Chavis v. Wal-Mart Stores, Inc. et al
OPINION re: 44 MOTION for Summary Judgment filed by Wal-Mart Stores East, LP, Wal-Mart Stores, Inc. Accordingly, defendants' motion for summary judgment is denied as to Chavis's retaliation claim and promotion claims based on Walmart's failure to promote her to the Flanders MAPM, Hartford MAPM, and Suffern ASM positions. Defendants' motion is granted as to Chavis's failure to accommodate claim, hostile work environment claim, and prom otion claims based on Walmart's failure to promote her to the market supply positions, the Kingston co-manager position, and the Valley Stream, Mohegan Lake, Watchung, and New Haven MAPM positions. A scheduling order will issue simultaneously setting a date for trial and associated deadlines. (Signed by United States Circuit Judge Denny Chin, Sitting by Designation on 7/18/2017) (mro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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- against -
WAL-MART STORES, INC., WAL-MART
STORES EAST, LP,
15 Civ. 4288 (DC)
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G. Oliver Koppell, Esq.
Daniel Schreck, Esq.
Law Offices of G. Oliver Koppell & Associates, P.C.
99 Park Avenue, Suite 1100
New York, New York 10016
Pamela J. Moore, Esq.
Sami Asaad, Esq.
McCarter & English, LLP
City Place I, 185 Asylum Street, 36th Fl.
Hartford, Connecticut 06103
CHIN, Circuit Judge:
In 2013, plaintiff Cory Chavis, an Asset Protection Manager at the
Walmart store in Suffern, New York, requested a religious accommodation permitting
her not to work on Sundays so she could observe the Sabbath. She brought this action
against defendants Wal-Mart Stores, Inc. and Wal-Mart Stores East, LP (together,
"Walmart") under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et
seq. ("Title VII"), seeking damages and alleging that Walmart employees unlawfully
harassed her and discriminated against her on the basis of her religion and retaliated
against her for pressing her accommodation request. Defendants move for summary
judgment to dismiss the complaint in its entirety. Because genuine issues of material
fact preclude the entry of summary judgment on certain of Chavis's claims, defendants'
motion is granted in part and denied in part.
The following facts are summarized from the evidentiary record and are
construed in the light most favorable to Chavis, the party opposing summary judgment.
Chavis works for Walmart as the Asset Protection Manager ("APM") of the
Suffern, New York store. ECF 67, Consol. Stmt. of Mat. Facts ("Consol. Stmt.") ¶ 1. She
has worked for Walmart since 1994 and has been an APM at the Suffern store since
2006. Id. Chavis is a member of the Apostolic Pentecostal Church and observes the
Sabbath on Sundays by, among other things, refraining from work. Id. ¶¶ 47-50.
For approximately six years in the APM position, Chavis was able to
arrange her schedule to avoid work on Sundays. In March 2013, however, Walmart
changed its policy to require APMs to work every third Sunday. Id. ¶¶ 53, 142. Chavis
requested an accommodation not to work on Sunday due to her religious observance.
Id. ¶ 54. The request was not granted, and Chavis was told that she could either use
vacation days to avoid working on Sundays or find another position that did not
require any Sunday work. Id. ¶ 55. For nearly six months, Chavis used her vacation
days to avoid working Sundays. Id. ¶¶ 55, 143, 148. After additional supervisors failed
to grant her request, Chavis appealed to Walmart's "Open Door" hotline. Id. ¶¶ 144-47.
In September 2013, Walmart exempted her from Sunday work and restored the vacation
days she had used in the prior six months. Id. ¶¶ 147-48; ECF 60, Koppell Decl. Exs. 1, 2
("Chavis Dep.") at 88-89.
Subsequently, a number of interactions took place between Chavis and
her superiors, which Chavis describes as discrimination and harassment in retaliation
for her accommodation request, and which Walmart claims were routine actions that
had no adverse effect on Chavis's employment. See generally ECF 58, Pl.'s Opp. at 6-10.
In addition, Chavis applied seventeen times to various positions between March 2013
and the filing of the instant lawsuit. ECF 47, Assad Decl. Ex. H. She was denied each
promotion and interviewed for only one. Cons. Stmt. ¶¶ 185-88.
Chavis filed this suit in June 2015, claiming that Walmart discriminated
and retaliated against her in violation of Title VII and NYSHRL by, among other things,
denying her promotions while promoting others who were not Sunday Sabbath
observers, imposing unwarranted discipline, and subjecting her to unwarranted
surveillance, investigation, and other harassment sufficient to alter the terms and
conditions of her work environment. See ECF 1, Compl. at 12-14. After the completion
of discovery, defendants moved for summary judgment, principally on the ground that
Chavis cannot establish a prima facie case of discrimination for any of her claims. See
ECF 45, Defs.' Mem. at 1. Chavis opposed the motion, and defendants moved to strike
portions of Chavis's declaration and counter-statement of material facts as contradictory
to her deposition testimony, lacking personal knowledge, and based on hearsay or
other inadmissible evidence. ECF 66, Defs.' Mot. to Strike. After oral argument on June
19, 2017, I denied defendants' motion to strike except as to paragraph 6 of Chavis's
declaration, which was stricken as inadmissible hearsay. See Minute Entry dated
Chavis alleges that Walmart discriminated against her on the basis of
religion in violation of Title VII by failing to accommodate her religious observance for
a six-month period in 2013, creating a hostile work environment, and failing to promote
her on seventeen separate occasions. She also contends that Walmart retaliated against
her because of her accommodation request. After discussing the applicable legal
standard, I address each claim in turn.
Summary judgment is appropriate "if the movant shows 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 SCR Joint Venture L.P. v. Warshawsky, 559
F.3d 133, 137 (2d Cir. 2009). "An issue of fact is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party," and "[a] fact is material
if it might affect the outcome of the suit under the governing law." SCR Joint Venture,
599 F.3d at 137 (quoting Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008)). "A court
reviewing a motion for summary judgment must 'construe the facts in the light most
favorable to the non-moving party and must resolve all ambiguities and draw all
reasonable inferences against the movant.'" Beyer v. Cty. of Nassau, 524 F.3d 160, 163 (2d
Cir. 2008) (quoting Dall. Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003)).
Title VII prohibits "discriminat[ion] against any individual with respect to
[her] compensation, terms, conditions, or privileges of employment, because of such
individual's . . . religion." 42 U.S.C. § 2000e-2(a)(1). Chavis's Title VII and NYSHRL
discrimination claims are governed by the burden-shifting analysis set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Tolbert v. Smith, 790 F.3d
427, 434 (2d Cir. 2015). New York courts "require the same standard of proof for claims
brought under the NYSHRL as for those brought under Title VII." Leopold v. Baccarat,
Inc., 174 F.3d 261, 264 n. 1 (2d Cir. 1999). Accordingly, my conclusions regarding
Chavis's Title VII claims for retaliation, hostile work environment, and discriminatory
failure to accommodate and promote apply with equal force to her analogous NYSHRL
Failure to Accommodate
Chavis claims that Walmart failed to accommodate her Sabbath
observance for the six-month period from April to September 2013, in violation of Title
VII. Pl.'s Opp. 29-30. She argues that, during this period, Walmart disciplined her by
"forc[ing her] to use her vacation days to avoid working on Sundays." ECF 59, Pl.'s 56.1
Stmt. ¶ 56. Walmart argues in response that Chavis's use of vacation days does not
constitute disciplinary action, and she was not disciplined in any other way for not
working Sundays. ECF 63, Defs.' Reply at 3.
"It is an unlawful employment practice . . . for an employer not to make
reasonable accommodations, short of undue hardship, for the religious practices of his
employees and prospective employees." Baker v. The Home Depot, 445 F.3d 541, 546 (2d
Cir. 2006) (citation and internal quotation marks omitted). To establish a failure-toaccommodate claim under Title VII, a plaintiff must first prove a prima facie case
of religious discrimination: namely, that "(1) he or she has a bona fide religious belief
that conflicts with an employment requirement; (2) he or she informed the employer of
this belief; (3) he or she was disciplined for failure to comply with the conflicting
employment requirement." Philbrook v. Ansonia Bd. of Educ., 757 F.2d 476, 481 (2d Cir.
1985) (citation omitted).
Once a plaintiff establishes a prima facie case of religious discrimination,
the inquiry turns to whether the employer complied with the statutory requirement to
offer the plaintiff a "reasonable accommodation" for his or her religious belief, "unless
doing so would cause the employer to suffer an undue hardship." Baker, 445 F.3d at 546
(quoting Cosme v. Henderson, 287 F.3d 152, 158 (2d Cir. 2002)).
The parties do not dispute that Chavis has a bona fide religious belief that
conflicted with an employment requirement or that she informed Walmart of this belief.
Cons. Stmt. ¶¶ 47-54, 57. Because Chavis was not disciplined for failing to comply with
the requirement to work every third Sunday, however, she cannot establish a prima
facie case of religious discrimination and her failure to accommodate claim therefore
As an initial matter, Chavis did in fact comply with Walmart's
requirement by availing herself of the option to use her vacation days on the Sundays
that she was required to work. Cons. Stmt. ¶¶ 55-56. Although, according to Chavis,
she was told that she could either use her vacation days or find another position that
did not require Sunday work, at no point did Walmart discipline Chavis for taking
vacation days every third Sunday. Chavis Dep. at 92.
Chavis argues instead that Walmart forced her to use vacation days to
avoid working on Sundays, which constituted "discipline." This argument fails as a
matter of law because requiring an employee to use vacation days to avoid work
conflicting with the employee's religious observance does not constitute an adverse
employment action. 1
Although the Second Circuit has not defined what constitutes "discipline"
in the context of a religious discrimination claim based on an employer's failure to
accommodate, district courts in the circuit have equated discipline with an adverse
employment action. See St. Juste v. Metro Plus Health Plan, 8 F. Supp. 3d 287, 316
(E.D.N.Y. 2014); Siddiqi v. N.Y. City Health & Hosps. Corp., 572 F. Supp. 2d 353, 370
(S.D.N.Y. 2008). 2 An adverse employment action is a "materially adverse change in the
terms and conditions of employment," such as "a termination of employment, a
demotion evidenced by a decrease in wage or salary, a less distinguished title, a
To the extent that Chavis alleges that she was harassed in response to her taking
vacation days to observe the Sabbath, see Cons. Stmt. ¶ 56, I conclude that no reasonable jury
could find, on this record, that she was harassed to an extent that there was an adverse
The Second Circuit has not expressly addressed what constitutes "discipline" for
purposes of a failure-to-accommodate claim in a precedential opinion. In two summary orders,
however, the Circuit concluded that the plaintiffs failed to establish a prima facie case of failure
to accommodate where the plaintiffs did not offer evidence sufficient to establish that they
suffered adverse employment actions. See Marmulszteyn v. Napolitano, 523 F. App'x 13, 14 (2d
Cir. 2013) (summary order) ("[W]e agree with the District Court that [the 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 F. App'x
32, 33 (2d Cir. 2010) (summary order) ("[W]e agree with the district court that [the plaintiff's]
claim of discrimination based upon defendants' failure to accommodate his religious practices
fails because there is insufficient evidence showing that [he] suffered an adverse employment
material loss of benefits, [or] significantly diminished material responsibilities." Joseph
v. Leavitt, 465 F.3d 87, 90 (2d Cir. 2006).
In a typical failure-to-accommodate case, a plaintiff is disciplined by her
employer after she fails to comply with an employment requirement due to her
religious belief. Here, Chavis was not disciplined and did not suffer an adverse
employment action between April and September 2013 as a result of her religious
conflict; as noted above, she complied with her job requirements and experienced no
demotion or alteration of job responsibilities as a result of her use of vacation days to
avoid Sunday work.
The fact that Chavis needed to use vacation days to avoid a religious
conflict is not an adverse employment action because she "was not deprived of a
material benefit, [but] simply chose to use the benefit in a particular way." O'Neill v.
City of Bridgeport Police Dep't 719 F. Supp. 2d 219, 226 (D. Conn. 2010) (holding that the
plaintiff did not suffer an adverse employment action by needing to use vacation days
to accommodate his religious beliefs); accord St. Juste, 8 F. Supp. 3d at 316 (collecting
district court cases holding the same). Furthermore, as the result of Chavis's appeals to
the Open Door hotline, she was ultimately exempted from working Sundays without
having to use her vacation days, and the vacation days she used in the preceding six
months were restored.
Finally, even if Chavis could establish a prima facie case of discrimination,
it was not unreasonable for Walmart to require her to use vacation days as a religious
accommodation. An employer's accommodation offer is reasonable where it
"eliminate[s] the conflict between the employment requirement and the religious
practice." Baker, 445 F.3d at 548 (citation omitted). The Second Circuit has noted that a
proposed accommodation may be unreasonable "if it cause[s] [an employee] to suffer an
inexplicable diminution in his employee status or benefits," but that "employees are not
entitled to hold out for the most beneficial accommodation." Id. (citation omitted).
Chavis's ability to use her vacation time to observe the Sabbath eliminated
the conflict with the requirement that she work every third Sunday. Title VII requires
only that Walmart offer a reasonable accommodation, not necessarily the one that
Chavis seeks. Durant v. Nynex, 101 F. Supp. 2d. 227, 234 (S.D.N.Y. 2000) (quoting
Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 69 (1986)). By using her vacation days,
Chavis was able to observe the Sabbath and was required only to use a workplace
benefit for its intended purpose -- time off from work. Cf. Ansonia Bd. of Educ., 479 U.S.
at 70 (holding that allowing an employee to take unpaid leave is typically a reasonable
accommodation). By allowing Chavis to use her vacation time every third Sunday,
Walmart was accommodating her, and in the end Walmart even returned the vacation
days she had use for these purposes. Although "[o]rdinarily, questions of
reasonableness are best left to the fact finder," Baker, 445 F.3d at 548, Chavis offers no
argument in favor of finding the accommodation unreasonable.
Accordingly, I find Walmart's interim accommodation reasonable as a
matter of law. See Durant, 101 F. Supp. 2d at 234; Guy v. MTA N.Y. City Transit, No. 10
CV 1998, 2012 WL 4472112, at *8 (E.D.N.Y. Aug. 6, 2012), report and recommendation
adopted, No. 10-CV-01998, 2012 WL 4472098 (E.D.N.Y. Sept. 26, 2012); see also O'Neill,
719 F. Supp. 2d at 227 ("It is not unreasonable for an employer to require an employee to
use his vacation days as part of a religious accommodation."). Chavis's failure-toaccommodate claim is therefore dismissed. See Ansonia Bd. of Educ., 479 U.S. at 68
("[W]here the employer has already reasonably accommodated the employee's religious
needs, the statutory inquiry is at an end.").
Hostile Work Environment
Chavis next claims that she was subject to a hostile work environment --
through unwarranted searches, discipline, and condescending remarks -- after she
requested and received a religious accommodation. Pl.'s Opp. at 29. Walmart argues
that the complained-of conduct is insufficiently severe or pervasive to constitute a
hostile work environment. Defs.' Reply at 10.
To establish a claim for a hostile work environment in violation of Title
VII, a plaintiff must show that "the workplace is permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive working environment."
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citation omitted). "The severe or
pervasive standard has objective and subjective elements: the misconduct shown must
be severe or pervasive enough to create an objectively hostile or abusive work
environment, and the victim must also subjectively perceive that environment to be
abusive." McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 79 (2d Cir. 2010) (citation and
internal quotation marks omitted).
Courts review the totality of the circumstances, including "the frequency
of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with
an employee's work performance." McGullam, 609 F.3d at 79 (quoting Harris, 510 U.S. at
23). The plaintiff must establish that the relevant conduct occurred because of the
plaintiff's religion, as well as that the plaintiff's employer was responsible for the
discriminatory conduct. See Gregory v. Daly, 243 F.3d 687, 692 & n. 3 (2d Cir. 2001).
On the evidence in the record, viewed in the light most favorable to
Chavis, no reasonable jury could conclude that the alleged discriminatory conduct was
(1) sufficiently severe or pervasive to alter the conditions of her employment or (2) the
result of her religious beliefs.
Notwithstanding Chavis's subjective perception, the conduct alleged was
not severe or pervasive enough to create an objectively hostile or abusive work
environment. In support of her claim, Chavis alleges that she was subject to increased
review and surveillance, a single unwarranted disciplinary coaching, the disclosure of
her accommodation to other store employees, a comment by Sherry Savage, the Market
Asset Protection Manager ("MAPM") for the Suffern store, in front of other employees
that Savage would need to grant Chavis an exception from the dress code to continue
wearing skirts, and a comment by John Flowers, the Regional Asset Protection Manager
("RAPM") who oversaw Savage, describing Chavis as "the fuel that feeds the fire." See
generally Pl.'s Opp. at 9-10. The complained-of conduct was not frequent -- Chavis cites
several visits by supervisors to the Suffern store from November 2013 to October 2014,
two isolated comments from Flowers and Savage, and a single disciplinary report that,
according to Chavis, had no impact on her employment and expired after one year. 3
While Chavis felt humiliated by Savage's reference to her attire, that isolated incident
does not rise to level of severity needed to sustain a hostile work environment claim.
See Petrosino v. Bell Atl., 385 F.3d 210, 223 (2d Cir. 2004) ("Simple teasing, offhand
comments, or isolated incidents of offensive conduct (unless extremely serious) will not
support a claim of discriminatory harassment."). Taken together, the conduct alleged
Chavis also testified that the harassment stopped around September 2014, when
she filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). Chavis
Dep. at 265-66.
was not "sufficiently severe or pervasive to alter the conditions of the victim's
employment." Harris, 510 U.S. at 21.
Furthermore, there is no evidence from which a jury could infer that the
purportedly harassing conduct was related to Chavis's religion. Accepting as true
Chavis's version of events, the conduct described appears facially neutral. Judith
O'Gara, the Suffern store's other APM, was subject to the same increased surveillance
and coaching that Chavis was. See Chavis Dep. at 32-38. Savage's comment about
Chavis's clothing could be read to reflect some religious insensitivity; as discussed
above, however, this isolated incident is insufficiently severe or pervasive to constitute
a hostile work environment. Similarly, while the comment that Chavis was "the fuel
that feeds the fire" could reflect some animosity towards Chavis, there is nothing in that
statement from which a jury could infer that it was made because of Chavis's religious
beliefs. While, as discussed further below, the record evidence supports an inference of
retaliatory animus, no rational jury could conclude that the hostile comments and
surveillance that Chavis faced were related to her religion.
Failure to Promote
Next, Chavis complains that Walmart discriminated against her on the
basis of religion by denying her seventeen applications to various internal positions
between April 2013, when she initially requested a religious accommodation, and June
2015, when she filed the complaint in this action. Pl.'s Opp. at 12. Walmart contends
that for each position, Chavis was either unqualified or not similarly situated to the
successful applicants. Defs.' Mem. at 11.
The record shows that, during this period, Chavis applied for six Market
Asset Protection Manager ("MAPM") positions in six locations (Valley Stream, Mohegan
Lake, Watchung, Flanders, Hartford, and New Haven), an Assistant Store Manager
("ASM") position in Suffern, a co-manager position in Kingston, and six times to two
market supply positions in separate regions. ECF 47, Asaad Decl. Ex. H. Chavis
appears to have applied twice to two of the MAPM positions and the ASM position,
bringing the total number of applications to seventeen. Id.
The plaintiff must first establish a prima facie case of discriminatory
failure to promote by showing that: (1) she is a member of a protected class; (2) she is
qualified for the position sought; (3) she was denied the position; and (4) the
circumstances of the denial give rise to an inference of discrimination. Howley v. Town
of Stratford, 217 F.3d 141, 150 (2d Cir. 2000).
For the purposes of failure-to-promote claims, whether the plaintiff is
qualified "refers to the criteria the employer has specified for the position." Williams v.
R.H. Donnelley, Corp., 368 F.3d 123, 127 (2d Cir. 2004) (citation omitted). As noted
above, employers must offer reasonable accommodations for employees' religious
practices, unless doing so would cause the employer to suffer an undue hardship.
Cosme, 287 F.3d at 158.
An inference of discrimination may be drawn from a showing that a
similarly situated individual that is not in the plaintiff's protected class was more
favorably treated than the plaintiff. Hargett v. Nat'l Westminster Bank, USA, 78 F.3d 836,
839 (2d Cir. 1996). To be deemed similarly situated, individuals must be similarly
situated in all material respects. Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d
Cir. 1997). What constitutes "all material respects" varies from case to case but requires
a "reasonably close resemblance of facts and circumstances of plaintiff's and
comparator's cases, rather than a showing that both cases are identical." Graham v. Long
Island R.R., 230 F.3d 34, 39 (2d Cir. 2000).
If the plaintiff establishes a prima facie case, and the employer presents a
legitimate, non-discriminatory reason for its actions, the burden shifts back to the
plaintiff to present evidence that the employer's reason for not hiring the plaintiff is
mere pretext. See Howley, 217 F.3d at 150.
In a discriminatory failure-to-promote case, "[e]ach instance of a failure to
promote is considered a discrete act." Jimenez v. City of New York, 605 F. Supp. 2d 485,
499 (S.D.N.Y. 2009). Accordingly, I consider whether Chavis has satisfied her burden to
establish a prima facie case regarding each denied promotion in question.
Market Supply Positions
As a threshold matter, defendants argue that Chavis's promotion claims
based on the six market supply positions must be dismissed because they were
inappropriately raised for the first time in Chavis's opposition brief. See Defs.' Reply at
8 (citing Beckman v. United States Postal Serv., 79 F. Supp. 2d 394, 407 (S.D.N.Y. 2000)).
Although these claims were not included in the Complaint, they were
raised during discovery. In the Complaint, Chavis described eight positions -- none of
which are market supply roles -- to which she claimed she was denied promotion.
Compl. ¶¶ 34, 50, 72, 82, 94. At Chavis's deposition, Chavis identified seventeen
positions, read into the record by her counsel, as positions she applied to between April
2013 and the filing of her suit. Chavis Dep. at 158-61. She confirmed that the four
categories of jobs she applied for were MAPM roles, market supply roles, an ASM role,
and a co-manager role. Id. at 161. Furthermore, counsel for Walmart questioned Chavis
about the successful candidates for the market supply roles, id. at 161-62, indicating
defendants' awareness that Chavis was pursuing promotion claims based on positions
not listed in the Complaint. Accordingly, the court is satisfied that Walmart was not
surprised or prejudiced by Chavis's failure-to-promote claims relating to the market
supply positions and will consider the claims on their merits.
Defendants further contend that, even if Chavis is allowed to assert these
claims, she cannot establish a prima facie case based on the record evidence. I agree
and grant defendants' motion as to the claims of failure to promote for the six market
Although Chavis alleges discriminatory behavior by the hiring managers
for the MAPM, ASM and co-manager roles, and provides evidence regarding her
qualifications as compared to the successful candidates hired for those positions, she
offers no facts to support her claims based on the market supply jobs. Chavis
acknowledged in her deposition that, aside from the first name of the successful
candidate for the market supply role in her region, she did not know who interviewed
for the positions or who the successful candidates were. Chavis Dep. at 161-62. Chavis
also offered no evidence regarding possible animus on the part of Andrew Holler, the
hiring manager for those positions. Chavis merely argues that Walmart's failure to
interview her for these jobs, considered together with the circumstances regarding
Walmart's failure to promote her to other positions, establishes an overall pattern of
discrimination that extends to the market supply positions.
The denial of seventeen promotion applications over the course of
approximately two years is arguably probative of discriminatory motivation on
Walmart's part. Without any information regarding the market supply positions
themselves, however -- such as the minimum qualifications, the other applicants, any
successful candidates, or those involved in hiring for the position -- Chavis cannot
discharge her burden to establish a prima facie case of discrimination with regard to
those positions. Accordingly, because no jury could infer from the record evidence that
Chavis was qualified for the market supply roles, that there were circumstances leading
to an inference of discriminatory motive, or that Walmart's reasons for choosing other
candidates were pretext for discrimination, defendants' motion for summary judgment
is granted as to the market supply promotion claims.
Eight of the remaining eleven applications at issue were for MAPM
positions, a role involving direct supervision of APMs like Chavis. Defendants argue
that Chavis cannot establish a prima facie case as to these positions, and that her claim
nonetheless fails because there is no evidence that Walmart's explanations for its choice
of candidates are pretextual.
Defendants first assert that Chavis is unqualified for the MAPM role
because it requires Sunday work. Considering the evidence in the light most favorable
to her, however, Chavis has raised a genuine issue of material fact regarding her
qualifications. First, the MAPM job description does not mention a requirement to
work on Sundays. Asaad Decl. Ex. J. Second, while defendants argue that MAPMs
worked on Sundays "routinely" and "often," Defs.' Mem. at 3, 12, Savage testified that,
during her 21 years as a MAPM, she did not generally work on Sundays and was
required to do so only "several" times, usually for an emergency or other urgent
situation, Koppell Decl. Ex. 4 ("Savage Dep.") at 88-89. Finally, Chavis has stated that
she believes she would be allowed to work on Sunday in the event of emergency.
Chavis Dec. ¶ 12; Chavis Dep. at 67-70.
Furthermore, Walmart's argument that it could not have reasonably
accommodated Chavis's Sabbath observance in the MAPM position is not dispositive of
her claims. According to Walmart, the distance between districts would make it
unreasonably hard for a MAPM from a different district to cover for Chavis in the event
that work arose on a Sunday. Const. Stmt. ¶¶ 30-35. As Chavis notes, however, there is
no evidence of any analysis by Walmart at the time of her application regarding
whether an accommodation would create undue hardship. Thus, given the disputed
questions of whether Sunday work was in fact required for the MAPM position and, if
so, whether Chavis would be able to satisfy that requirement, the prospect of
accommodating Chavis's religious beliefs in the MAPM role does not appear to be so
unreasonable that no jury could find otherwise.
Walmart also argues that no inference of discrimination can be drawn
from its failure to promote Chavis to MAPM because the successful candidates were not
similarly situated to Chavis. Of the six MAPM positions for which Chavis applied, four
were filled by candidates who, at the time they were promoted, held positions ranked
equal to or higher than MAPM. The other two positions were filled by current APMs
like Chavis, but Walmart claims these candidates had experience Chavis lacked,
including time spent as sole APMs of a single store (as opposed to co-APMs like Chavis
and O'Gara) and, in one case, a prior stint as acting MAPM.
With regard to the positions filled by lateral employees who formerly held
MAPM or equivalent positions, Chavis has not brought forth evidence from which a
jury could infer discrimination in the denial of her applications. The employment
experience of those candidates forecloses the argument that they were similarly situated
to Chavis "in all material respects." Graham, 230 F.3d at 39; see also Gonzalez v. City of
New York, 354 F. Supp. 2d 327, 335 (S.D.N.Y. 2005) (dismissing claims of failure to
promote where plaintiffs could not demonstrate that employees promoted in their place
were less qualified than plaintiffs).
On the other hand, Chavis has presented evidence based on which a jury
could reasonably conclude that she was similarly situated to the APMs hired for the
Flanders and Hartford MAPM positions. In addition to holding the same title as those
candidates, Chavis had been working at Walmart for approximately 21 years at the time
of her applications. She received "solid performance" grades on her evaluations and
was awarded "Investigator of the Year" in 2015. ECF 57, Chavis Decl. ¶ 19. Moreover,
Chavis was the sole APM of her store for six years prior to O'Gara's arrival. Id. ¶ 5. 4
Defendants also note that one of these hires had experience as an ASM. Chavis
underwent managerial training at a prior position, however, which she argues provided her
with experience equal to that of an ASM. Chavis Dep. at 168, 170-71; see also Chavis Decl. ¶¶ 4,
6). Construing the facts in the light most favorable to Chavis, there is a triable fact issue as to
Chavis's qualifications relative to the successful candidate.
Chavis, who has been employed with Walmart since 1994 and was
successfully promoted to the position of APM in 2006, has presented evidence to
support her assertion that she had experience akin to that of the other APMs who were
promoted to MAPM. Although Chavis' credentials were not "so superior to the
credentials of the [selected MAPMs] that no reasonable person . . . could have chosen
the candidate selected over [her]," Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93,
103 (2d Cir. 2001) (internal quotations omitted), unlike the plaintiff in Byrnie, Chavis
does not rely solely on the alleged discrepancy in qualifications to raise an inference of
discriminatory animus. Rather, she points to instances of allegedly discriminatory
scrutiny and comments by her supervisors -- one of whom, Flowers, was the MAPM
hiring manager -- following her notifying her supervisors about her inability to work on
Sundays due to religious observance. She also cites Walmart's failure to interview her
for all but one of the positions to which she applied after she disclosed her observance
of the Sabbath. Taken together, a reasonable jury could infer from this evidence that
Chavis was denied the promotions based on her religion and any non-discriminatory
reason offered by Walmart is pretextual.
Because there exist genuine issues of material fact regarding Walmart's
motivation for denying Chavis the MAPM promotions filled by other APMs,
defendants' motion for summary judgment is denied as to the claims based on the
Flanders and Hartford MAPM positions and granted as to the claims based on the other
Based on the instant record, there is a genuine dispute as to whether
Chavis was similarly situated to the candidate chosen for the ASM position at the
Suffern store. Walmart argues that the successful candidate was more qualified than
Chavis because he previously held the ASM position at a different store. Defs.' Mem. at
18-19. Chavis underwent assistant manager training for her prior job as Photo Lab
Manager, which she argues gave her responsibilities comparable to those of an ASM.
Chavis Dep. at 168, 170-71. A reasonable jury could infer that the combination of
Chavis's work as an APM and her assistant manager training made her equally
qualified to a candidate who was currently an ASM. Furthermore, David Yeagley, the
manager of the Suffern store, told the hiring manager, Brett Purdue that he wanted
Chavis to take on the ASM position, Koppell Decl. Ex. 5 ("Yeagley Dep.") at 65; Purdue
told Yeagley he could not consider Chavis because of her need for an accommodation,
id. at 57, 65-67. Because there is, at minimum, a factual dispute regarding whether
Chavis's "need for an accommodation was a motivating factor in the employer's
decision," summary judgment is denied with respect to the ASM promotion claim.
E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2032 (2015). 5
Even if Chavis could establish a prima facie case for the denial of the comanager promotion, she presents no evidence of animus on the part of Stephanie
Currao, the hiring manager for the co-manager position. Unlike the ASM hiring
manager, Purdue, who directly referenced Chavis's need for a religious accommodation
to explain why she was not interviewed, and the MAPM hiring manager, Flowers, who
allegedly engaged in discriminatory scrutiny of Chavis on the basis of her religion, Ms.
Currao is not alleged to have harbored any animus toward Chavis or even to have
known about her religious beliefs or need for an accommodation. Therefore, Chavis has
not raised a genuine issue of fact regarding Walmart's reasons for denying her the comanager role, and summary judgment is granted on the co-manager promotion claim.
Walmart claims that Chavis's failure to apply for a new accommodation
disqualified her from consideration for the ASM promotion. Assuming that Sunday work is in
fact required for the ASM position and Chavis would need an accommodation, Walmart
provides no company policy or legal precedent requiring an employee -- who has notified her
employer about her religious observance and whose employer has actual knowledge of the
need for an accommodation -- to formally apply for an accommodation before she can be
considered for a position.
To establish a prima facie case of retaliation, a plaintiff must demonstrate
that: 1) she engaged in a protected activity; 2) her employer was aware of this activity;
3) the employer took adverse employment action against her; and 4) a causal connection
exists between the alleged adverse action and the protected activity. Summa v. Hofstra
Univ., 708 F.3d 115, 125 (2d Cir. 2013).
Once a plaintiff establishes a prima facie case of retaliation, the burden
shifts to the defendant to "articulat[e] a legitimate, non-retaliatory reason for the
adverse employment action." Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 70 (2d Cir.
2015) (citation omitted). "If the defendant provides such an explanation, 'the
presumption of retaliation dissipates,' and the plaintiff must prove 'that the desire to
retaliate was the but-for cause of the challenged employment action.'" Id. (first quoting
Jute v. Hamilton Sundstrand, Corp., 420 F.3d 166, 173 (2d Cir. 2005), and then quoting
Univ. of Tex. Sw. Med. Ctr. v. Nassar, --- U.S. ---, 133 S.Ct. 2517, 2528 (2013).
Defendants contend that Chavis's retaliation claim fails because (1) she
did not engage in protected activity earlier than her filing of an EEOC complaint in late
2014, (2) none of the alleged conduct constitutes an adverse employment action, and
(3) she has not demonstrated that Walmart's desire to retaliate was the but-for cause of
any adverse employment action. These arguments are unpersuasive, and summary
judgment is denied as to Chavis's retaliation claim.
First, at oral argument, defendants argued that Chavis's request for a
religious accommodation did not constitute protected activity under Title VII. "Title
VII's anti-retaliation provision prohibits employers from "discriminat[ing] against any
individual . . . because [s]he has opposed any practice made an unlawful employment
practice by this subchapter." Cooper v. N.Y. State Dep't of Labor, 819 F.3d 678, 680 (2d Cir.
2016) (quoting 42 U.S.C. § 2000e–3(a)). "The term 'oppose,' being left undefined by the
statute, carries its ordinary meaning: '[t]o resist or antagonize . . .; to contend against; to
confront; resist; withstand.'" Crawford v. Metro. Gov't of Nashville & Davidson Cty., Tenn.,
555 U.S. 271, 276 (2009) (quoting Webster's New International Dictionary 1710 (2d ed.
Regardless of whether Chavis's initial request for a religious
accommodation constituted protected activity, I conclude that her appeal to the Open
Door hotline after Walmart did not initially grant her an accommodation was protected
activity for purposes of her retaliation claim. 6 After Walmart employees including
Courts in this District have held that a request for a religious accommodation
itself constitutes protected activity for purposes of a Title VII retaliation claim, citing the rule in
this Circuit that requests for disability accommodations are protected activity under the
Americans with Disabilities Act. See Jeffrey v. Montefiore Med. Ctr., No. 11 CIV. 6400 RA, 2013
WL 5434635, at *23 (S.D.N.Y. Sept. 27, 2013); Jenkins v. N.Y. City Transit Auth., 646 F. Supp. 2d
464, 473 (S.D.N.Y. 2009); but see Equal Emp. Opportunity Comm'n v. N. Mem'l Health Care, No. CV
15-3675(DSD/KMM), 2017 WL 2880836, at *5 (D. Minn. July 6, 2017) (holding that a request for a
Diana Jackson, then a MAPM, Jackie Jenask, from Labor Relations, and Tony Ristuccia,
the Regional Asset Protection Manager, refused to grant Chavis an accommodation to
not work on Sundays, Chavis asked Ristuccia what her next step was. On his advice,
she then called the Open Door hotline, which resulted in her accommodation request
being granted. This process was functionally no different than if Chavis had formally
appealed the denial of her request to Human Resources; she sought redress from an
authority higher than her supervisors. A jury could infer from the record that Chavis's
complaint to the Open Door hotline was based on a reasonable, good faith belief that
that Walmart was violating Title VII by failing to grant her a religious accommodation
from Sunday work. Cooper, 819 F.3d at 680-81 ("A plaintiff seeking to demonstrate that
[s]he engaged in protected activity need not show that the behavior he opposed in
fact violated Title VII; [s]he must, however, show that [s]he possessed a good faith,
reasonable belief that the employer's conduct qualified as an unlawful employment
practice under the statute." (internal citations and quotation marks omitted)); see also
Baker, 445 F.3d at 546 ("It is an unlawful employment practice . . . for an employer not to
make reasonable accommodations, short of undue hardship, for the religious practices
of his employees and prospective employees." (citation and internal quotation marks
religious accommodation is not protected activity under Title VII). The EEOC has also taken the
position that requests for religious accommodations are protected activity. See EEOC Compl.
Man. § 12-V.B (2008), https://www.eeoc.gov/policy/docs/religion.html. Nevertheless, because I
hold that Chavis's call to the Open Door hotline constitutes protected activity, I do not reach the
question of whether her initial request for an accommodation also did.
omitted)). Therefore, a reasonable jury could find that Chavis engaged in protected
Second, defendants contend that none of the allegedly retaliatory conduct
cited by Chavis constitutes an adverse employment action. "Title VII's antiretaliation provision applies broadly to 'employer actions that would have been
materially adverse to a reasonable employee or job applicant.'" Hicks v. Baines, 593 F.3d
159, 165 (2d Cir. 2010) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57
(2006)). An action is materially adverse if it is "harmful to the point that [it] could well
dissuade a reasonable worker from making or supporting a charge of
Chavis has raised several possible adverse employment actions that
should proceed to trial. At minimum, "discriminatory failure to promote falls within
the core activities encompassed by the term 'adverse actions.'" Treglia v. Town of
Manlius, 313 F.3d 713, 720 (2d Cir. 2002). As discussed in detail above, Chavis claims
that she submitted applications to and was not hired for seventeen positions, sixteen of
them without so much as an interview.
That Chavis cannot establish a prima facie promotion claim as to each of
the seventeen applications does not preclude her retaliation claim. A finding of
unlawful retaliation generally does not depend on the merits of the underlying
discrimination complaint. See Davis v. State Univ. of New York, 802 F.2d 638, 642 (2d Cir.
1986). Although Chavis did not provide evidence from which a jury could infer that
many of Walmart's promotion denials were motivated by discriminatory animus, she
has raised a genuine issue of fact regarding whether at least some of the denials were
motivated by retaliatory animus after she contacted the Open Door hotline. See Heredia
v. Small, No. 98-cv-5351 (RLE), 2006 WL 47667, at *6 (S.D.N.Y. Jan. 9, 2006) (finding that
alleged adverse actions following plaintiff's protected activity, "[e]ven if not
individually actionable . . . provide background for the [retaliation] claims asserted"); cf.
White, 548 U.S. at 63 ("The substantive [discrimination] provision seeks to prevent injury
to individuals based on who they are, i.e.,their status[ ] . . . [t]he antiretaliation provision
seeks to prevent harm to individuals based on what they do, i.e., their conduct."). The
evidence discussed below -- including the number of applications, Chavis's long history
at Walmart, and the fact that Yeagley recommended her for a managerial position -- as
well as the temporal proximity of the denials to her protected activity are sufficient for a
jury to infer a causal connection at least as to some of the positions in question. See
Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013) ("[E]ven without direct
evidence of causation, a plaintiff can indirectly establish a causal connection to support
a . . . retaliation claim by showing that the protected activity was closely followed in
time by the adverse [employment] action. . . . [T]he but-for causation standard does not
alter the plaintiff's ability to demonstrate causation at the prima facie stage on summary
judgment . . . indirectly through temporal proximity.").
Furthermore, I am unable to conclude as a matter of law that the alleged
surveillance and scrutiny by Flowers could not also constitute an adverse employment
action for Chavis's retaliation claim. Increased surveillance may constitute adverse
employment action for the purposes of retaliation claims. See Bind v. City of N.Y., No.
08-cv-11105 (RJH), 2011 WL 4542897, at *18 (S.D.N.Y. Sept. 30, 2011) (noting that a
reasonable employee might be dissuaded from raising a grievance in the face of
surveillance outside the workplace by an employer); Mendez v. Starwood Hotels & Resorts
Worldwide, Inc., 746 F. Supp. 2d 575, 596-97 (S.D.N.Y. 2010) (rejecting defendant's
contention that the installation of a hidden surveillance camera to observe an employee
who had complained of discrimination "can never be retaliatory as a matter of law"). A
reasonable jury could infer that Chavis would be dissuaded from grieving the denial of
an accommodation going forward based on supervisors repeatedly reviewing video
footage of Chavis's arrival, departure, and time at work, see Chavis Dep. at 128-37;
Savage Dep. at 58-59, 64; Koppell Decl. Ex. 6 ("Flowers Dep.") at 101, 114-15, and
checking the trash cans in the APM office, see Chavis Dep. at 323-24; Flowers Dep. at
108-14. Accordingly, Chavis has satisfied her burden of showing that genuine issues of
fact exist as to whether adverse employment actions were taken against her. 7
As discussed above, Walmart has articulated non-retaliatory motives for
hiring candidates other than Chavis for each of the promotions at issue, specifically that
Chavis has satisfied her burden as to the remaining element at the prima facie
stage as Walmart does not dispute that it was aware of her request for an accommodation.
the other candidates had more experience or outperformed Chavis in areas relevant to
the job qualifications. Nonetheless, Chavis has offered evidence from which a jury
could infer that, with respect to at least some of the positions, "the unlawful retaliation
would not have occurred in the absence of the alleged wrongful action or actions of the
employer." Nassar, 133 S.Ct. at 2533.
Specifically, Chavis points to several statements by her supervisors, noted
above in the context of her failure-to-promote claims, from which a jury could infer that
her accommodation request was a but-for cause of at least some of the promotion
denials. Flowers allegedly termed Chavis the "fuel that feeds the fire" and told Yeagley
that he wanted her out of the store. See Chavis Dep. at 121, 258; Asaad Decl. Ex. F
("O'Gara Dep.") at 38-39. The meaning of Flowers's statement is far from clear, but a
reasonable jury could infer that it betrayed displeasure with Chavis's requests for
special treatment. Additionally, when the office received a new dress code, Savage
allegedly remarked that she would have to see about making an exception for Chavis,
who, in accordance with her religious beliefs, only wore skirts. See Chavis Dep. at 324;
O'Gara Dep. at 42.
Most significantly, prior to her request for an accommodation, Chavis had
worked at Walmart for nearly 20 years and been promoted successfully numerous times
-- from direct store delivery receiver, to invoice clerk, to photo assistant manager, to
claims associate, and finally to APM. See Pl.'s 56.1 Stmt. ¶ 1. After Chavis's request for
an accommodation, however, she applied seventeen times for promotions and was
denied -- all but one time without an interview. Based on the statements and conduct of
Chavis's supervisors and the temporal proximity of the applications and
accommodation request, a reasonable jury could infer that Walmart's explanations for
its decisions not to hire Chavis were pretextual and that the accommodation request
was a but-for cause of at least some of the denials. Viewing the evidence in the light
most favorable to Chavis, she has provided sufficient evidence to defeat summary
judgment as to her retaliation claim.
Accordingly, defendants' motion for summary judgment is denied as to
Chavis's retaliation claim and promotion claims based on Walmart's failure to promote
her to the Flanders MAPM, Hartford MAPM, and Suffern ASM positions. Defendants'
motion is granted as to Chavis's failure to accommodate claim, hostile work
environment claim, and promotion claims based on Walmart's failure to promote her to
the market supply positions, the Kingston co-manager position, and the Valley Stream,
Mohegan Lake, Watchung, and New Haven MAPM positions.
A scheduling order will issue simultaneously setting a date for trial and
New York, New York
July 18, 2017
United States Circuit Judge
Sitting by Designation
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