Miller v. Port Auth. of N.Y. & N.J.
| Decision Date | 13 November 2018 |
| Docket Number | No. 15-cv-6370 (KM)(MAH),15-cv-6370 (KM)(MAH) |
| Citation | 351 F.Supp.3d 762 |
| Parties | Gary MILLER, Plaintiff, v. The PORT AUTHORITY OF NEW YORK & NEW JERSEY, Defendant. |
| Court | U.S. District Court — District of New Jersey |
David Zatuchni, Zatuchni & Associates, LLC, Lambertville, NJ, for Plaintiff.
Cheryl Nancy Alterman, David Robert Kromm, The Port Authority of New York & New Jersey, New York, NY, for Defendant.
This matter comes before the Court on the motion of the defendant, The Port Authority of New York and New Jersey ("Port Authority"), for summary judgment. (DE 63). The motion will be granted.
The plaintiff, Gary Miller, worked for Port Authority at Newark Liberty International Airport ("EWR") for less than three months, from January 2, 2015 until his termination on March 21, 2015. After his termination, Miller sued Port Authority, claiming religious discrimination and failure to accommodate his religious beliefs, in violation of Title VII of the Civil Rights Act of 1964.
Miller observes the Jewish Sabbath, a belief which prohibits him from working from sunset on Friday to sunset on Saturday. There were times when his position at Port Authority required that he work Friday evenings and Saturdays, as part of a neutral rotational schedule. A few days after starting his new position, on January 5, 2015, Miller requested that he not be required to work shifts that conflicted with the Sabbath and Jewish holidays.
Miller claims that his request for an accommodation was rejected. He does not recall, however, whether anyone from Port Authority ever spoke to him about his options to use various forms of leave on days of religious obligation. In contrast, Port Authority has proffered competent evidence that it offered Miller the option to swap shifts with other employees, and told him that he could use vacation, personal excused time, or compensatory time. Miller did in fact use personal excused time for religious purposes on seven occasions from January through February of 2015.
In March of 2015, Miller submitted three separate requests for unpaid leave, which were rejected. By that time, he had exhausted his personal excused time. When he failed to report to work, he was marked absent without excuse. He was subsequently terminated.
Miller contends that Port Authority's accommodation was not reasonable. He offers that Port Authority could simply have altered its rotational schedule and not scheduled Miller on Friday evenings or Saturdays. He further contends that his shift could have been "back-filled" in the same manner as is done for employee absences.
The employees in Miller's unit are unionized, and as a result, Port Authority is bound by a collective bargaining agreement. Creating a permanent shift schedule for Miller exempting him from work on the Sabbath or the Jewish holidays, without first offering that option to more senior employees, would have violated the agreement's seniority provision. It also would have violated the past-practices provision of the agreement, which requires that the established rotational schedule be maintained. In short, Miller's preferred accommodation would have placed Port Authority in violation of its collective bargaining agreement and required other, more senior employees to work less desirable additional Friday evening and Saturday shifts.
On this record, the religious accommodation offered by Port Authority was reasonable. And because the blanket exemption proposed by Miller would have imposed more than a de minimis hardship, the employer was not required to accept it.
As required at this stage, the Court resolves all disputes of fact and draws all inferences in favor of Miller. Unless otherwise indicated, the facts recited below are undisputed for purposes of Fed. R. Civ. P. 56.
On January 2, 2015, Port Authority hired Miller as a Utility Systems Maintainer ("USM") at EWR. (DSMF ¶ 5; PRS ¶ 5). EWR has a Mechanical Maintenance Unit, "Unit 329," that is responsible for the operation, maintenance, and repair of utility systems and related auxiliary equipment. (DSMF ¶ 9; PRS.¶ 9). Unit 329 also responds to emergency situations at the airport, including plane crashes, pipe ruptures, water main breaks, or weather-related conditions. (DSMF ¶ 10; PRS ¶ 10).
The Manager of Airport Maintenance was Sarah McKeon. (DSMF ¶ 14; PRS ¶ 14). Albert Kosakowski, who reported to McKeon, was the Chief Maintenance Supervisor during the relevant time period, and was responsible for the daily management of Unit 329. (DSMF ¶ 11; PRS ¶ 11). Kosakowski had five supervisors who reported to him, including Maintenance Unit Supervisor William Lynch. Lynch was Miller's direct supervisor. (DSMF ¶ 12; PRS ¶ 12).
Unit 329 has fourteen allotted USM positions. (DSMF ¶ 15; PRS ¶ 15). Those fourteen USM positions provide essential coverage twenty-four hours per day, seven days a week, 365 days a year. (DSMF ¶¶ 16, 50; PRS ¶¶ 16, 50).
The USMs in this unit are members of a union, the International Union of Operating Engineers, and are subject to a collective bargaining agreement. (DE 63-13 (Memorandum of Agreement ("MOA") between The Port Authority of New York and New Jersey and International Union of Operating Engineers, AFL-CIO Local 15, Local 30, and Local 68 (effective Mar. 4, 2002-Oct. 3, 2006) ); See DSMF ¶ 27; PRS ¶ 27).
The MOA incorporates by reference Information Bulletin No. 38, "Seniority." (DSMF ¶ 38; PRS ¶ 38; DE 63-19). Four of the fourteen USM positions are designated as "regular day tours," which are offered to the USMs with the most seniority. (DSMF ¶ 15; PRS ¶ 15). The regular day tour is a set shift from Mondays through Friday, 7 AM to 3 PM. (DSMF. ¶ 15).
The remaining ten positions are assigned to a rotating shift schedule. (DSMF ¶ 16; PRS ¶ 16). Pursuant to the schedule, for a particular day an employee is assigned to the A shift (11 PM to 7 AM), B shift (7 AM to 3 PM), C shift (3 PM to 11 PM), or the R (relief) shift.
The rotating schedule repeats itself every thirty-five days. (DSMF ¶ 17; PRS ¶ 17). That rotational thirty-five-day cycle is as follows:
Two USMs are assigned to each A, B, and C shift – one to the central heating and refrigeration plant, and the other to the field. (DSMF ¶¶ 18, 20; PRS ¶ 18).
During a two-week period, each USM is scheduled to work no more than eighty hours, and is entitled to four regular days off (RDOs). (DSMF ¶ 36; PRS ¶ 36). USMs work not fewer than four but not more than seven consecutive days. (Id. ). Those consecutive days must be on the same shift (A, B, or C). (Id. ). The ten rotating USMs have approximately the same number of Fridays and Saturdays off during a given calendar year. Each USM is entitled to two Fridays and two Saturdays off as RDOs during each thirty-five-day cycle. (DSMF ¶¶ 26, 103; PRS ¶¶ 26, 103).2
Work schedules are posted thirty days in advance. Any change that occurs less than thirty days in advance requires payment of a "shift-change premium," which amounts to a standard half-day's pay in addition to normal salary. (DSMF ¶ 36; PRS ¶ 36). A USM is entitled to time-and-a-half if he or she is required to work additional time over the normal schedule (or over forty hours per week). (Id. ).
If a USM assigned to an A, B, or C shift calls out or is absent from work Monday through Thursday, then a Relief Shift USM is reassigned to cover that absence. (DSMF ¶¶ 22-23; PRS ¶¶ 22-23). For such a routine substitution, the employer does not have to pay a shift-change premium. (DSMF ¶ 41; PRS ¶ 41).
In the event that an R Shift employee is not scheduled, and thus cannot cover an employee absence, or there is a shift vacancy (as opposed to a one-time absence), an overtime equalization roster is used to determine which USM will cover the shift. (DSMF ¶ 29; PRS ¶ 29). The shift vacancy is assigned to the USM with the least amount of overtime who volunteers and is available. (Id. ). In the event that no one volunteers, then the USM who has the least amount of overtime hours is required to work. (Id. ).
Miller does not deny that this rotating schedule is in place. (PRS ¶ 17). He disputes, however, that the MOA confines the use of an R Shift substitute to the period Monday—Thursday. Rather, he contends that an R Shift USM could be scheduled Friday through Sunday as well. (PRS ¶¶ 21-22). He is correct that the MOA does not explicitly confine R Shift substitutions to the Monday–Thursday period. (See generally DE 63-13). The MOA requires, however, that past practices be maintained, and Port Authority states that these work schedules are considered to be bargained-for "past practices." (DSMF ¶¶ 32-34). Because R Shift substitutions have long been scheduled for Monday through Thursday only, that regime is preserved and protected by the MOA. Miller does not offer any evidence in opposition to the employer's past-practices evidence. Miller points out that workers call out3 sick, which results in schedule modifications, and that Port Authority does not use computer software to make a schedule in the first instance. (PRS ¶ 34, PSMF ¶¶ 69-72). These contentions are not on point; they do not create a dispute as to the fact that the structure of the schedule, and its lines, are past practices that are protected by the collective bargaining agreement with the union.
Port Authority offers evidence that any change to the current structure of the schedule would...
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