assumptions regarding
the use of vacation time do not establish an issue of
Miller's Background and Employment with Port Authority
is an adherent of the Jewish faith. (PSMF ¶3). Miller
was hired as a USM on January 2, 2015. (DSMF ¶5; PRS
¶5). The USM job posting provides that "USMs work a
40-hour week, which includes working rotating shifts, nights,
weekends, holidays, overtime on short notice, and working
during inclement weather." (DSMF ¶49). Miller
denies that he saw this exact posting, but believes he saw a
similar one. (DE 63-9, at 57:7-18). In his job application,
Miller stated that he desired to work any shift. (DSMF
¶51; PRS ¶51).
being placed on the rotational schedule, USMs go through an
indoctrination period, during which they learn the buildings,
systems, and locations of EWR. (DSMF ¶53; PRS ¶53).
An indoctrination period may last between two weeks and two
months, depending on the particular employee's
familiarity with the equipment and knowledge base.
(Id.). Miller's indoctrination period lasted
from January 2, 2015 to February 23, 2015. (DSMF ¶55;
PRS ¶55). During the indoctrination period, an employee
is not assigned to the rotational schedule. (DSMF ¶54;
PRS ¶54). It is only upon completion of the
indoctrination period that a USM is placed in a line on the
rotational schedule. (DSMF ¶56; PRS ¶56).
January 5, 2015, Miller requested a religious accommodation.
Specifically, he requested that he not be scheduled to work
on the Jewish Sabbath (which begins at sunset on Friday, and
ends at sunset on Saturday), or on Jewish holidays. (DSMF
¶57; PRS ¶57).
Fridays, Miller requested that he be permitted to leave work
at least four hours before sunset. (PRS ¶58). For
Saturdays, Miller stated that he could begin working two
hours after sunset. (DSMF ¶59; PRS ¶59). Thus
Miller's preferred accommodation amounted to a request
that he not work any B or C shifts on Fridays, and not work
any shifts at all on Saturdays. (DSMF ¶98; PRS
¶98). Miller testified that, in addition, he observed
the following eight religious holidays: Purim; Passover;
Shavuot; Rosh Hashanah; Yom Kippur; Sukkot, Shemini Atzeret,
and Simchat Torah. (DSMF ¶60; PRS ¶60). These
holidays would not, however, necessarily require eight
additional exemptions; some did not require that he abstain
from work, and others coincided with the Sabbath. (PSMF
made his accommodation request to Lynch, his direct
supervisor. (PSMF ¶16). That accommodation request went
up the supervisory chain to McKeon. (DSMF ¶61). Miller
says that on January 5, 2015, the same day he made the
request, he was brought into a meeting with McKeon, Lynch,
Kosakowski, and Michael Hogan (the union representative).
(PSMF ¶18). McKeon told Miller that Port Authority would
not be able to accommodate Miller, at least not in the manner
requested. (PSMF ¶19).
that week, Miller claims, Lynch indicated to him that this
was to be his last day of work. (PSMF ¶20). This
particular statement is not cited to the record. (See id.).
The closest support the Court could locate was Miller's
deposition testimony, which was as follows:
Q: When was the next time that you had a conversation with
anyone at Newark Airport about your religious observances?
A: I believe it was Friday.
Q. Who did you speak with?
A. Billy Lynch.
Q. What did you say to him?
A. Among other conversations.
Q. What did you say to him?
A. Billy Lynch said - I was under the impression that Friday
was going to be my last day.
A. And Billy Lynch came over to me and asked me, "Okay,
Gary, is that it?" And I just said I just need a letter
stating that you couldn't accommodate me." And he
said, "Let me see." And he went to - then we had
another meeting with Sarah McKeon. She had questioned why I
need the letter since I'm still employed with Port
Authority. At which I said, "Okay, if I'm employed
then I don't need the letter."
Q. Did you ask her if she would be able to accommodate you?
A. I don't remember.
Q. Why did you think that Friday, meaning four days after you
started, would be your last day?
A. For some reason I thought that's what they told me at
the meeting. I can't tell you exactly why I thought that,
but that's what kind of entered my head.
(DE 63-9, at 49:2-21). These equivocal statements of what
Miller "thought" do not establish that Port
Authority communicated to Miller that he was going to be
fired in the first week of January, and in fact he was
parties dispute the degree of investigation that McKeon
undertook to determine whether Miller's preferred
accommodation could be granted. Miller faults McKeon for
failing to review the rotational schedule with Kosakowski or
Lynch, who created the schedule. (PSMF ¶28-30). Miller
also notes that McKeon did not figure out the exact cost or
impact on particular staff of granting Miller his preferred
accommodation. (Id. ¶¶31-32). There
appears to be no dispute, however, that McKeon reviewed the
USM schedules for January and February of 2015; ascertained
past practices; considered the constraints of the MOA; and
assessed the potential impact on employee morale if
Miller's co-employees were required to work additional
weekends. (PSMF ¶26; DSMF ¶¶65, 66).
motion for summary judgment, Miller claims that his request
for an accommodation was rejected by Port Authority the same
day he made it (January 5, 2015). That decision, he says, was
the final one, and no further accommodation was ever offered
to him thereafter. The Port Authority's rejection of
Miller's preferred accommodation on January 5, 2015 does
not imply that Miller was never offered any accommodation
after January 5, 2015, or that there were no subsequent
meetings to discuss the accommodation. (PRS ¶75). On
that issue, all Miller really offers is a failure of
recollection. During his deposition, Miller testified that he
did not remember whether anyone from Port Authority spoke to
him about his options to use various forms of leave so that
he could take time off for religious purposes:
Q. Do you remember having discussions with anyone at the
facility or HR or any other Port Authority employee about
what your options could be so that you could take time off
for your religious observances?
A. I don't remember.
(DE 63-9, at 85:15-20)
contrast, Port Authority has proffered actual evidence of
further attempts to accommodate Miller. True, it did not
grant Miller his requested blanket exemption for every
Sabbath and holiday. It did, however, offer Miller the option
of using mutual swaps, and told him that he ...