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Miller v. The Port Authority of New York & New Jersey

United States District Court, D. New Jersey

November 13, 2018

GARY MILLER, Plaintiff,



         This 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.

         The 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.

         Miller 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.

         Miller 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.

         In 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 subsequently terminated.

         Miller 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.

         The 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.

         On this 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.

         I. FACTS[1]

         As 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.

         A. Unit 329 at EWR

         On 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).

         The 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 ¶12).

         Unit 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, 50).

         The 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).

         The MOA 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).

         The 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.

         The 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 Wednesday;
(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).

         Two 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).

         During 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 ¶¶26, 103).[2]

         Work 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). (Id.).

         If a 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).

         In the 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.).

         Miller 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[3] 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.

         Port 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.

         The MOA 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).

         The MOA 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).

         The MOA 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.

         Regarding 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 material fact.

         B. Miller's Background and Employment with Port Authority

         Miller 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).

         Before 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).

         On 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).

         For 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 ¶92).

         Miller 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).

         Later 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.
Q. Okay.
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 not.[4]

         The 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).

         In this 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:[5]

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)

         In 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 ...

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