RODRIGUEZ v. VERIZON COMMUNICATIONS
Filing
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OPINION. Signed by Judge Madeline Cox Arleo on 5/30/2018. (sm)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JAMES ANTHONY RODRIGUEZ,
Plaintiff,
Civil Action No. 16-4202
v.
OPINION
VERIZON COMMUNICATIONS,
Defendant.
ARLEO, UNITED STATES DISTRICT JUDGE
THIS MATTER comes before the Court on cross-motions for summary judgment filed
by pro se Plaintiff James Anthony Rodriguez (“Rodriguez” or “Plaintiff”), ECF No. 29, and by
Defendant Verizon New Jersey Inc. (“Verizon” or “Defendant”), ECF No. 28. For the reasons set
forth below, Plaintiff’s Motion is DENIED and Defendant’s Motion is GRANTED.
I.
BACKGROUND
This case arises out of a request for particular workplace accommodations by a Sabbathobserving employee. Plaintiff has been employed by Verizon as a Facilities Technician since
November 2006. Plaintiff’s R.56.1 Statement of Material Facts (hereinafter “Pl. SOMF”) ¶ 1, ECF
No. 29. In that capacity, Plaintiff installs telephone, internet, and television services for Verizon
on customers’ premises. Id.; Defendant’s R.56.1 Statement of Material Facts (hereinafter “Def.
SOMF”) ¶ 2, ECF No. 28.5. Plaintiff works out of Verizon’s Grove Street location in Jersey City,
New Jersey. Def. SOMF ¶ 1. In January 2008, Plaintiff became a member of the Living Church
of God, a Christian denomination whose members observe a weekly Sabbath from sunset on Friday
to sunset on Saturday in addition to 10 to 12 holy days per year. Pl. SOMF ¶ 2; Def. SOMF ¶¶
1
17-18; Rodriguez Deposition Transcript (“Rodriguez Dep.”) 70:5-13. In July 2015, Plaintiff
became a member of “the Church of God, a Worldwide Association,” another religious institution
within the same denomination whose members observe the same Sabbath and holy days.
Pl.
SOMF ¶ 2; Def. SOMF ¶¶ 17-18. Plaintiff’s sincerely held religious beliefs prohibit him from
working during his weekly Sabbath or during the holy days. Pl. SOMF ¶ 2. Plaintiff has regularly
informed Verizon of such since 2009. Def. SOMF ¶ 41; Rodriguez Dep. 96:9-97:19.
Verizon Facilities Technicians who work eight-hour shifts, as Plaintiff does, rotate through
four possible schedules or tours. Def. SOMF ¶ 12. Facilities Technicians may be scheduled to
work from Sunday to Thursday, 7:30 a.m. to 4:30 p.m.; Monday to Friday, 7:30 a.m. to 4:30 p.m.;
Monday to Friday, 11:00 a.m. to 8:00 p.m.; and a Monday to Saturday schedule where Facilities
Technicians work on Saturday and on four of the five preceding work days. Id. ¶ 13. The day off
for this Saturday schedule “differs every week.” Id. The Sunday to Thursday shift pays an
additional “four hours;” the Monday to Friday, 11:00 a.m. to 8:00 p.m. shift pays an additional “10
percent [of] current pay.” Id. ¶ 14. Facilities Technicians rotate through these four shifts because
Verizon operates seven days per week. Id. ¶ 12. A “department off-site” creates the schedule and
Facilities Technicians receive notice of their upcoming schedules “about a month in advance.” Id.
¶¶ 8, 11.
Plaintiff, like all Facilities Technicians at Verizon, is a member of the International
Brotherhood of Electrical Workers (“IBEW”), and the terms and conditions of his employment are
governed by a collective bargaining agreement (“CBA”) between the IBEW and Verizon. Def.
SOMF ¶ 4. The CBA requires Verizon to keep Sunday assignments “to as low a number as will
meet the service needs of the business” and requires Verizon to issue periodic reports concerning
the number of Sunday assignments to the IBEW. Id. ¶ 10. Per the CBA, Plaintiff receives three
2
weeks paid vacation, four personal paid days off and one unpaid day off. Id. ¶¶ 5-6. According
to the CBA, two of the three weeks of vacation must be taken in blocks; however, Verizon does
“not enforce[]” this requirement, and has allowed Plaintiff to “take a day at a time.” Id. ¶ 7.
During his employment at Verizon, Plaintiff has been scheduled for shifts that conflict with
his Sabbath observance. In months that have four Saturdays, Plaintiff is typically scheduled for
two of those Saturdays; in months with five Saturdays, Plaintiff is typically scheduled for three of
those Saturdays. Id. ¶ 16. However, since he joined the Living Church of God and began
observing his Sabbath in 2008, Plaintiff has not actually worked a single shift that conflicts with
his Sabbath. Id. ¶¶ 19-22, 32; Rodriguez Dep. 91:24-92:4, 111:8-10. When assigned to a Saturday
shift, Plaintiff has been permitted to swap shifts with another Facilities Technician or to take a paid
or unpaid day off.1 Def. SOMF ¶ 21. And when assigned to the Monday to Friday, 11 a.m. to 8
p.m. shift during the winter months, Plaintiff has been permitted to switch to the 7:30 a.m. to 4:30
p.m. schedule on Fridays so that he can cease working before sundown. Id. ¶ 20.
Plaintiff contends, however, that this arrangement still fails to adequately accommodate
his religious requirements. He asserts that his religious tenets not only require that he not work on
his Sabbath, but also prevent him from making others work—i.e. by swapping shifts with them—
on his Sabbath, and that he has informed Verizon of such. Rodriguez Dep. 78:11-21, 96:9-97:17,
see also Pl. SOMF ¶¶ 3, 8.2 That Plaintiff has not had to work during his Sabbath is not the basis
1
From 2008 until February 2015, Plaintiff avoided working on his Sabbath by swapping shifts
with other Facilities Technicians. He maintains that the practice of shift swapping was “against
[his] religious beliefs, but [he] did it anyway.” Rodriguez Dep. 78:11-12. In February 2015, he
stopped swapping shifts and began only taking paid and unpaid days off in order to avoid working
during his Sabbath. Id. 82:22-24.
2
Plaintiff’s Statement of Material Facts (“SOMF”) contains few citations to sworn or record
evidence as required by Fed. R. Civ. P. 56(c). Because Plaintiff’s statements in his SOMF
concerning his own religious beliefs are corroborated by his own deposition testimony, the Court
will credit these statements in deciding the instant Motions.
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of his claim; rather he claims that Verizon has nonetheless has failed to accommodate him3 by
requiring him to swap shifts. Because he did not want to ask others to work on the Sabbath, he
was effectively forced to use all of his paid and unpaid days off to observe his religious obligations.
By assigning him to work on approximately 26 Saturdays per year 4 and providing him with 19
paid days and one unpaid day off per year, Verizon has failed to adequately accommodate his
religious needs, Plaintiff claims.5 He has kept a running spreadsheet of the hours that he has been
assigned that conflict with his Sabbath, whether he used a paid or unpaid day to observe his
Sabbath, and how much pay he believes he lost in order to observe his Sabbath. Pl. SOMF ¶ 15;
Def. SOMF ¶ 46. He estimates that, since May 2015, he has “lost” $13,993.03. Pl. SOMF ¶ 14.6
Verizon has twice offered Plaintiff a transfer to a construction position with fewer Saturday
shifts. Def. SOMF ¶¶ 25-26. Plaintiff rejected this transfer because the offered position would
reduce, but not eliminate, his need to take vacation and personal days on Saturdays and would
provide him with fewer opportunities to accrue overtime benefits. Id. ¶ 27; Rodriguez Dep.
119:18-120:12. He stated in a written response to the offer that such a transfer would result in him
earning approximately $5,000 to $10,000 less per year. Def. SOMF ¶ 28.
3
Plaintiff has not identified any disciplinary or retaliatory consequences for swapping shifts or
taking days Saturdays off other than a general attitude of “reluctan[ce]” from his supervisors when
he brings up the subject of his accommodations. Rodriguez Dep. 84:17-85:10, 111:7. Plaintiff
identified an incident where he was “written up . . . in 2011, sometime after [he] told [his
supervisor] about [his] religious beliefs,” but then admitted that the incident was related to his
failure to lock his truck and that “as far as [he knew],” it had nothing to do with his observance of
his Sabbath. Def. SOMF ¶ 35.
4
This figure is based on the Court’s understanding that scheduling Plaintiff for three Saturdays
per month in months with five Saturdays and two Saturdays per month in months with four
Saturdays results in scheduling Plaintiff for approximately every other Saturday, or half of the 52
Saturdays per year. See Def. SOMF ¶ 16.
5
See Rodriguez Dep. 88:3-5 (Plaintiff stating that he believes he “shouldn’t have to use all [his]
time off”); id. at 112:1-10 (Plaintiff stating that he believes Verizon is not giving him the
accommodation he believes the law requires).
6
This figure is unsupported by sworn evidence as is required by Rule 56(c).
4
Instead, Plaintiff seeks a specific accommodation: rather than rotate him through the four
possible schedules for Facilities Technicians, Verizon should rotate him through the three that do
not interfere with his Sabbath observance and allow him to use his vacation and personal days to
observe the 10 to 12 holy days and for any vacation or personal emergencies that arise. Rodriguez
Dep. 90:7-10; Pl. SOMF ¶ 15; Def. SOMF ¶ 44; Amended Complaint, ECF No. 19. Plaintiff
brings this action pro se under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
insisting that anything less amounts to discrimination for failure to accommodate his religious
practices. Am. Compl., ECF No. 19.
On April 11, 2016, Plaintiff received a Notice of Right to Sue from the EEOC. Def. SOMF
¶ 50. On July 8, 2016, Plaintiff filed the instant action. ECF No. 1. Plaintiff seeks back pay for
the paid vacation and personal days and the unpaid days he used to observe his Sabbath, along
with reimbursement for “legal consultations” and punitive damages.
II.
LEGAL STANDARD
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories,
admissions, and affidavits show that “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986). “Summary judgment may be granted only if
there exists no genuine issue of material fact that would permit a reasonable jury to find for the
nonmoving party.” Miller v. Ind. Hosp., 843 F.2d 139, 143 (3d Cir. 1988).
When the Court considers a motion for summary judgment, “all facts and inferences are
construed in the light most favorable to the non-moving party.” Boyle v. Cty. of Allegheny
Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). However, “a plaintiff cannot resist a properly
supported motion for summary judgment merely by restating the allegations of his complaint, but
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must point to concrete evidence in the record that supports each and every essential element of his
case.” Orsatti v. New Jersey State Police, 71 F.3d 480, 484 (3d Cir. 1995). Although the Court
must liberally construe submissions by pro se litigants, such submissions “are still required to
comply with Rule 56.” Schock v. Baker, 663 F. App’x 248, 252 (3d Cir. 2016).
III.
ANALYSIS
Verizon argues that Plaintiff has failed to allege a prima facie case of religious
discrimination in violation of Title VII because he has failed to demonstrate that he suffered any
adverse or disciplinary consequences for observing his Sabbath. Alternatively, Verizon argues that
it has reasonably accommodated Plaintiff and that to provide Plaintiff’s requested accommodation
would constitute an undue hardship on Verizon. The Court disagrees that Plaintiff has failed to
plead a prima facie case of discrimination, but agrees that Verizon has reasonably accommodated
him.
Title VII prohibits an employer from “discriminat[ing] against any individual with respect
to his compensation, terms, conditions, or privileges of employment, because of such individual’s
. . . religion.” 42 U.S.C. § 2000e-2(a)(1) (emphasis added). “Religion” is defined to include “all
aspects of religious observance and practice, as well as belief, unless an employer demonstrates
that he is unable to reasonably accommodate to an employee’s . . . religious observance or practice
without undue hardship on the conduct of the employer’s business.” Id. § 2000e(j). To establish
a prima facie case of religious discrimination, a plaintiff must demonstrate “‘(1) she holds a sincere
religious belief that conflicts with a job requirement; (2) she informed her employer of the conflict;
and (3) she was disciplined for failing to comply with the conflicting requirement.’” E.E.O.C. v.
GEO Group, Inc., 616 F.3d 265, 271 (3d Cir. 2010) (citing Webb v. City of Philadelphia, 562 F.3d
256, 259 (3d Cir. 2009)).
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Plaintiff has demonstrated that he meets the prima facie test. He holds a sincere religious
belief that conflicts with working on his Sabbath and holy days and with asking others to work in
his place on those days. Pl. SOMF ¶ 2, Rodriguez Dep. 78:11-21, 96:9-97:17. He has regularly
informed Verizon of such. Def. SOMF ¶ 41; Rodriguez Dep. 96:9-97:19. And while he has not
alleged that he was disciplined or terminated for refusing to work on his Sabbath (indeed, Plaintiff
is still employed by Verizon), he has demonstrated that he suffered at least some pecuniary harm
because he had to exhaust personal and vacation days and take unpaid days off to avoid working
during his Sabbath and holy days. See Pl. SOMF ¶ 15; Def. SOMF ¶ 46.
Once a plaintiff has pled a prima facie case of religious discrimination in violation of Title
VII, the burden “‘shifts to the employer to show either [1] it made a good-faith effort to reasonably
accommodate the religious belief, or [2] such an accommodation would work an undue hardship
upon the employer and its business.’” E.E.O.C., 616 F.3d at 271 (citing Webb, 562 F.3d at 259).
Verizon has demonstrated that it reasonably accommodated Plaintiff’s religious beliefs.
The undisputed facts demonstrate that Verizon has made multiple good-faith attempts to
reasonably accommodate Plaintiff’s religious obligations. The record is clear that Plaintiff has
never actually had to work on his Sabbath or holy days, nor has he faced any negative employment
consequences for this. Def. SOMF ¶¶ 19-22, 32. Under Verizon policy, Plaintiff is permitted to
swap with other employees who do not share Plaintiff’s religious briefs, an accommodation
plaintiff has rejected. Alternatively, Verizon has allowed him to take his vacation days one at a
time, rather than in a block (as required by the CBA) to accommodate his Sabbath and holy day
observance. Id. ¶¶ 7, 30. Verizon has allowed him to take unpaid days off in excess of the one
allotted to him under the CBA. Id. ¶¶ 21, 30. And Verizon has offered—at least twice—to shift
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Plaintiff into a role with fewer Saturday assignments to reduce the number of vacation, personal,
and unpaid days that he must take. Id. ¶¶ 24-29, 31.
Plaintiff counters that these accommodations are unreasonable. He argues that shift
swapping, while perhaps an acceptable accommodation for other Sabbath observers, is not an
acceptable accommodation for him as it violates his religious practices. Plaintiff’s Brief at 13-14,
ECF No. 29. He argues that requiring him to use of all of his vacation days and a large number of
unpaid days off is unreasonable as it places him in a financially “vulnerable position.” Id. The
Court disagrees.
The Supreme Court has found accommodations such as those offered by Verizon
reasonable. In Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), the Court held that an
employer reasonably accommodated a Sabbath-observing employee (and Worldwide Church of
God member) when it met with him to “attempt[] to find a solution,” accommodated the
observance of his religious holidays, attempted to allow him to swap shifts, and “attempted without
success to find” him a different position, even though the employer eventually fired the employee
for refusing to work during his Sabbath. Id. at 77. And in Ansonia Bd. of Educ. v. Philbrook, the
Supreme Court held that allowing a Sabbath-observing employee (and Worldwide Church of God
member) to take unpaid leave in excess of the days allocated to him by contract so that he could
observe his holy days was a reasonable accommodation. 479 U.S. 60, 70-71 (1986). The Supreme
Court wrote:
The provision of unpaid leave eliminates the conflict between employment
requirements and religious practices by allowing the individual to observe fully
religious holy days and requires him only to give up compensation for a day that he
did not in fact work. Generally speaking, “[t]he direct effect of [unpaid leave] is
merely a loss of income for the period the employee is not at work; such an
exclusion has no direct effect upon either employment opportunities or job status.”
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Id. (citing Nashville Gas Co. v. Satty, 434 U.S. 136, 145 (1977)). Plaintiff has not alleged
that his use of unpaid leave has resulted in reduced “employment opportunities or job status”—
only that he has not earned money he could have earned had he been assigned to a different shift—
so Plaintiff’s argument that the accommodation is unreasonable must fail. Id.; see also Thomas v.
National Ass’n of Letter Carriers, 225 F.3d 1149, 1156 (10th Cir. 2000) (holding that allowing an
employee to observe his Sabbath through shift swaps and unpaid leave was a reasonable
accommodation); Ellington v. Murray Energy, No. 07-766, 2010 WL 3855277, at *11 (D. Utah
Sept. 30, 2010) (holding that an employer reasonably accommodated an employee by allowing
him to swap shifts or use paid and unpaid days to observe his Sabbath); Guy v. MTA New York
City Transit, No. 10-1998, 2012 WL 4472112, at *8 (E.D.N.Y. Aug. 6, 2012), R&R adopted, 2012
WL 4472098 (E.D.N.Y. Sept. 26, 2012) (rejecting Plaintiff’s argument that his employer should
“change his work schedule so that he had Saturdays off, instead of requiring him to use paid and
unpaid leave, [because] Title VII ‘does not require that the employer offer the specific
accommodation the employee seeks.’”) (citing Durant v. Nynex, 101 F. Supp. 2d 227, 234
(S.D.N.Y. 2000)); Shelton v. Univ. of Med. & Dentistry of New Jersey, 223 F.3d 220, 225 (3d Cir.
2000) (citing Philbrook, 479 U.S. at 68-69)) (“[A] sufficient religious accommodation need not be
the ‘most’ reasonable one (in the employee’s view), it need not be the one the employee suggests
or prefers, and it need not be the one that least burdens the employee.”). That Plaintiff maintains
he cannot swap shifts without violating his religious practices does not change the fact that unpaid
leave has consistently been found to be a reasonable accommodation, and is so here.
Here, the undisputed facts lead to the conclusion that Verizon has made a good faith effort
to reasonably accommodate Plaintiff’s religious beliefs: allowing him to swap shifts; alternatively
allowing him to take single paid and unpaid vacation days, contrary to the CBA; offering him
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another position that would require fewer Sabbath shifts (and allow him to avoid unpaid days off);
allowing him to take more unpaid days than the CBA allows. These various alternatives speak to
good faith and reasonableness.
Because Verizon has demonstrated that it “reasonably
accommodated [Plaintiff’s] religious needs, the statutory inquiry is at an end. The employer need
not further show that each of the employee’s alternative accommodations would result in undue
hardship.” Shelton, 223 F.3d at 226 (citing Philbrook, 479 U.S. at 68). Accordingly, Verizon is
entitled to summary judgment.
IV.
CONCLUSION
For the reasons set forth herein, Defendant’s Motion for Summary Judgment, ECF No. 28,
is GRANTED and Plaintiff’s Motion for Summary Judgment, ECF No. 29, is DENIED. An
appropriate Order accompanies this Opinion.
Dated: May 30, 2018
/s Madeline Cox Arleo__________
Hon. Madeline Cox Arleo
United States District Judge
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