SUSAN RUSS WALKER, United States Magistrate Chief Judge.
Plaintiff Willie J. Kilpatrick brings this employment discrimination action against his former employer, Hyundai Motor Manufacturing Alabama, LLC ("HMMA"), alleging that HMMA discriminated against him in violation of Title VII of the Civil Rights Act of 1964 by (1) failing to reasonably accommodate his sincerely held religious beliefs, which preclude work on the Sabbath; and (2) terminating his employment. (Doc. # 1). This action is presently before the court on HMMA's motion for
Defendant HMMA manufactures automobiles at its facility in Montgomery. (Rose dec., ¶ 3). Plaintiff worked for HMMA from April 15, 2005, until September 3, 2009, as a "team member" in the predelivery inspection ("PDI") department, through which all automobiles pass for alignment, testing, inspection and any necessary repair before leaving the manufacturing facility. For the two years preceding his termination, plaintiff performed glass and leak repair on front and back windshields. (Kilpatrick depo., pp. 59-70 and Exhibit 8; Davis depo., pp. 15-18). When plaintiff first began working in glass repair, he was one of two employees with the primary job of glass repair. He and the other employee, Reggie Williams, then each trained an additional three or four people "primarily for the job" in plaintiff's and Williams' area. (Kilpatrick depo., pp. 73-74).
Shortly before July 2008, plaintiff began attending the Montgomery First Seventh-day Adventist Church. Before that time, he had no problem with working on the Sabbath, which lasts from sunset on Friday to sunset on Saturday. (Kilpatrick depo., pp. 92-95). From October 2008 until July 2009, HMMA limited its production schedule to three or four days each week due to poor economic conditions and reduced customer demand; it did not run on Fridays. In July 2009, HMMA began running production at full schedule, including work on Fridays and some Saturdays. (Id., pp. 82-83; Rose dec., ¶ 6). At that time, Hyundai operated two shifts — the "Sonata" shift and the "Santa Fe" shift. The "Sonata" and "Santa Fe" rotated approximately every three months between the night shift (beginning at 6:15 p.m.) and the day shift. (Davis depo., pp. 12-14). By July 2009, plaintiff believed that he could no longer work on the Sabbath. On Wednesday, July 15, 2009, plaintiff gave a letter to Scott Wellington requesting to have the Sabbath day off. (Kilpatrick depo., pp. 94-99).
(Exhibit 11 to Kilpatrick depo.)(italics in original). Plaintiff informed his supervisor that he would not be at work on Friday, July 17, 2009, because of his religious beliefs. He requested leave, but that leave was denied because of a more senior leave request. (Kilpatrick depo., pp. 86-88). On July 29, 2009, plaintiff met with Wendy Warner (the "Employment Manager" in HMMA's human resources department) and several other people from human resources. (Id., pp. 98-103; Rose depo., pp. 10-12). Warner told plaintiff that he was free to apply for any jobs at HMMA that did not conflict with plaintiff's religious beliefs and, also, that he could request leave or use "personal" time to cover his absences. (Kilpatrick depo., pp. 101-02). Warner presented plaintiff with a two-page written response to his accommodation request. (Id., pp. 100-01 and Exhibit 12). In the letter, Warner stated, inter alia, that allowing plaintiff to miss work on Friday evenings would require locating another team member to perform plaintiff's job and would adversely affect other team members. Warner added:
(Exhibit 12 to Kilpatrick depo.). Warner advised plaintiff to contact Delecia McIntyre about open positions. (Id.). However, HMMA has very few "daytime-only jobs." (Lashley depo., pp. 61-62, 68-69).
Plaintiff left voicemail messages for McIntyre, but she did not return his calls until his last week of work. At that time, she told him that there were no jobs available. Plaintiff also checked the "job board" for available positions. He saw no jobs for which he was qualified and, therefore, did not apply for any of the posted vacancies. (Kilpatrick depo., pp. 103-04). Plaintiff was absent from Friday night shifts throughout August 2009, without approval, and was disciplined under HMMA's attendance policy with an informal discussion, a formal discussion, and a "commitment" discussion. On September 3, 2009, an HMMA management committee met to consider plaintiff's record and the appropriate
A party seeking summary judgment bears the initial burden of demonstrating to the court the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions that it believes show an absence of any genuine issue of material fact. Hairston v. Gainesville Publishing Co., 9 F.3d 913 (11th Cir.1993).
For summary judgment purposes, an issue of fact is "material" if it is a legal element of the claim, as identified by the substantive law governing the case, such that its presence or absence might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party. Matsushita Electric Industrial Company v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court must view the evidence, and all factual inferences properly drawn from the evidence, in the light most favorable to the nonmoving party. Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir.1992); Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 (11th Cir.1987). It is improper for this court to weigh conflicting evidence or make credibility determinations; instead, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Where a reasonable fact finder may "draw more than one inference from the facts, and that inference creates a genuine issue of material fact, then the court should refuse to grant summary judgment." Barfield v. Brierton, 883 F.2d 923, 933-34 (11th Cir. 1989) (citation omitted).
Where the moving party will bear the burden of proof at trial,
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993) (quoting United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir.1991)(en banc)).
Plaintiff asserts two claims of religious discrimination in violation of Title VII — one alleging failure to accommodate and the other alleging discriminatory termination on the basis of his religion. HMMA moves for summary judgment on both claims.
To establish a prima facie case of failure-to-accommodate religious discrimination, a plaintiff must establish that he held a bona fide religious belief that conflicted with a job requirement, that he informed his employer of his belief, and that the employer terminated his employment for his failure to comply with the conflicting job requirement. Morrissette-Brown v. Mobile Infirmary Medical Center, 506 F.3d 1317, 1321 (11th Cir.2007). If the plaintiff establishes a prima facie case,
In Morrissette-Brown, the Eleventh Circuit noted that since Title VII does not define the phrase "reasonably accommodate" expressly, "`the precise reach of the employer's obligation to its employee is unclear under the statute and must be determined on a case-by-case basis.'" 506 F.3d at 1321-22 (quoting Beadle, 29 F.3d at 592). The court observed, "[n]evertheless, the Supreme Court has explained that a reasonable accommodation is one that `eliminates the conflict between employment requirements and religious practices.'" Morrissette-Brown, 506 F.3d at 1322 (citing Philbrook, 479 U.S. at 67-69, 107 S.Ct. 367 (1986)). HMMA contends that it reasonably accommodated Kilpatrick's religious beliefs by: (1) encouraging him to apply for any open positions that would not require him to work on his Sabbath; and (2) affording him "the opportunity to use his vacation/personal days, if available under the production schedule, to cover his Friday absences." (Doc. # 20, pp. 26-27).
As noted above, HMMA has very few daytime-only positions. (Lashley depo., pp. 61-62, 68-69). Plaintiff testified that he checked the job board for openings but saw no openings for which he was qualified. He further testified that he tried to contact McIntyre "a lot of times" and that, although he left messages, she did not call him back until "[r]ight before [he] was terminated." When she did return his call, she told him that there were no jobs available. (Kilpatrick depo., pp. 103-05). Charlie Davis, plaintiff's group leader, testified that he could allow two people from plaintiff's "paint repair" team of approximately thirty employees to take leave on the same day, that priority for leave is determined by seniority and by the date on which the request for leave is submitted, and that he posted approved leave at the end of the shift on a leave calendar on the main board in the team area. (Davis depo., pp. 10-11, 42-48). HMMA grants three "personal" days each calendar year that an employee may schedule either ahead (if the day is available on the leave calendar) or by "call-in" on the day the employee will be absent from work. Plaintiff had used his three personal days for 2009 in April, May and June — before HMMA resumed a full production schedule in July. (Davis depo., pp. 46-48, 54-59 and Exhibit 4 to Davis depo. (Doc. # 27-7)). Plaintiff testified that the vacation days he requested to observe the Sabbath were "taken." (Kilpatrick depo., p. 102).
HMMA contends that "job posting referral is a reasonable accommodation," citing Walden v. Centers for Disease Control and Prevention, 669 F.3d 1277 (11th Cir. 2012). (Doc. # 20, p. 26). Defendant argues that "[t]he Walden court found that the employer met its reasonable accommodation obligation when it, among other things, `encouraged its employee to seek another position in the company and provided assistance in that search.'" Id. (citing
Defendant cites Beadle v. Hillsborough County Sheriff's Department, 29 F.3d 589 (11th Cir.1994) in support of its contention that permitting use of vacation and personal days is a reasonable accommodation. (Doc. # 20, p. 27). Defendant notes that, in Beadle, "the Eleventh Circuit acknowledged the employer's sufficient reasonable accommodation efforts where it, among other things, allowed the employee to request use of vacation, sick time and compensation time if he was unable to secure a shift swap." (Id.) (citing Beadle, 29 F.3d at 591). The employer in Beadle used a neutral rotating shift system but allowed the plaintiff to arrange shift swaps with co-workers. To assist the plaintiff in doing so, the employer provided him with a roster which included all of his co-worker's schedules, and also allowed him to advertise his need for shift swaps on the employer's bulletin board and during daily roll calls. 29 F.3d at 593.
In the present case, viewing the evidence in the light most favorable to the nonmovant: (1) plaintiff was terminated for excessive absenteeism upon accruing the absences required under HMMA's attendance policy to render him subject to termination, even though the policy permits consideration of the particular circumstances in determining whether to impose corrective action (see Kilpatrick depo. at pp. 100-16 and Exhibit 6 (pp. 7-10), Exhibit 13 (8/10/09 "informal discussion"), Exhibit 14 (8/18/09 "formal discussion"), Exhibit 15 (8/25/09 "commitment discussion") and Exhibit 16 (9/3/09 termination letter); (2) HMMA encouraged plaintiff to contact Delecia McIntyre for assistance in finding another position that would not conflict with his Sabbath observance, but HMMA has "very few" such positions (Exhibit 12 to Kilpatrick depo.; Lashley depo., pp. 61-62, 68-69); and (3) McIntyre did not return plaintiff's calls until his final week of work, right before he was terminated (Kilpatrick depo., pp. 101-04, 109, 121) and after he was already subject to termination for his August 28, 2009 absences.
As noted above, the employer bears the burden of proving that it "is unable to reasonably accommodate [the] employee's... religious observance or practice without undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j). Thus, on the present motion, HMMA must present evidence affirmatively establishing that reasonable accommodation would have caused HMMA undue hardship. See Fitzpatrick, 2 F.3d at 1115. "The Supreme Court has ... generally defin[ed] "undue hardship" as any act that would require an employer to bear greater than a `de minimis cost' in accommodating an employee's religious beliefs." Beadle, 29 F.3d at 592 (citing Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 75, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977)). In arguing that the evidence establishes undue hardship, HMMA first points to Warner's July 29, 2012, response to the plaintiff's accommodation request, arguing that Warner's response "identified numerous legitimate operations issues which fully explained why Kilpatrick's request to be absent on Friday evenings and Saturdays would cause an undue hardship on HMMA." (Doc. # 20 at pp. 29-30)(citing Exhibit 12 to Kilpatrick depo.). As plaintiff contends, however, Warner's letter does not constitute competent proof that the operations issues she identifies in the letter exist in fact. (See Doc. # 28, pp. 10-11).
HMMA next argues that plaintiff admitted in his deposition "that he held a specialized skill position and was only one (1) of two (2) individuals who regularly performed glass repair on his shift" and that "his level of training far exceeded those of others in his department." (Doc. # 30, p. 30)(citing plaintiff's deposition at pp. 73-74, 142-43). The cited testimony is not precisely as HMMA argues. Plaintiff testified that "it started out being [plaintiff's and Reggie Williams'] primary job and them we had to train some people. And I believe I trained probably three or four people and Reggie probably trained three or four people." (Kilpatrick depo., pp. 73-74). He further testified, "Those are the people we trained primarily for the job that was in our area and occasionally they would send people down from other areas off the line to help us." (Id.) He testified that the latter employees had not been "specifically trained in glass and leak repair" and that they were working under the direction of plaintiff or Williams. (Id.). Plaintiff answered affirmatively to the question of whether his "particular job in — within PDI was a specialized job" and, also, to the question, "And there were only a handful of people within the department who had the level of training that you did to do glass and leak repair?" (Id. at pp. 142-43). Contrary to HMMA's argument, assistant manager Prestridge testified that, during the relevant time period, there were four to six employees working in glass repair on each shift. These employees
HMMA further contends that it constitutes an undue hardship as a matter of law to have to cover plaintiff's absence with a less-skilled operator, as HMMA would be required to do since no "floater" in PDI had the specific skills to fill in at glass repair. HMMA cites Berry, supra, for its finding of undue hardship where the employer would have to substitute an "assistant operator" for an "operator." (Doc. # 30, p. 30)(citing Prestridge depo. at p. 41 and Davis depo. at p. 28). However, the question of undue hardship is fact specific. The Berry court was not faced with the question of whether it constitutes an undue hardship to substitute a less-skilled but qualified employee for Berry. Instead, the employer had a policy allowing employees to "`swap with another person, as long as that person held the same position that they did. They could not swap with someone of a lesser position. The reason for that being is because the person in the lower position would not be qualified[.]'" Berry, 2011 WL 867218 at *7 (quoting testimony). Assistant operators were permitted to fill in for operators only in emergency circumstances. (Id.). The Berry court cited evidence that "assistant operators are not really qualified to be gluing operators" on the plaintiff's line and the testimony of the particular assistant operator proposed by plaintiff for a swap that "he had to get additional training before he could become an operator, and that, in the few situations where he had filled in for an operator in the past, he had some trouble doing the job." Id. at *6. The court reasoned, "When an employer is required to replace a trained worker with an untrained one, and the employer presents evidence that this replacement will cause inefficiencies and product quality problems, that is more than a de minimis cost." Id. at *7 (emphasis added); see also id. at n. 8 ("[I]t is not a mere `hypothetical hardship' to require an employer to replace a qualified worker with an unqualified one on a regular basis, when the employer presents testimony of how and why this will harm the employer's business.")(emphasis added). In the present case, there is evidence that plaintiff is one of the most skilled of the employees qualified to perform glass repair. However, the testimony cited by defendant suggests that HMMA would cover an absence in glass repair with other employees who "do a good job." However, HMMA would have another employee who is "very good at that job" "check behind them" and "kind of make sure that glass was right[.]" (Davis depo., pp. 26-28). In his deposition, group leader Davis declined to agree that these employees "would just not do [the job] as well as either Reggie or Willie." (Id.). While Davis and Prestridge testified that the PDI "floater" employee would not be qualified to perform the glass repair job, Davis also testified that the "floater" could, however, fill in on other positions for employees pulled to perform glass repair. (Davis depo., pp. 28-29; Prestridge depo. at p. 41). As this testimony demonstrates, Berry is not on point.
To avoid the conflict with his Sabbath, plaintiff offered to work any other shift on any other day. (Exhibit 11 to Kilpatrick depo.). There is evidence of record that when glass repair was not completed by one shift, it would be completed on the next shift. (Davis depo., pp. 25-26; see also Prestridge depo., p. 49). As noted above, Prestridge testified that there were four to six employees working in glass repair on each shift, and that these employees performed their glass repair work on a "next car in" basis. (Prestridge
In Count II, plaintiff alleges that he "has been discriminated against because of his religion by being terminated in violation of Title VII" and that he was "terminated because of his religious beliefs and practices." (Complaint, ¶¶ 28, 29). Such a claim may rest on either direct or circumstantial evidence. Dixon v. The Hallmark Companies, Inc., 627 F.3d 849, 854 (11th Cir.2010). Plaintiff does not contend that there exists any direct evidence of discrimination; he relies, instead, on circumstantial evidence. (See Plaintiff's brief, Doc. # 28, pp. 48-56). "When Title VII claims are supported by circumstantial evidence, [the court applies] the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)." Dixon v. Palm Beach County Parks and Recreation Dept., 343 Fed.Appx. 500, 501 (11th Cir.2009)(citing Brooks v. County Commission of Jefferson County, 446 F.3d 1160, 1162 (11th Cir.2006)). To establish a prima facie case of discrimination under this framework, plaintiff must establish, inter alia, the existence of a comparator outside his protected class who was treated more favorably. Dixon, 343 Fed.Appx. at 501. HMMA contends that plaintiff cannot establish this element of his prima facie case. Plaintiff agrees that he must show that he was treated differently than a similarly-situated comparator. (Plaintiff's brief, Doc. # 28, pp. 50-52).
(Rose depo., pp. 66-67)(emphasis added). Rose's testimony is, essentially, that HMMA did not count an absence against an unidentified employee when the employee was unable to get out of his or her neighborhood due to downed power lines. Plaintiff argues that the comparator's conduct need not be exactly identical to his, but that "[w]hat is important is that the `
Plaintiff further argues that — while his efforts to work with the company to eliminate the work/Sabbath conflict were "shot down" — "when various employees attempted to eliminate the conflicts between their familial and other secular obligations" they were permitted to do so "by being allowed to swap shifts with other Team Members to alleviate their conflicts." (Plaintiff's brief, Doc. # 28, p. 52)(citing Jackson depo. at pp. 26-28). Plaintiff argues that he "was not given this option, even though it would have eliminated his conflict." (Id.).
It is undisputed that HMMA — during the relevant time period — operated two production shifts (the "Santa Fe" shift and the "Sonata" shift), and that the Sonata and Santa Fe shifts rotated between day and night hours every two to three months. (See Davis depo., pp. 12-14; Lashley depo., pp. 17-18; Kilpatrick depo., pp. 57-58; Prestridge depo., pp. 21-22). In the testimony on which plaintiff relies, Barry Jackson
In view of the evidence of record about the "Santa Fe" and "Sonata" shifts
In a motion to strike (Doc. # 29) filed with its reply brief, defendant moves to strike portions of plaintiff's declaration (Doc. # 27-1). The substance of plaintiff's declaration would not change the court's ruling on the present motion in any way and, accordingly, the court did not consider it. Thus, the court does not reach the merits of defendant's motion to strike and will deny it as moot.
For the foregoing reasons, it is
ORDERED that defendant's motion to strike (Doc. # 29) is DENIED as MOOT.
It is further ORDERED that plaintiff's unopposed motion for leave to file his response in opposition to summary judgment out of time by one day (Doc. # 26) is GRANTED.
It is further ORDERED defendant's motion for summary judgment (Doc. # 19) is GRANTED as to Count II (the disparate treatment/termination claim) and DENIED as to Count I (the failure-to-accommodate claim).
