Jamil v. Holder

Filing 29

MEMORANDUM AND ORDER: For the reasons stated in the attached, Defendant's motion for summary judgment is DENIED. The case will proceed on the question of whether accommodating Plaintiff's religious observance would have imposed an undue burden upon Defendant. Ordered by Judge Pamela K. Chen on 3/6/2017. (Gregorio, Heather)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
LIRON JAMIL,
Plaintiff,
- against -

MEMORANDUM & ORDER
14-CV-2355 (PKC) (RLM)

JEFF SESSIONS, as Attorney General,
Defendant.
-------------------------------------------------------x

PAMELA K. CHEN, United States District Judge:
Plaintiff Liron Jamil brings this action against Defendant Jeff Sessions, 1 alleging
religious discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq. (“Title VII”), on the basis that the Bureau of Prisons (“BOP”) failed to
accommodate his religion (Orthodox Judaism). Defendant 2 now moves for summary judgment.
For the reasons discussed below, the Court DENIES Defendant’s Motion for Summary
Judgment, finding that a reasonable jury could conclude that Defendant failed to prove that it
reasonably accommodated Plaintiff or that it would be unable to do so without incurring undue
hardship.

1

Pursuant to Federal Rule of Civil Procedure (“FRCP”) 25(d), Jeff Sessions, who was
sworn in on February 9, 2017 as Attorney General, has been automatically substituted for Eric
Holder as the sole defendant. The Clerk’s Office is respectfully directed to change the caption of
the docket to reflect this substitution.
2

Although Attorney General Sessions is the nominal Defendant in this action, because he
is named solely in his capacity as the representative of the BOP, the Court uses the impersonal
pronoun “it”, rather than “he”, when referring to Defendant in this opinion.

BACKGROUND 3
I.

THE FACTS
A.

The Parties

Plaintiff Liron Jamil (“Plaintiff” or “Jamil”) is an Orthodox Jew who refrains from work
on the Sabbath as part of his faith. (Dkt. 24 (“Def’s Exs.”), Ex. B, at 9–10, 19–20). The Sabbath
is a 25-hour period starting at sunset on Friday and ending one hour after sunset on Saturday.
(Dkt. 24-2 (“Def. 56.1”) ¶ 2.)
Metropolitan Detention Center (“MDC”) Brooklyn is the largest federal detention center
within the Bureau of Prisons (“BOP”). (Def. 56.1 ¶ 9.) MDC Brooklyn receives and discharges
inmates 24 hours per day and seven days per week. (Def. 56.1 ¶ 10.) During Plaintiff’s
employment, MDC Brooklyn housed approximately 2,500 inmates and employed more than 500
staff members, 320 of whom were correctional officers. (Def. 56.1 ¶¶ 11, 20; Def. Ex. K (“Hess
Deposition”) at 6.) According to Defendant, during a 25-hour period, approximately 176 officers
were required to maintain the security of MDC Brooklyn. (Def. 56.1 ¶ 12.)
Frank Strada became the warden of MDC Brooklyn in approximately June 2011. (Def.
56.1 ¶ 13.) As the warden, he was responsible for the overall security and safety of the
institution and the correctional officers. (Def. 56.1 ¶¶ 16, 82.)
Douglas Hess was a captain at MDC Brooklyn during Plaintiff’s employment at the
facility, and was the chief correctional services supervisor. (Def. 56.1 ¶¶ 17–18.) Hess oversaw
the staffing of the correctional services roster, “making sure that no post went unassigned and
that security was not compromised.” (Def. 56.1 ¶ 19.) He oversaw the staffing of approximately
3

The facts in this section are taken from the parties' Rule 56.1 submissions and the record
evidence cited therein. Unless otherwise noted, a standalone citation to a Rule 56.1 Statement
denotes that the Court has deemed the underlying factual allegation undisputed. Any citations to
a party's Rule 56.1 Statement incorporates by reference the documents cited therein, though
where relevant, the Court has cited directly to those underlying documents.
2

320 correctional officers to fill 200 different posts at MDC Brooklyn. (Def. 56.1 ¶ 20.) Staff
requests for sick time, days off, and annual leave were handled by the Administrative Lieutenant
or the Deputy Captain, who in April 2013 was Richard Wolfe. (Def. 56.1 ¶¶ 24–25.)
During Plaintiff’s employment at MDC Brooklyn, Elizabeth Marin-Rodriguez was the
Human Resources manager, and was responsible for coordinating staffing, training, benefits, and
incentive awards, as well as responding to labor grievances. (Def. 56.1 ¶¶ 27, 29.)
B.

Plaintiff’s Application Process and Initial Employment

Plaintiff applied to work as a correctional officer with the BOP in 2013. (Def. 56.1 ¶¶
30–31.) He submitted an online application, his resume, and other documentation, and had two
interviews. (Def. 56.1 ¶¶ 31–32.) In the course of the interviewing process, Plaintiff was told
that correctional officer shifts varied, that the position included work on holidays and during
weekends, and that correctional officers worked rotating schedules. (Def. 56.1 ¶ 33.) Plaintiff
was not asked if he would be able to work Friday evenings or Saturdays, and Plaintiff did not
inform anyone during the interview process that he would be unable to work during those hours.
(Def. 56.1 ¶ 34; Pl. 56.1 Counterstatement ¶ 34.)
The correctional officer job description stated that “[d]uring institution emergencies or
other periods of heavy workload or limited staff, correctional officers may be required to work
long and irregular hours, unusual shifts, Sundays, holidays, and unexpected overtime.” (Def.
56.1 ¶ 35.)
BOP hired Plaintiff as a correctional officer at MDC Brooklyn, and he started work there
on or about March 25, 2013. (Def. 56.1 ¶¶ 36, 40.) As a new hire, he was a probationary
correctional officer, meaning that he worked on a training roster with a rotating schedule. (Def.
56.1 ¶¶ 41, 44, 92–93) Probation “generally lasts about a year, but can be reduced to six

3

months.” (Def. 56.1 ¶ 46.) In contrast, non-probationary employees bid on their work schedules
based on seniority. (Def. 56.1 ¶ 43, 91–92.) Senior officers “[g]enerally” bid to have Friday
evenings and Saturdays off. 4 (Def. 56.1 ¶ 94.) Probationary officers “generally did not have
Saturdays off.” (Def. 56.1 ¶ 96.)
C.

Plaintiff’s Scheduling Conflicts

In March 2013, Plaintiff was scheduled to complete a two-week training period. (Def.
56.1 ¶¶ 36, 47.) Three to four days of the training fell on Passover. (Def. 56.1 ¶¶ 50–51.)
Plaintiff informed Human Resources that he could not attend some of the training dates because
they coincided with Passover. (Def. 56.1 ¶ 55.) The BOP did not require Plaintiff to attend
training on days that coincided with Passover, allowing him to make up the training on different
days. (Def. 56.1 ¶ 53.)
Plaintiff received his first work schedule at the end of the training period; that schedule
contained his work hours for the following two weeks. (Def. 56.1 ¶¶ 55–56.) Plaintiff told
someone at Human Resources 5 that he had a conflict with his assigned shift on Saturday, April
13, 2013, because of his Sabbath observance. (Def. 56.1 ¶ 58–59; Def’s Ex. B at 29.) Plaintiff
also spoke with Captain Hess about his conflict, and Captain Hess told him “that’s not going to
be a problem.” (Def’s Ex. B at 29–30.) 6 Upon being instructed to do so by someone at Human
4

It is important to note that the period between sundown on Friday and an hour after
sundown on Saturday covers four potential shift assignments, Friday “night watch,” and
Saturday “morning watch,” “day watch” and “night watch.” (Def’s Ex. B at 27–29; Def’s Ex. K
at 22.) Plaintiff was able to work two out of the three Friday shifts (morning and day), and all
three shifts on Sundays. (Def’s Ex. B at 27–28.) However, he was not able to work any of the
three Saturday shifts. (Id.) Correctional officers were assigned consecutive days off, but if they
swapped a shift, their days off would not necessarily be consecutive. (Def’s Ex. K at 23–24.)
5

Plaintiff does not remember to whom he spoke at Human Resources. (Def’s Ex. B at

6

Hess denies having said this. (Def. Ex. K, at 37–38.)

29.)

4

Resources, Plaintiff submitted a written request on April 5, 2013 to the Associate Warden and to
Captain Hess asking “permission to have any/all work scheduling to be generated outside of the
Sabbath time frame.” (Def. 56.1 ¶¶ 60–61.) In the meantime, Marin-Rodriguez told Plaintiff
that he could try to alleviate his scheduling conflict by swapping shifts with other officers or
putting in a request for leave without pay. (Def. 56.1 ¶¶ 62–63.) Strada was the only person
with the authority to grant requests for leave without pay, and the ability to obtain such leave was
subject to staff availability. (Def. 56.1 ¶¶ 72, 109.)
On April 17, 2013, Plaintiff submitted a letter to Strada, stating that he had not received a
response to his April 5, 2013 request to be permanently excused from all Sabbath shifts, and
requesting retroactive leave without pay for April 13, 2013, and leave without pay for Friday,
April 19, 2013 and Saturday, April 20, 2013. (Def. 56.1 ¶¶ 70–71.) Strada granted Plaintiff’s
requests for leave without pay for the three specified shifts. (Def. 56.1 ¶¶ 72–73; Def’s Ex. B, at
50.)
D.

Defendant’s Response to Plaintiff’s Request for Permanent Accommodation

Strada and Marin-Rodriguez discussed Plaintiff’s request to be permanently excused
from Friday evening and Saturday shifts; that discussion included consideration of the proper
response to the request pursuant to the Master Agreement between the correctional officers’
union (“the Union”) and the BOP. (Def. 56.1 ¶ 75; Pl. 56.1 Counterstatement ¶¶ 132, 135.) The
Master Agreement was a collective bargaining agreement (“CBA”) that covered nonprobationary employees, but did not govern probationary employees, such as Plaintiff. (Def. Ex.
L, at 17.) Although Strada appears to have told Marin-Rodriguez that he would follow agency
protocol, (Def’s Ex. L, at 54–55,) Strada himself was unaware of any company policy or
protocol concerning religious accommodations, as this was the first or second religious

5

accommodation request he had received. (Pl. 56.1 Counterstatement ¶ 134; Def’s Ex. H, at 20–
21.) Marin-Rodriguez had encountered only one previous request from a correctional officer for
a religious accommodation during her seven years in the Human Resources Department. (Def’s
Ex. L, at 6–7, 49.) There is no evidence that Marin-Rodriguez and Strada discussed the financial
impact, scheduling impact, or impact on employee morale that would have resulted from
granting Plaintiff’s request. (Pl. 56.1 Counterstatement ¶ 142; Def’s Ex. L, at 59–60.) 7 Both
Marin-Rodriguez and Strada acknowledged that they were not involved in the roster
assignments, and that Hess and the Lieutenants had that role. (Def’s Ex. H, at 45; Def’s Ex. L, at
23–24.) Hess testified that he had no recollection of Marin-Rodriguez or anyone else from
Human Resources asking him for any information about the effect of accommodating Plaintiff’s
request on staffing, or for any rosters to review. (Def’s Ex. K, at 39–40.) Hess also testified that
he never brought Plaintiff’s request to the attention of any of the Union representatives. (Def’s
Ex. K, at 36.)
Marin-Rodriguez researched the issue, and sent a draft response memorandum to the
BOP’s Employment Law Branch in Washington, D.C. for legal review. (Def. 56.1 ¶ 77; Pl. 56.1
Counterstatement ¶¶ 136, 138.)

The draft memorandum denied Plaintiff’s request to be

permanently given days off on the Sabbath. (Id.) Marin-Rodriguez sent the draft memorandum,
and may have sent Plaintiff’s request letter, to the Employment Law Branch, but she did not send
any additional documentation, and the Employment Law Branch never requested any additional
information or documents. (Def’s Exhibit L, at 44–47.) Marin-Rodriguez stated that her draft
7

Defendant purports to dispute this fact, but only by saying that Strada and MarinRodriguez “had several discussions about plaintiff’s specific request to be excused from all
Friday evenings and Saturday morning shifts” without citing any evidence in the record that they
discussed the impact or burden of accommodating Plaintiff. (Dkt. 24-24 (Def’s Consolidated
56.1 Statement) ¶ 142.)
6

was based on “training received, . . . on the law, [and] . . . on the DOJ Reasonable
Accommodation Manual,” but that she did not have access to the Accommodation Manual that
day, “which is why [the draft] went for Legal Review as well.” (Id. at 60–61.) Marin-Rodriguez
had received yearly training about how to handle religious accommodation requests by
employees, although the training was not specific to correctional officers. (Id. at 62.) At the
time of her deposition in this case, Marin-Rodriguez stated that she “believe[d]” there was a
section in the DOJ Reasonable Accommodation Manual about religious accommodation but did
not “know it off the top of [her] head.” (Id. at 61.)
After the Employment Law Branch reviewed the response memorandum, MarinRodriguez made “minor” changes, consisting of an additional citation, and gave it to Strada, who
reviewed the memorandum, signed it, and gave it to Plaintiff on April 22, 2013. (Def. 56.1 ¶¶
78–79; Pl. 56.1 Counterstatement ¶ 141.) In the memorandum, Strada denied Plaintiff’s request
to be permanently excused from Friday night and Saturday shifts, “based on the effects that
granting such a request would have on MDC Brooklyn, including (a) the operational and
financial effects; (b) the potential infringement on the seniority system outlined in the Master
Agreement; and (c) the effect on the morale of other employees.” (Def. 56.1 ¶¶ 80–81.) 8
At Strada’s deposition in this case, he stated that a schedule change to accommodate
Plaintiff in the way he requested would have ”impact[ed] the whole operation of the institution.”
(Def’s Ex. H, at 41–42; Def. 56.1 ¶ 83.) More specifically, according to Strada and Hess,
granting the requested schedule change would have: (1) required paying other staff overtime to
8

Plaintiff responds to this, as well as many of Defendant’s other facts that are supported
solely or mostly by Strada’s testimony, by stating that, “[t]here is no documentary evidence
anywhere in the record documenting these effects other than Warden Strada’s own self-serving
and conclusory statements.” (Pl. 56.1 Counterstatement ¶ 81.) The Court discusses this lack of
supporting evidence in Parts II(B) and (C), infra.
7

cover Plaintiff’s shifts, whereas Strada had always sought to minimize overtime because of MDC
Brooklyn’s “limited” and “strict” budget (Def. 56.1 ¶¶ 85, 88–89); 9 (2) violated the seniority
system by allowing Plaintiff to work a schedule that other correctional officers gained only
through seniority and the ability to bid for their desired schedules (Def. 56.1 ¶ 97; Def’s Ex. K, at
21–22, 23); (3) affected morale among the staff by allowing Plaintiff to work a schedule
preferred by more senior officers (Def. 56.1 ¶¶ 98, 100) 10; (4) required pulling other officers and
staff members from previously assigned posts, thus resulting in an increase in those officers and
staff members’ workloads, and an administrative burden on the institution (Def. 56.1 ¶ 99); and
(5) affected the security of the institution (Def’s Ex. J, at ¶ 15.)
E.
Plaintiff’s Efforts to Adjust His Schedule to Accommodate His Religious
Observance
During the three-month period that Plaintiff worked as a probationary correctional
officer, he was assigned to a shift that fell during the Sabbath every week, starting on April 13,
2013. (Def. 56.1 ¶ 66.) Wolfe, the supervisory officer in charge of leave requests, trained
9

Strada stated that he instead used overtime pay for “institutional emergenc[ies]” at the
prison, such as a riot or an emergency medical trip. (Def’s Ex. H, at 35; Def. 56.1 ¶ 90.) He also
testified that inmates at MDC Brooklyn depended on staff, including correctional officers, for
certain services. (Def. 56.1 ¶¶ 82, 84.) Defendant’s budgetary constraints were corroborated by
Associate Warden Eric Bradley and Deputy Captain Richard Wolfe. (Def’s Ex. P (Bradley
Deposition), at 6–7) (“We have budgetary concerns, obviously . . . it’s not like I can pay
overtime for every individual to be off.”); (Def’s Ex. O (Wolfe Deposition), at 9.) However,
their depositions did not include a discussion of why accommodating Plaintiff would have
required paying other employees overtime.
10

In response to this assertion, Plaintiff points out that there “is no testimony from even a
single employee indicating an unwillingness to swap Sabbath hours with the plaintiff.” (Pl. 56.1
Counterstatement ¶ 98.) He similarly points to “no documentary evidence . . . [regarding] the
alleged change in morale” or showing that “defendant was unable to persuade even one coemployee to swap Sabbath hours with [Plaintiff].” (Id. at ¶ 100.) Defendant, however, points to
Plaintiff’s own testimony to the effect that some Lieutenants and officers made him feel like
“Oh, you’re the guy that’s having a problem” and “You’re the one that wants to be a senior on
the fast track and take the weekends off.” (Def’s Ex. D., page 29.)
8

Plaintiff on how to use the facility’s computerized mutual exchange board to post requests for
shift swaps with other officers. (Def. 56.1 ¶¶ 105, 111.) Plaintiff successfully engaged in
several mutual swaps for Friday shifts that fell during the Sabbath, but he was unable to find an
officer willing to work his assigned Saturday shifts. (Def. 56.1 ¶¶ 67–68.)
When Plaintiff was unable to find an officer willing to do a swift swap with him, he
submitted a request for leave without pay for his first Saturday shift, on April 13, 2013. (Def.
56.1 ¶¶ 64–66, 69.)

Strada granted Plaintiff’s requests for leave without pay when there was

sufficient staff to relieve him, which amounted to approximately six or seven times during the
three-month period, but denied Plaintiff’s requests when there was insufficient staff or
insufficient funds to cover overtime, which occurred on approximately nine occasions. (Def.
56.1 ¶¶ 116–20, 123.) 11
On those occasions when Plaintiff’s requests for leave without pay were denied and he
could not find someone with whom to swap shifts, he did not report to work. (Def. 56.1 ¶¶ 119,
123.) On those occasions, he was marked absent without leave (“AWOL”). (Def. 56.1 ¶ 120.)
Plaintiff was not paid for days that he received leave without pay or for days that he was marked
AWOL. (Def. 56.1 ¶ 121.) Generally, when a BOP employee has repeated charges of AWOL,
the agency conducts an investigation, during which the employee has the opportunity to give an
oral or written explanation of the charges, and then the agency determines if any disciplinary
action is warranted. (Def’s Ex. I, at ¶ 8.) Disciplinary action ranges from a letter of reprimand
to suspension.

(Id.)

Plaintiff was neither investigated nor sanctioned for his AWOL

designations. (Def. 56.1 ¶ 124.)
11

Plaintiff argues that “[b]ased on the scant record, it’s just as likely that defendant’s
granting of some of plaintiff’s requests for leave without pay was simpl[y] arbitrary.” (Pl. 56.1
Counterstatement ¶¶ 116, 118.)
9

On some occasions when Plaintiff did not report to work and was marked AWOL, Strada
paid overtime to other MDC staff members to cover Plaintiff’s assigned post. (Def. 56.1 ¶
128.) 12 MDC Brooklyn paid 56 hours of overtime to cover Plaintiff’s shifts, which Strada had to
deduct from other parts of the MDC budget. (Def. 56.1 ¶¶ 129–30.) 13 On those occasions, staff
had to be pulled from other assignments to fill Plaintiff’s vacant post. (Def. 56.1 ¶ 131.)
On June 5, 2013, Plaintiff resigned from his position. (Def. 56.1 ¶ 4.) He testified that
he was “financially . . . burdened by not being able to work” the days that he was being
designated as AWOL, and that the “stress factors” of trying to get accommodations so that he
could observe the Sabbath essentially “forced [him] into resigning.” (Def’s Ex. B, at 65–67.) He
stated that he was not “making the income [he] needed to,” “wasn’t able to pay [his] bills on
time” and had been required to start withdrawing money from his savings and from his wife’s
savings. (Id. at 67.) Plaintiff also was unable to supplement his income with other work,
because his work shift was on rotation rather than a set schedule. (Id.) Strada confirmed that, to
his knowledge, Plaintiff resigned “because of financial issues . . . because he couldn’t –
obviously, he couldn’t work on Fridays and Saturdays, he was taking the leave without pay and
not getting paid[, and] was incurring financial hardship.” (Def’s Ex. H, at 50.)
II.

PROCEDURAL HISTORY
Plaintiff filed this suit on April 11, 2014, alleging that Defendant had discriminated

against him on the basis of his religion in violation of Title VII by failing to accommodate his
reasonable request for a religious accommodation. (Dkt. 1.) Defendant’s Motion for Summary
Judgment was fully briefed on April 22, 2016. (Dkt. 25.)
12

Defendant did not introduce any documentary evidence of overtime payments.

13

Defendant submitted no documentary evidence of its budget.
10

DISCUSSION
I.

STANDARD OF REVIEW
A defendant seeking summary judgment must establish that “there is no genuine dispute

as to any material fact,” and that they are thus “entitled to judgment as a matter of law.” FRCP
56(a). “Material” facts are facts that “might affect the outcome of the suit under the governing
law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Genuine” disputes exist “if
the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
“The moving party bears the burden of establishing the absence of any genuine issue of
material fact.” Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir. 2010).
Once a defendant has met this initial burden, the plaintiff must “designate specific facts showing
that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986)
(emphasis added; quotations omitted).
The Second Circuit has “explicitly cautioned district courts to use extra care when
deciding whether to grant summary judgment [in employment discrimination cases] because the
ultimate issue to be resolved in such cases is the employer’s intent, an issue not particularly
suited to summary adjudication.” Thompson v. Kaufman’s Bakery, Inc., 03-CV-340S, 2005 WL
643433, at *3 (W.D.N.Y. March 16, 2005); see also Gallo v. Prudential Residential Servs., Ltd.
P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994) (stating that “[a] trial court must be cautious about
granting summary judgment to an employer when, as [in a discrimination case], its intent is at
issue”). Nevertheless, the “summary judgment rule would be rendered sterile . . . if the mere
incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid
motion.”

Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985); see also Marmulszteyn v.

Napolitano, 08-CV-4094, 2012 WL 3645776, at *5 (E.D.N.Y. Aug. 22, 2012) (“Although the

11

Second Circuit has stated that district courts should be particularly cautious about granting
summary judgment to an employer in a discrimination case when the employer’s intent is in
question, summary judgment in such a case may still be warranted if the plaintiff relies on
conclusory allegations of discrimination and the employer provides a legitimate rationale for its
conduct.” (internal quotations and alterations omitted) (quoting Figueroa v. N.Y. Health and
Hosps. Corp., 500 F. Supp. 2d 224, 227–28 (S.D.N.Y. 2007))).
II.

RELIGIOUS DISCRIMINATION BASED ON FAILURE TO
ACCOMMODATE
Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating

against an employee because of his or her religion. Cosme v. Henderson, 287 F. 3d 152, 157 (2d
Cir. 2002) (citing 42 U.S.C. § 2000e–2(a)(1) (1994)). Pursuant to Section 701(j) of the Act,
“when an employee has a genuine religious practice that conflicts with a requirement of
employment, his or her employer, once notified, must offer the aggrieved employee a reasonable
accommodation, unless doing so would cause the employer to suffer an undue hardship.”
Cosme, 287 F. 3d at 158. To establish a religious discrimination claim based on a failure to
accommodate, a plaintiff has the initial burden of proving a prima facie case of discrimination.
St. Juste v. Metro Plus Health Plan, 8 F.Supp.3d 287, 315 (E.D.N.Y. 2014); see also Bowles v.
N.Y.C. Transit Auth., 285 Fed. App’x 812, 813 (2d Cir. 2008) (summary order) (same). “If the
plaintiff has established his prima facie case, the employer then has the burden to show that it
made good faith efforts to provide the employee with a reasonable accommodation or that
providing such an accommodation would cause undue hardship to the employer’s business.”
Elmenayer v. ABF Freight Sys., 98-CV-4061, 2001 WL 1152815, at *5 (E.D.N.Y. Sept. 20,
2001); see Baker v. The Home Depot, 445 F.3d 541, 548 (2d Cir. 2006) (explaining that if a
plaintiff establishes a prima facie case, “the employer ‘must offer [him] a reasonable
12

accommodation, unless doing so would cause the employer to suffer an undue hardship’”)
quoting Cosme, 287 F.3d at 158)); see also E.E.O.C. v. Firestone Fibers & Textiles Co., 515
F.3d 307, 312 (4th Cir. 2008) (“If the employee establishes a prima facie case, the burden then
shifts to the employer to show that it could not [reasonably] accommodate the plaintiff’s
religious needs without undue hardship.”)
A.

Prima Facie Case

To establish a prima facie case of religious discrimination under Title VII, a plaintiff
must prove that (1) he has a bona fide religious belief that conflicts with an employment
requirement; (2) he informed the employer of this belief; and (3) he was disciplined for failing to
comply with the conflicting employment requirement. Baker, 445 F.3d at 546; see also Bowles,
285 Fed. App’x at 813 (citing Philbrook v. Ansonia Bd. of Educ., 757 F.2d 476, 481 (2d Cir.
1985), aff’d 479 U.S. 60 (1986)) (same)
As to the first prong of Plaintiff’s prima facie case, Defendant has not asserted or argued
that Plaintiff’s Orthodox Jewish faith is not sincere, and it is undisputed that there was a conflict
between Plaintiff’s commitment to observing the Sabbath and his employment schedule. The
Court therefore finds that Plaintiff has established the first prong of his prima facie case. See
Reznick v. Aramark Corp., 97-CV-18977, 1999 WL 287724, at *11 (E.D.N.Y. May 5, 1999)
(“As an Orthodox Jewish person, plaintiff undoubtedly holds a bona fide religious belief that
requires her to refrain from working on the Jewish Sabbath or on Jewish holidays.”).
It also is undisputed that Plaintiff has established the second prong of his prima facie
case, as Defendant acknowledges that Plaintiff informed Strada and other supervisors on
multiple occasions, including in his April 5, 2013 and April 17, 2013 letters, that he was Jewish
and therefore was requesting the Sabbath off. (E.g., Def. 56.1 ¶ 52, 60, 70–71; Def’s Ex. Q.)

13

Defendant argues, however, that Plaintiff has not established the third prong of his prima
facie case because (1) Plaintiff suffered no adverse employment action in connection with his
AWOL Designations; (2) Plaintiff suffered no adverse employment action in connection with not
receiving pay on days on which he did not report to work; and (3) Plaintiff was not
constructively discharged.
“The Second Circuit has never defined ‘discipline’ within the context of the threepronged religious discrimination test.” Lewis v. N.Y. City Transit Auth., 12 F. Supp. 3d 418, 443
(E.D.N.Y. 2014) (quoting Siddiqi v. N.Y. City Health & Hosp. Corp., 572 F. Supp. 2d 353, 370
(S.D.N.Y. 2008) (citations omitted)); Guy v. MTA N.Y. City Transit, 10-CV-1998, 2012 WL
4472112, at *7 (E.D.N.Y. Aug. 6, 2012), report and recommendation adopted, No. 10-CV-1998,
2012 WL 4472098 (E.D.N.Y. Sept. 26, 2012) (same). However, the discipline prong of the
failure-to-accommodate prima facie case “‘has been equated with the requirement of an adverse
employment action’ under the McDonnell Douglas framework.” Lewis, 12 F. Supp. 3d at 443
(quoting Price v. Cushman & Wakefield, Inc., 808 F. Supp. 2d 670, 695 (S.D.N.Y. 2011)); see,
e.g., Marmulszteyn, 523 Fed. App’x 13, 14 (2d Cir. 2013) (summary order) (holding that plaintiff
“failed to establish a prima facie case for his failure-to-accommodate claim because no evidence
suggests that he suffered an adverse employment action”)); Leifer v. N.Y. State Div. of Parole,
391 Fed. App’x 32, 34 (2d Cir. 2010) (summary order) (finding that plaintiff’s failure to
accommodate claim failed because there was “insufficient evidence showing that [he] suffered
an adverse employment action”); Bowles, 285 Fed. App’x at 813–14 (stating, in discussing the
third prong of a Title VII accommodation claim, that plaintiff “had failed to offer any evidence
tending to establish that he had suffered any adverse employment action” and citing to Title
VII’s definition of “adverse employment action”).

14

An adverse employment action includes “termination of employment, a demotion
evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits,
significantly diminished material responsibilities, or other indices . . . unique to a particular
situation.” Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000); Edwards v.
Elmhurst Hosp. Ctr., 11-CV-4693, 2013 WL 839535, at *4 (E.D.N.Y. Feb. 15, 2013) (explaining
that the third prong “requires some adverse employment action—typically, discipline, demotion,
transfer or termination—for refusing to comply with the conflicting employment requirement”)
(internal alteration omitted). “To be ‘materially adverse,’ a change in working conditions must
be ‘more disruptive than a mere inconvenience or an alteration of job responsibilities.’”
Galabya, 202 F.3d at 640 (internal quotation marks and citation omitted).
Although the Second Circuit has not settled the matter, courts have found that requiring
an employee to take approved unpaid leave for religious observance can constitute an adverse
action for purposes of a failure to accommodate claim. See St. Juste, 8 F. Supp. 3d at 318
(assuming without deciding that “Defendants’ failure to pay for time off [was] ‘discipline’ for
purposes of Plaintiff’s prima face case,” “[i]n light of the fact that this prong of the analysis in a
failure to accommodate claim is viewed in the same manner as the ‘adverse employment action’
requirement in the discrimination context, and since in the discrimination context courts find that
being required to take unpaid leave can be an adverse employment action”); Guy, 2012 WL
4472112, at *7 (“assum[ing] without deciding that being forced to take unpaid leave to observe
the Sabbath, when that results in a reduced schedule and a loss in pay, could constitute an
adverse action sufficient to establish a prima facie case of religious discrimination”); Thompson,
2005 WL 643433, at *8 (implying that lost wages qualified as an adverse action by explaining
that plaintiff “did not lose any wages or suffer any other type of adverse employment action”)

15

(emphasis added); Morrissette-Brown v. Mobile Infirmary Med. Ctr., 04-CV-0069, 2006 WL
1999133, at *4 (S.D. Ala. July 14, 2006) (“The court finds that the imposition, against plaintiff’s
will, of a 30-day unpaid leave was a disciplinary action, rather than an accommodation as
claimed by defendant”), aff’d, 506 F.3d 1317 (11th Cir. 2007).
Furthermore, courts have found unpaid leave to be an adverse employment action in the
context of other Title VII and ADA claims. See Hughes v. City of Rochester, 12-CV-6112, 2016
WL 4742321, at *6 (W.D.N.Y. Sept. 12, 2016) (stating, in a Title VII disparate impact case, that
“at a minimum, the adverse employment actions . . . include: [the employer’s] decision to place
plaintiff on unpaid leave”); Horsham v. Fresh Direct, 136 F. Supp. 3d 253, 264 (E.D.N.Y. 2015)
(stating in an ADA case that “[p]lacing an employee on unpaid leave can constitute an adverse
employment action”) (citing St. Juste, 8 F.Supp.3d at 318)); Monterroso v. Sullivan & Cromwell,
LLP, 591 F. Supp. 2d 567, 583 (S.D.N.Y. 2008) (stating that “[b]eing placed on unpaid leave and
termination of employment constitute adverse employment actions” in the context of an ADA
retaliation claim) (citing Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999)); see also ChinMcKenzie v. Continuum Health Partners, 876 F. Supp. 2d 270, 286 (S.D.N.Y. 2012) (assuming
arguendo that an unpaid medical leave of absence was a material adverse employment action for
purposes of a sexual harassment retaliation claim).
Defendant presents a number of cases in support of the proposition that unpaid leave does
not constitute an adverse employment action. (Dkt. 24-1 (Def. Br.), at 8–9.) However, none of
these cases are on point. They all hold that at the second stage of the Title VII accommodation
analysis, after the burden has shifted to the defendant, unpaid leave can be a reasonable
accommodation. None of these cases holds that unpaid leave does not constitute an adverse
employment action at the prima facie stage. See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60,

16

70 (1986) (remanding for a determination of whether requiring an employee to use unpaid,
unauthorized leave to observe a handful of holy days a year was a reasonable accommodation,
and opining that “requiring respondent to take unpaid leave for holy day observance that
exceeded the amount allowed by the collective-bargaining agreement, would generally be a
reasonable one”); Firestone Fibers & Textiles Co., 515 F.3d at 316 (holding, after defendant
conceded that plaintiffs had established a prima facie case, that the employer’s accommodation,
which included allowing employees to use 60 hours of unpaid leave to observe religious
holidays, was reasonable); United States v. City of Albuquerque, 545 F.2d 110, 114 (10th Cir.
1976) (finding that leave without pay could be a reasonable accommodation). 14
Thus, the Court finds that the situation presented here, which involved Plaintiff having to
lose a substantial amount of pay through unpaid leave, constituted an adverse employment
action. It is undisputed that Plaintiff suffered unsustainable financial hardship from his situation
at MDC Brooklyn, such that he had to resign. Furthermore, the situation here unquestionably
had an even greater adverse impact on Plaintiff because, in addition to being required to take six
or seven days of approved unpaid leave, Plaintiff was denied any accommodation for
approximately nine days of work, for which he was designated AWOL—all within his first three
months on the job. As a result, he was forced to engage in acts of insubordination, enduring the
stress of simply not showing up to scheduled shifts and knowing that he would be marked
14

Defendant also cites to O’Neill v. City of Bridgeport Police Dept., 719 F. Supp. 2d 219
(D. Conn. 2010), for the proposition that an employer’s failure to eliminate the conflict, while it
may indicate a failure to accommodate, does not itself constitute an adverse employment action.
Id. at 226. This may be true, but it does not lead to the conclusion that a substantial loss in pay,
caused by repeated instances of unpaid leave, does not constitute an adverse employment action.
To the contrary, O’Neill itself observed that “if, hypothetically, [the defendant] had responded to
[the plaintiff’s] request for an accommodation . . . by demoting him to a position that had
Saturdays off but paid significantly less, such a demotion would undoubtedly have been an
adverse employment action. . . .” Id. at 227 (emphasis added).
17

AWOL and could be disciplined. While the risk of discipline might not, in itself, be sufficient
to constitute an adverse action, 15 the Court finds that a substantial and unsustainable financial
burden—such as having to forfeit fifteen or sixteen days of paid work within a three-month
period, coupled with the real risk of discipline and termination, amounts to an adverse action
“more disruptive than a mere . . . alteration of job responsibilities”, Miller v. Praxair, Inc., 408
Fed. App’x 408, 410 (2d Cir. 2010) (summary order), and is on par with “a demotion evidenced
by a decrease in wage or salary” or “a material loss of benefits.” Galabya, 202 F.3d at 640. 16

15

Most courts in this Circuit have declined to find that a plaintiff has established the third
prong of his prima facie case solely because he was written up for missing work without further
disciplinary action. See Weber v. City of N.Y., 973 F. Supp. 2d 227, 261–62 (E.D.N.Y. 2013)
(finding no prima facie case where “[t]he only alleged disciplinary action was a letter to
Plaintiff’s file,” and the plaintiff had “not shown that the alleged note in his file resulted in any
adverse action”); Guy, 2012 WL 4472112 at *7 (finding no disciplinary action where the
plaintiff’s supervisor wrote him up for being absent without leave and warned him that “[f]urther
discipline[e] may follow” because “the record does not reflect that any disciplinary action was
taken against plaintiff”); Durant v. Nynex, 101 F. Supp. 2d 227, 233 (S.D.N.Y. 2000) (finding
that plaintiff, a Seventh-Day Adventist, had not shown that she was disciplined for failure to
work on the Sabbath, even though Defendant “impose[d] ‘disciplinary steps’ against her . . . for
her lateness associated with [her] observance of the Sabbath,” and observing that “[n]egative
evaluations alone, without any accompanying adverse result . . . are not cognizable” (quoting
Valentine v. Standard & Poor’s, 50 F. Supp. 2d 262, 283 (S.D.N.Y. 1999))); see also Farina v.
Branford Bd. of Educ., 458 F. App’x 13, 17 (2d Cir. 2011) (summary order) (stating that “while
negative employment evaluation letters or reprimands may be considered adverse employment
actions, here there was no proof that this evaluation had any effect on the terms and conditions of
[plaintiff’s] employment”) (internal alterations and quotations omitted)); Browne v. City Univ. of
N.Y., 419 F. Supp. 2d 315, 332 (E.D.N.Y. 2005) (“A negative evaluation alone, absent some
accompanying adverse result such as demotion, diminution of wages, or other tangible loss, does
not constitute an adverse employment action.”).
16

In light of the Court’s finding that Plaintiff has met his burden of showing an adverse
employment action, it declines to consider whether Plaintiff has established a constructive
discharge claim.

18

B.

Reasonable Accommodation

Once an employee establishes a prima facie case, the burden shifts to the employer, who
“must offer [the employee] a reasonable accommodation, unless doing so would cause the
employer to suffer an undue hardship.” Baker, 445 F.3d at 546 (quoting Cosme, 287 F.3d at
158); Elmenayer, 2001 WL 1152815, at *5 (explaining that “once a prima facie case is shown,
the burden shifts to the employer to demonstrate that a reasonable accommodation was offered
or, if it was not, that any accommodation would cause undue hardship to the employer”); see
also Thompson, 2005 WL 643433, at *7 (stating that “[a]n employer is compelled to
accommodate all aspects of an employee’s religious observance and practice, as well as beliefs,
unless the employer demonstrates that it is unable to offer a reasonable accommodation without
undue hardship on the conduct of its business”); Reznick, 1999 WL 287724, at *10 (“Under Title
VII, an employer may not discriminate against any employee on the basis of the employee’s
religious beliefs unless the employer can show that a ‘reasonable accommodation’ of the
employee’s religious needs would cause ‘undue hardship’ for the employer’s business.”) (citing
42 U.S.C. § 2000e(j)).
A reasonable accommodation “is one that ‘eliminates the conflict between employment
requirements and religious practices.’” Elmenayer, 2001 WL 1152815, at *5 (quoting Ansonia,
479 U.S. at 70); see also Baker, 445 F.3d at 548 (finding offered accommodation not reasonable
because it “[did] not eliminate the conflict between the employment requirement and the
religious practice.”); Cosme, 287 F. 3d at 159 (explaining that for an accommodation to be
reasonable, it “had to have eliminated the conflict between the employment requirement,
working on Saturdays, and the employee’s religious practice of not working on the Saturday
Sabbath,” but concluding that employer’s offered accommodations eliminated the conflict). Cf.

19

Marmulszteyn, 2013 WL 3021144, at *14–15 (employer “eliminated [plaintiff’s] religious
conflict because, when he was assigned a Saturday morning shift, he was allowed to switch to a
Saturday shift beginning at 10:00 p.m., after his Sabbath ends.”); City of Albuquerque, 545 F.2d
at 114 (stating, in finding the accommodation reasonable, that “the employer did not stubbornly
insist that [the plaintiff] work on his Sabbath, come what may”).
The process of finding a reasonable accommodation is “intended to be an interactive
process in which both the employer and employee participate.” Elmenayer, 2001 WL 1152815,
at *5. “While the employer bears the burden of making a reasonable accommodation for the
religious beliefs of an employee, the employee, too, must make some effort to cooperate with an
employer’s attempt at accommodation.” Id. (internal quotation omitted). “Where an employer
has made a good faith effort to accommodate an employee’s religious practices, courts in this
circuit have not looked further to make a determination as to what precisely constitutes
reasonableness.” Id., at *6; see also Cosme, 287 F.3d at 158 (stating that an employer “need not
offer the accommodation the employee prefers,” but is only required to offer “any reasonable
accommodation.”).
Although Defendant is correct that courts have held that voluntary shift swaps 17 and
allowing an employee to use unpaid leave 18 can be reasonable accommodations, Defendant’s

17

See, e.g., Elmenayer, 2001 WL 1152815, at *6 (upholding as reasonable employer’s
accommodation of telling plaintiff to bid for a shift that did not conflict with his Friday prayer
obligations rather than implement plaintiff’s preferred accommodation of altering his lunch
period, noting that the fact that plaintiff “would have to work evenings, or nights, in order to
remove the conflict does not render the proposal unreasonable” and that “[b]y refusing to
exercise his option to bid on those shifts, it was [plaintiff], not [his employer], who became
responsible for the continuing conflict”).
18

See St. Juste, 8 F. Supp. at 318 (finding that Muslim plaintiff had received a reasonable
accommodation when his employer told him he could take either unpaid leave or vacation days
to attend congregational prayer on Fridays, and stating that allowing an employee to use unpaid
leave to attend Friday prayers “is a reasonable accommodation”); Ansonia, 479 U.S. at 70–71
20

proposed solution of shift swaps and taking unpaid leave—which left Plaintiff with nine days in
three months in which he had to either show up to work or be marked AWOL, despite his efforts
to swap shifts—did not “eliminate the conflict between the employment requirement and the
religious practice.” Baker, 445 F.3d at 548. The critical difference in this case is that although
Defendant gave Plaintiff the option of shift swaps and authorized unpaid leave, as a practical
matter, Plaintiff would never have been able to find enough officers who would voluntarily trade
with Plaintiff for his Friday night and Saturday shifts 19, and as a brand new, still probationary,
officer, Plaintiff did not have enough seniority to bid on a schedule that would have
accommodated his religious observance. 20 It was therefore inevitable that Plaintiff would have
to not only take unpaid leave, but would have to be absent and designated AWOL for his
assigned Saturday shifts. Indeed, Defendant knew all of this when it refused Plaintiff’s request
for a permanent accommodation and only offered him the option of swapping shifts and taking
(noting that “[t]he 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,” and
observing further that “[g]enerally speaking, [t]he direct effect of [unpaid leave] is merely a loss
of income for the period the employee is not at work [and] has no direct effect upon either
employment opportunities or job status”) (quotation omitted)).
19

As previously noted, there are four shifts of officers between Friday sundown and
Saturday an hour after sundown.
20

The Court understands that the district court in Elmenayer—cited by Defendant for the
proposition that an accommodation can be reasonable even when it does not eliminate the
conflict—rejected the plaintiff’s argument that the employer’s proposed accommodation of
having plaintiff bid on evenings or nights was unreasonable because he was not guaranteed that
he would always be able to bid successfully on those shifts. 2001 WL 1152815, at *7.
Elmenayer is distinguishable, though, because the record in that case showed that at least for the
year following his rejection of the accommodation, plaintiff “had sufficient seniority to bid for
and obtain shifts that would not conflict with his religious practice.” Id. Indeed, the court in
Elmenayer observed, in dicta, that “[i]f [plaintiff] had accepted the accommodation, only to find
a year later that his bids for alternative shifts were unsuccessful due to his seniority, [his
employer’s] obligation to reasonably accommodate plaintiff’s religious practice may well have
required it to do more for him.” Id.
21

leave without pay. (See Def. 56.1 ¶ 94 (senior officers “generally” bid to have Friday evenings
and Saturdays off); Def. 56.1 ¶ 96 (probationary officers “generally did not have Saturdays
off”).) In effect, Defendant’s proposed solution was almost no accommodation at all.
In assessing the reasonableness of this purported accommodation, the Court is guided by
the Second Circuit’s decision in Baker. There, the plaintiff, an observant Christian, was unable
to work on Sundays because of his religious conviction that he was prohibited from working on
the Christian Sabbath. Id. at 543–45. The district court found that the employer’s offer to
schedule the plaintiff “to work in the afternoon or evenings on Sundays, thus allowing him an
opportunity to attend his religious services, [was] a reasonable accommodation.” Id. at 547. The
Second Circuit reversed, explaining:
The shift trade offer accommodated only one of [the plaintiff’s] concerns, that of
missing church service on Sunday, but failed to address [the plaintiff’s] principal
objection to working on Sunday. An employer does not fulfill its obligation to
reasonably accommodate a religious belief when it is confronted with two
religious objections and offers an accommodation which completely ignores one. .
. It follows that the shift change offered to [the plaintiff] was no accommodation
at all because, although it would allow him to attend morning church services, it
would not permit him to observe his religious requirement to abstain from work
totally on Sundays. Simply put, the offered accommodation cannot be considered
reasonable because it does not eliminate the conflict between the employment
requirement and the religious practice.
Id. at 547–48 (internal quotations and alterations omitted).
So too here, the “accommodation” offered by Defendant, which did not, in reality, permit
Plaintiff to observe his religious requirement to abstain from work between Friday sundown to
Saturday sundown “cannot be considered reasonable because it does not eliminate the conflict
between the employment requirement and the religious practice.” Id. See also Ansonia, 479
U.S. at 70–71 (explaining that unpaid leave generally is a reasonable accommodation because it
“eliminates the conflict . . . by allowing the individual to observe fully religious holy days”)

22

(emphasis added); Crider v. Univ. of Tennessee, Knoxville, 492 Fed. App’x 609, 612–13 (table)
(6th Cir. 2012) (rejecting as unreasonable defendant’s proposed accommodation that on
plaintiff’s Sabbath, she would only need to monitor the emergency cell phone in an emergency
situation or when the other two employees were out of town, explaining that “[a]lthough an
employee is obligated to cooperate with an employer’s attempt at accommodation, cooperation is
not synonymous with compromise, where such compromise would be in violation of the
employees’ religious needs,” and holding that “[o]ffering [the plaintiff] fewer Saturday shifts is
not a reasonable accommodation to religious beliefs which prohibit working on Saturdays”). 21
The Court recognizes that Trans World Airlines, Inc. v. Hardison [“Hardison”], 432 U.S.
63 (1977) and its progeny have greatly eased an employer’s burden to accommodate an
employee’s religious practice when an employee is subject to a seniority system under a CBA.
Some courts have broadly applied the Supreme Court’s decision in Hardison to, in effect, grant
employers carte blanche to avoid eliminating a religious conflict for employees under such a
21

Defendant cites several cases, including Elmenayer, discussed supra at n. 20, to
support the proposition that an accommodation can be reasonable even when it fails to eliminate
the conflict. As with Elmenayer, however, many of these cases are distinguishable from the
instant case. For example, while Defendant is correct that the court in E.E.O.C. v. Delta Airlines,
Inc., 97-CV-5646, 2002 WL 1447582 (E.D.N.Y. June 26, 2002) held that “[t]he mere possibility
that the accommodation [of voluntary shift swaps] might have failed at some point does not
retroactively render Defendant’s . . . offer of accommodation unreasonable,” id. at *6, in that
case, the plaintiff “never waited for this moment to come to pass,” instead “refus[ing] the
accommodation offered by [the defendant] because it could not guarantee that he would be able
to observe the Sabbath.” Id. By contrast, here, Plaintiff accepted Defendant’s proposed
accommodation of shift swaps and unpaid leave, and actively worked with Defendant to try to
find coverage or be granted unpaid leave for each conflict; and yet, the accommodation failed
nine times in three months. Unlike the plaintiff in Delta Airlines, Plaintiff can demonstrate far
more than the “mere possibility that the accommodation might have failed.” Id. at *6.
To the extent that other courts in this Circuit have found religious accommodations to be
reasonable where they fail to eliminate the conflict, as required by Baker, the Court declines to
follow them. See, e.g., McLaughlin v. N.Y. City Bd. of Educ., 04-Civ.-1270, 2008 WL 216308
(S.D.N.Y. Jan. 22, 2008); Siddiqi v. N.Y. City Health & Hosps. Corp., 572 F. Supp. 2d 353
(S.D.N.Y. 2008).
23

system. See, e.g., Sides v. NYS Div. of State Police, No. 03-CV-153, 2005 WL 1523557, at *5
(N.D.N.Y. June 28, 2005) (granting summary judgment to employer that denied plaintiff’s
request for accommodation without any attempts to work with him, explaining that “[d]efendant
is “not required by Title VII to carve out a special exception to its seniority system in order to
help [Plaintiff] meet his religious obligations.”).
This Court does not read Hardison so expansively, and finds that it can be fairly
distinguished from the present case. In Hardison, the employer, Trans World Airlines, Inc.
(“TWA”), in seeking to accommodate the employee, “agreed to permit the union to seek a
change of work assignments for [the plaintiff,] but the union was not willing to violate the
seniority provisions set out in the collective-bargaining contract.” 432 U.S. at 68. The Supreme
Court stated that in such a case, the duty to accommodate did not require TWA “to take steps
inconsistent with the otherwise valid [collective bargaining] agreement,” 432 U.S. at 79. The
Court explained that because “the union was unwilling to entertain a variance over the objections
of men senior to [the plaintiff]”, “for [TWA] to have arranged unilaterally for a swap would
have amounted to a breach of the collective-bargaining agreement,” id. at 78–79 (emphasis
added), a result that was not required. 22 See also id. at 83, n.14 (“We accept the District Court’s
findings that TWA had done all that it could do to accommodate Hardison's religious beliefs
without either incurring substantial costs or violating the seniority rights of other employees.”)
(emphasis added)).
22

Additionally, in Hardison, in addressing the Eighth Circuit’s finding below that “the
possibility of a variance from the seniority system was never really posed to the union,” the
Supreme Court, rather than stating that it did not matter whether the union was asked about an
accommodation, rejected the Eighth Circuit’s finding as “contrary to the District Court’s findings
and to the record.” Hardison, 432 U.S. at 78. While the Court recognizes that this does not
equate to a clear holding that the Court would have ruled otherwise without evidence that the
union was consulted, it does find that it lends support to the Court’s interpretation of the
Hardison holding.
24

The Second Circuit has stated that Hardison stands for the proposition that “employers
are not required to breach an agreed-upon seniority system to accommodate the religious needs
of employees.” Cosme, 287 F.3d at 161 (emphasis added). This is consistent with the Hardison
Court’s holding that the employer was not required to “unilaterally”, i.e., without the union’s
assistance or approval, swap the plaintiff’s schedule with someone senior to him, 432 U.S. at 78–
79, and is also consistent with this Court’s interpretation of Hardison. Neither Cosme nor
Hardison holds that an employer will be deemed to have reasonably accommodated an employee
who is affected by a CBA when the employer denies the employee an accommodation without
even contacting the union. 23 See E.E.O.C. v. Chemsico, Inc., 216 F. Supp. 2d 940, 953–54 (E.D.
Mo. 2002) (finding defendants “failed to meet their burden of demonstrating that as a matter of
law, they would have suffered more than a de minimus hardship had they further accommodated
[the plaintiff],” when the employer had not contacted a union representative to try to alter the
Collective Bargaining Agreement to accommodate her, and the employer had made no attempts
to replace plaintiff despite knowing she did not intend to work on a Saturday); Jenoe Rottenberg
v. Frank, Postmaster Gen., U.S. Postal Serv., EEOC DOC 01891132, 1990 WL 711682, at *3
(Jan. 10, 1990) (“The situation in Hardison . . . is clearly distinguishable from the one we have
here in that . . . unlike TWA, the agency did not contact the union to determine whether a
mutually agreeable accommodation could be reached.”).

23

Hardison may be distinguishable in another way as well. Marin-Rodriguez testified
that the CBA in this case, the Master Agreement, covered only non-probationary employees, and
that probationary employees—like Plaintiff—were not governed by the Agreement. (Def. Ex. L,
at 17.) Given the reasoning behind Hardison, it is far from clear that Hardison applies to a case
like this, where the employee who was denied the accommodation, is not even subject to the
CBA. See Hardison, 432 U.S. at 78 (reasoning that “the [seniority] system itself represented a
significant accommodation to the needs, both religious and secular, of all of [defendant’s]
employees”) (emphasis added).
25

Many of the cases in which courts have cited Hardison to find an unsuccessful
accommodation reasonable have involved situations where an employer tried to work out a
solution with the union before concluding that none was possible. See, e.g., Cook v. Chrysler
Corp., 981 F.2d 336, 338–39 (8th Cir. 1992) (applying Hardison to uphold an employer’s
attempts at accommodating plaintiff as reasonable when the defendant “approached the Union
and tried to find a way to accommodate [the plaintiff,] but “[t]he Union was not willing to grant
[plaintiff] a change of shift out of line with seniority.”); Elmenayer, 2001 WL 1152815, at *3
(noting that at supervisor’s request, plaintiff, Union shop steward and supervisor met to discuss
how defendant could accommodate plaintiff’s religious obligations); Kalsi v. N.Y. City Transit
Auth., 62 F. Supp. 2d 745, 758–59 (E.D.N.Y. 1998) (finding that the employer was not required
to violate the seniority system after it reached out to the vice president of the union to ask
whether plaintiff could be placed in a different role, and the vice president had refused), aff’d,
189 F.3d 461 (2d Cir. 1999); Fisher v. Material Servs. Corp., 84-C-932, 1985 WL 1651, at *1
(N.D. Ill. May 30, 1985) (noting that “[t]he union refused to waive the seniority provision”). But
see, e.g., Sides, 2005 WL 1523557 (holding that employer was not required to carve out
exception to the seniority system even though it does not appear that employer reached out to the
union). Here, Defendant has not submitted any evidence that Strada, Marin-Rodriguez, Hess, or
anyone else from MDC Brooklyn or the BOP, attempted to work out an accommodation for
Plaintiff with the Union. 24
The Court is particularly disinclined to extend the holding of Hardison to this case, given
the troubling policy implications of a broad application of that decision. As Justice Thurgood
24

While this might be explained by the fact that, as a probationary employee, Plaintiff
was not covered by the Master Agreement (Def’s Ex. L, at 17), the Court finds that the lack of
CBA coverage does not make Defendant’s proposed accommodation reasonable; rather, it
simply makes Hardison distinguishable. See supra at n. 23.
26

Marshall noted in his dissent in Hardison, “a society that truly values religious pluralism cannot
compel adherents of minority religions to make the cruel choice of surrendering their religion or
their job.” Hardison, 432 U.S. at 87 (Marshall, J., dissenting). A CBA by its nature is designed
to protect the rights of the majority, and “adherents to minority faiths who do not observe the
holy days on which most businesses are closed . . . but who need time off for their own days of
religious observance” thus require statutory protection. Id. at 85, 88–89. A primary purpose of
the 1972 Amendments to Title VII was to provide such statutory protection; therefore, the
overextension of Hardison could undermine that congressional objective. 25 The Court therefore
declines to “erode” even further “one of this Nation’s pillars of strength[,] our hospitality to
religious diversity”, id. at 97, by extending Hardison’s holding, that an employer does not need
to flout the expressly unyielding wishes of the union, to a situation where the employer does not
even contact the Union. 26
25

As Justice Marshall observed, the 1972 Amendments to Title VII, which amended the
definition of religion to explicitly require employers to accommodate an employee’s religious
practices, were introduced in response to cases such as Dewey v. Reynolds Metals Co., 429 F.2d
324 (6th Cir. 1970), aff’d by equally divided Court, 402 U.S. 689 (1971). Hardison, 432 U.S. at
88–89 (Marshall, J., dissenting). In Dewey, the Supreme Court had reasoned that excusing
religious observers from neutral work rules would ‘discriminate against . . . other employees’
and ‘constitute unequal administration of the [CBA].’” Id. at 89. The primary purpose of the
1972 Amendment, as explained by its author, Senator Jennings Randolph, was to protect
Saturday Sabbatarians, like himself, from employers who refused “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.” Id. (quoting 118 Cong.Rec. 705 (1972)). Justice Marshall
opined that the majority’s decision in Hardison “follow[ed] the Dewey decision in direct
contravention of congressional intent.” Id.
26

The Court additionally notes that the principle expressed in Cosme, that “the neutral
operation of a bona fide seniority system, even if it has ‘some discriminatory consequences,’
does not violate the proscription against religious discrimination in employment”, has no
application here. Cosme, 287 F.3d at 160 (quoting Hardison, 432 U.S. at 82). Plaintiff is not
arguing that the seniority system in the Master Agreement itself was discriminatory—as asserted
in Cosme (id.)—but rather, is merely arguing that Defendant could have offered him a reasonable
accommodation notwithstanding the provisions of the Master Agreement. See Leonce v.
Callahan, 7:03-CV-110, 2008 WL 58892, at *4 (N.D. Tex. Jan. 3, 2008) (“[T]he mere existence
27

Accordingly, the Court finds that Defendant has failed to show, as a matter of law, that
the religious accommodation it offered to Plaintiff was reasonable. 27
C.

Undue Hardship

If an employer’s proposed accommodation is not reasonable, the burden remains on the
employer to show that it is unable to offer a reasonable accommodation without undue hardship.
See Elmenayer, 2001 WL 1152815, at *5 (explaining that “once a prima facie case is shown, the
burden shifts to the employer to demonstrate that a reasonable accommodation was offered or, if
it was not, that any accommodation would cause undue hardship to the employer”); see also
Thompson, 2005 WL 643433, at *7 (stating that “[a]n employer is compelled to accommodate all
aspects of an employee’s religious observance and practice, as well as beliefs, unless the
employer demonstrates that it is unable to offer a reasonable accommodation without undue
hardship on the conduct of its business”); Ansonia, 479 U.S. at 68–69 (“[T]he extent of undue
hardship on the employer’s business is at issue only where the employer claims that it is unable
to offer any reasonable accommodation without such hardship.”).
An accommodation “causes ‘undue hardship’ whenever [it] results in “more than a de
minimis cost’ to the employer.” Ansonia, 479 U.S. at 67 (quoting Hardison, 432 U.S. at 84).
“[W]hether an employer can reasonably accommodate a person’s religious beliefs without undue
of an established seniority system that may be impacted by an employee’s religious practice
imperatives does not trump the employer’s obligation to accord the employee a reasonable
accommodation under Title VII circumstances.”). Furthermore, Hardison and Cosme were
decided after bench trials, where “the record[s] w[ere] fully developed below, not on summary
judgment.” Antoine v. First Student, Inc., 713 F.3d 824, 839 (5th Cir. 2013). “Here, we have
only [the employer’s] assertions about the constraints of the CBA.” Id.
27

The Court does not find that U.S. Airways v. Barnett, 535 U.S. 391 (2002) precludes
this result. Although Barnett discussed Hardison in broad terms, it did so in dicta, as the case
involved the ADA. In Barnett, the Supreme Court was not squarely presented with what is
required under Title VII’s religious accommodation provisions of an employer facing a request
for an accommodation in the context of a union-negotiated seniority system.
28

hardship is basically a question of fact.” Minkus v. Metro. Sanitary Dist. Of Greater Chicago,
600 F.2d 80, 81 (7th Cir. 1979) (quotation omitted).
Because Plaintiff has established a prima facie case, and because the Court holds that the
offered accommodation was not reasonable, the burden is on Defendant to demonstrate that “any
accommodation would cause undue hardship to the employer.” Elmenayer, 2001 WL 1152815,
at *5. “Because [Defendant] will have this burden at trial, to obtain summary judgment, it must
establish beyond peradventure all of the essential elements of the . . . defense.” Ford v. City of
Dallas, Tex., 3:05-CV-1676, 2007 WL 2051016, at *1 (N.D. Tex. July 12, 2007) (quotation
omitted). “This means that it must demonstrate, without genuine and material factual dispute,
and as a matter of law, that it was unable to reasonably accommodate [the plaintiff’s] religious
beliefs without incurring undue hardship.” Id. at 2 (holding that the defendant had not “carried
its burden of showing that all conceivable accommodations would have imposed a more than de
minimis cost”).
Although the Second Circuit does not appear to have directly addressed the issue, many
courts have rejected speculative undue hardship. See Sturgill v. United Parcel Serv., Inc., 512
F.3d 1024, 1033, n.4 (8th Cir. 2008) (explaining that “an employer must establish that the
hardship is ‘real rather than speculative . . . merely conceivable, or hypothetical,” and that
“[u]ndue hardship ‘cannot be proved by assumptions nor by opinions based on hypothetical
facts’” (quoting Brown v. Polk Cnty., 61 F.3d 650, 655 (8th Cir. 1995) (en banc), cert. denied,
516 U.S. 1158 (1996)); Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1492 (11th Cir. 1989)
(rejecting defendant’s argument that it would incur increased risk of tort liability if it hired a
driver who used peyote in religious ceremonies as too speculative), cert. denied, 495 U.S. 948
(1990); Burns v. S. Pac. Transp. Co., 589 F.2d 403, 406–07 (9th Cir. 1978) (rejecting

29

defendant’s argument that accommodating plaintiff’s religious practice would cause “serious
dissension among employees,” and finding that reliance on “unofficial and unscientific polls
[showing that] employee dissatisfaction with persons who were free riders or who received
differential treatment of any kind” did not undercut finding that claimed hardship was
hypothetical); Anderson v. Gen. Dynamics Convair Aerospace Div., 589 F.2d 397, 402 (9th Cir.
1978) (explaining that undue hardship cannot be proved by assumptions or hypotheticals, and
that “[e]ven proof that employees would grumble about a particular accommodation is not
enough to establish undue hardship.”); see also Draper v. U.S. Pipe & Foundry Co., 527 F.2d
515, 520 (6th Cir. 1975) (“We are somewhat skeptical of hypothetical hardships that an
employer thinks might be caused by an accommodation that never has been put into practice.
The employer is on stronger ground when he has attempted various methods of accommodation
and can point to hardships that actually resulted.”); E.E.O.C. v. Jetstream Ground Servs., Inc.,
134 F. Supp. 3d 1298, 1334–35 (D. Colo. 2015) (“Any proffered hardship . . . must be actual;
‘[a]n employer . . . cannot rely merely on speculation.’” (quoting Toledo, 892 F.2d at 1492));
E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 966 F. Supp. 2d 949, 962 (N.D. Ca. 2013)
(explaining that in the Ninth Circuit, “[h]ypothetical or merely conceivable hardships cannot
support a claim of undue hardship”).
Here, Defendant bases its claim of undue hardship on the negative impact that the
requested accommodation would have on officer morale, the seniority system, safety, and the
budget at MDC Brooklyn. In support of its claim of hardship, Defendant relies mainly on
Strada’s testimony. However, while Strada is certainly qualified to testify about these subjects,
his testimony in this matter is largely conclusory and unsupported. As discussed further below,

30

the Court does not find that Defendant has adequately proved its claim that undue hardship
would result from Plaintiff’s requested religious accommodation.
1.

Officer Morale

First, Defendant has offered little evidence to support its assertion that granting Plaintiff a
permanent

accommodation

would

affect

employee

morale.

Strada

testified

that

“if staff keep getting pulled from their original duties to relieve others . . . a post they didn’t sign
for or bid for, it’s common that they wouldn’t be too happy about it.” (Def’s Ex. H at 43.)
However, when asked how desirable Sunday shifts were for correctional officers, he stated: “I
don’t know. . . . I did not control the roster. . . . I didn’t have anything to do with the roster
assignments, days off.” (Id. at 45); see also Def’s Ex. J, p. 3 ¶ 14 (stating without elaboration
that a factor he considered was officer “morale” and that “[Plaintiff’s] absence may create an
increased workload for his co-workers.”)
Defendant also points to Plaintiff’s statements that “everybody seem[ed] to know” about
the situation and that “some officers were great, some Lieutenants were great, but others were
just like --- they made me feel like, ‘Oh, you’re the guy that’s having a problem’” and “‘You’re
the one that wants to be a senior on the fast track and take the weekends off.’” (Def’s Ex. D., at
29.) This statement, while it does indicate that at least a few officers have expressed some
resentment, does not prove, as a matter of law, that actually accommodating Plaintiff would have
affected officer morale to such a degree as to constitute an undue hardship or burden to
Defendant.

Neither does Strada’s wholly conclusory and unsupported statement that “it’s

common that [staff] wouldn’t be too happy about [being reassigned].” (Def’s Ex. H at 43.)
Defendant offers no evidence that the accommodation of a single officer’s religious beliefs
actually would have impacted the morale of MDC Brooklyn’s 320-officer work force in even a

31

de minimus way. Based on this scant and unsubstantiated evidence, a jury could easily find that
Defendant has failed to meet its burden of proving undue hardship on this basis. See Brown v.
Polk Cnty., 61 F.3d 650, 655 (8th Cir. 1995) (en banc) (“Undue hardship requires more than
proof of some fellow-worker’s grumbling . . . .An employer . . . would have to show . . . actual
imposition on co-workers or disruption of the work routine.”) (quoting Burns, 589 F.2d at 407),
cert. denied, 516 U.S. 1158 (1996). 28
2.

Seniority System

Although Hess and Marin-Rodriquez testified that accommodating Plaintiff’s religious
observance would have violated the seniority structure of the Master Agreement, as discussed
above, there is simply no evidence that Defendant tried to work with the Union to reach an
accommodation for Plaintiff. Nor is there evidence demonstrating that it would have been
unduly burdensome or impossible to devise an accommodation that would have been consistent
with the Master Agreement. Indeed, given that Plaintiff apparently was only the second person
in seven years at MDC Brooklyn who had requested a religious accommodation (Def. Ex. L, at
6-7, 49), it seems likely that had Defendant sought to work with the Union regarding Plaintiff’s
request, there would have been various ways of accommodating his Sabbath observance without
unduly burdening the facility or violating the terms or spirit of the Master Agreement. For
example, Plaintiff’s Saturday shifts could have been swapped with the Sunday shifts of other
officers. The record before the Court gives no indication that any such options were considered
by Defendant or discussed with the Union.
28

Furthermore, the Court finds Brener v. Diagnostic Ctr. Hosp., 671 F.2d 141 (5th Cir.
1982), cited by Defendant, to be distinguishable on the ground that Defendant experimented with
directing other employees to trade shifts with the plaintiff which resulted in demonstrated
lowering of morale. Id. at 146–47. As noted in Draper, “[t]he employer is on stronger ground
when he has attempted various methods of accommodation and can point to hardships that
actually resulted.” Draper, 527 F.2d at 520.
32

Thus, a jury could find that accommodating Plaintiff would not have required a breach of
the Master Agreement or even a de minimis disruption of the seniority system.
3.

Budgetary Constraints

The Court similarly finds that Defendant’s evidence about the budgetary burden that
would result from accommodating Plaintiff is insufficient to warrant summary judgment. Strada
testified that MDC Brooklyn operated under a strict budget, a statement that was corroborated by
Wolfe and Bradley. (Def. 56.1 ¶¶ 85, 88); (Def’s Ex. P (Bradley Deposition), at 6–7); (Def’s Ex.
O (Wolfe Deposition), at 9.) He also testified that for the days that he denied Plaintiff leave
without pay, it was “due to shortage of staff on the custodial roster, no overtime funds available
to accommodate his request, and the fact [Plaintiff] was informed he had the opportunity to
request a swap of his work schedule with other correctional officers.” (Def’s Ex. J, ¶ 12.)
Notably, Defendant provides no documentary support for Strada’s statements about the staff
shortage or unavailability of overtime funds.
Strada’s testimony is simply insufficient to meet Defendant’s burden of demonstrating, as
a matter of law, that accommodating Plaintiff would have required Defendant to incur overtime
expenses or suffer a financial burden or harm. Construing the evidence in the light most
favorable to Plaintiff, it does not appear Strada had any basis for claiming that the requested
accommodation would have had any impact on MDC Brooklyn’s budget or on other employees.
Strada testified that he had received at most one previous request for a religious accommodation
before Plaintiff’s (Def’s Ex. H, at 21–22), and from the record it does not appear that he could
have been aware of the impact of any previous attempts to accommodate employees’ religious
observances. Indeed, Marin-Rodriguez testified that, in her seven years at MDC Brooklyn, she
had encountered only one other religious accommodation request. Thus, given the statements of

33

Defendant’s own witnesses, there seems to be no basis for the claim that accommodating
Plaintiff’s Sabbath observance would have caused the facility any financial burden, no less an
undue one. 29
To the extent Defendant relies on the fact that the facility had to pay 56 hours of overtime
in order to cover shifts that Plaintiff was scheduled for, but failed to work, this fact, even
assuming it to be true, does not demonstrate that accommodating Plaintiff would have caused a
financial burden or budgetary harm to Defendant. Simply put, the fact that Defendant had to pay
overtime when Plaintiff failed to appear for his Saturday shifts does not show that the facility
would have to pay overtime had it accommodated Plaintiff’s request not to work those shifts.
Having to find coverage for a shift at the last minute because the scheduled employee has not
shown up is a very different situation than planning a schedule in advance that excuses one
employee from working a particular shift or shifts. As previously discussed, Defendant has
failed to put forth evidence demonstrating that it could not have devised a schedule that would
have allowed Plaintiff to observe the Sabbath without requiring overtime coverage by other
officers.
Thus, a jury could find that Defendant did not deny Plaintiff a religious accommodation
for budgetary reasons. And it could certainly find that accommodating Plaintiff would not have
caused Defendant undue financial burden or harm.
4.

Safety Concerns

Defendant also cites to safety concerns as a basis for not granting Plaintiff his requested
accommodation, arguing that “[a]ccommodating Plaintiff’s request could require pulling staff
29

Any inference of a financial burden on Defendant is further undercut by the fact that
any accommodation of Plaintiff could have been limited in time to extend only to Plaintiff’s
probationary period, which could have been as short as six months. During that initial period,
Plaintiff had no ability to bid on different shift assignments.
34

from other areas of MDC,” and that “an inadequate prison staff would jeopardize the safety of
the inmates and the staff, including correctional officers.” (Def. Br. at 20.) This argument, like
the others, is both speculative and unsupported by the evidence. Defendant has put forth no
evidence to show that accommodating the Sabbath observance of one out of 320 correctional
officers would have jeopardized anyone’s safety at MDC Brooklyn.
As with the overtime issue, Defendant seeks to support its argument with the fact that
“when Plaintiff was scheduled to work and did not appear for his shift, MDC Brooklyn pulled
other staff members from their posts and paid 56 hours of overtime.” Id. However, for the same
reasons discussed above, this fact provides no basis for predicting the consequences of a planned
accommodation or shift change, and certainly does not demonstrate that security at the facility
would have been compromised in any way if the schedule were altered in advance to assign
another officer to cover the Saturday shifts originally assigned to Plaintiff. 30
*

*

*

In sum, the evidence proffered at this stage by Defendant regarding all of the above
burdens, i.e., Strada’s unsupported testimony, while it could provide a sufficient basis for a jury
to find that accommodating Plaintiff would impose an undue burden on Defendant, is plainly
insufficient to support such a finding as a matter of law. By pointing to several statements from
Strada’s testimony that are unsupported and conclusory, Plaintiff has “designate[d] specific facts
showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. at 323–24 (emphasis
30

If anything, scrambling to find last-minute coverage for the Saturday shifts for which
Plaintiff failed to appear presented a greater risk to the facility’s security than if a schedule
providing for this coverage had been planned in advance, pursuant to an accommodation.
Furthermore, though not explained in the record, depending on when the officers received their
schedules, it might not have been necessary to make a “change” to the Saturday shift schedule, as
opposed to generating a schedule in the first instance that simply did not include Plaintiff on the
Saturday roster—which might have lessened or eliminated the impact of the accommodation on
officer morale.
35

added; quotations omitted). At trial, a jury reasonably could conclude, based on Strada’s stated,
but unsupported, reasons for denying Plaintiff’s requested accommodation, that Defendant did
not give any real consideration to Plaintiff’s request—instead merely offering post hoc
justifications for not accommodating Plaintiff—and/or that Defendant’s reasons for denying the
accommodation, even if accepted, are insufficient to justify that denial. 31
Defendant argues that Plaintiff “has failed to dispute any of the remaining statements
properly,” because he “has offered no evidentiary basis for his claimed dispute of these facts,”
merely calling Strada’s sworn statements conclusory. (Def. Reply Br. at 2.) Yet the fact that
Plaintiff has not offered contrary evidence on an issue as to which Defendant carries the burden
does not mean that the Court must simply accept Defendant’s 56.1 statements of fact. “[T]he
Second Circuit has cautioned . . . [that] a movant may not be granted summary judgment simply
because its motion is not properly opposed.” McLaughlin v. N.Y.C. Bd. of Educ., 04-Civ.-1270,
2008 WL 216308, at *1 (S.D.N.Y. Jan. 22, 2008) (citing Vt. Teddy Bear Co. v. 1-800 Beargram
Co., 373 F.3d 241, 244 (2d Cir. 2004)). “Thus, the ‘Court may not rely solely on the statement
of undisputed facts contained in the moving party’s Rule 56.1 Statement; it also must be satisfied
that the moving party’s assertions are supported by the record.’” Id. (quoting Allen v. City of

31

The Court does not find that the fact that Marin-Rodriguez sent her draft rejection
memorandum to the Employment Law Branch, which thereafter approved it, shows that
Defendant in fact considered the burden that accommodating Plaintiff would impose on
Defendant. Marin-Rodriguez sent only the draft memorandum, which contained nothing about
why accommodating Plaintiff would impose a burden on Defendant. While Marin-Rodriguez
might have attached Plaintiff’s request letter to her draft memorandum, she did not send any
documentation regarding the potential impact of Plaintiff’s request on the facility, and the
Employment Law Branch did not request any. Thus, there is no evidence that the Employment
Law Branch considered, or could have considered, the financial, logistical, and security burdens
Defendant now claims motivated or justified its denial of Plaintiff’s requested accommodation.
There is certainly no documentation of the Employment Law Branch’s consideration of these
issues, which would appear to be outside their purview and expertise.
36

N.Y., 480 F. Supp. 2d 689, 703 (S.D.N.Y. 2007)). This, the Court finds, Defendant has failed to
do.
Accordingly, because Defendant has failed to meet its burden of proving that no
accommodation to Plaintiff’s religious observance could have been made without Defendant
incurring undue hardship, the Court finds that a there remains a disputed issue of fact on this
issue and that Defendant, therefore, is not entitled to summary judgment.
CONCLUSION
Defendant’s motion for summary judgment is DENIED. The case will proceed on the
question of whether accommodating Plaintiff’s religious observance would have imposed an
undue burden upon Defendant.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: March 6, 2017
Brooklyn, New York

37