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RIVERA v. CHOICE COURIER SYSTEMS

United States District Court, S.D. New York


June 24, 2004.

PEDRO ANTONIO RIVERA, Plaintiff,
v.
CHOICE COURIER SYSTEMS, INC., Defendant.

The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge

OPINION

Plaintiff Pedro Rivera brings a claim of religious discrimination against defendant Choice Courier Systems, Inc. Plaintiff brings this action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., New York Executive Law Section 296, and New York City Administrative Code, Title 8, Section 8-107.

  Both plaintiff and defendant have moved for summary judgment pursuant to Fed.R.Civ.P. 56. Both plaintiff's motion and defendant's motion are denied.

  I. BACKGROUND

  A. Facts

  Plaintiff was employed by defendant as a "Time service" courier from mid-May, 2000, to June 20, 2000, when plaintiff was dismissed. Defendant provides messenger services to business customers located throughout the New York metropolitan area and in surrounding states. Def.'s Rule 56.1 Statement ¶ 2. "Time service" couriers provide mail and messenger services at customers' business locations. Id. ¶ 3. "Time service" personnel perform tasks such as answering the telephone and delivering mail between floors, and they are defendant's premier courier employees. Id. ¶ 4. Defendant also employs "street messengers," who pick up and deliver packages and mail on a per-order basis. Id. ¶ 3.

  Defendant requires all courier employees to comply with its standards of conduct and personal appearance for courier employees while at work. Id. ¶ 12. The courier regulations state that, "[a]ll couriers are required to dress neat and in good taste," and that "[c]ouriers are expected to conduct themselves in a professional manner at all times." Yarmark Ex. 7. Frank Rivera, the Manager of Courier Staffing for defendant, has testified that the enforcement of the personal appearance standard is "[v]ery strict." Frank Rivera Dep. at 42. Frank Rivera has described as "crucial" to defendant's business that its messenger employees promote a professional appearance. Id. at 41. There is a specific dress code for time service personnel. Yarmark Dep. at 26. As stated in the list of rules and regulations for time service personnel, "Collared shirt and tie are mandatory for all Time Service Personnel, unless a client specifies differently, in which case you will be expected to dress neat and in good taste." Yarmark Ex. 5. The dress code for street couriers is less stringent than that for "time service" couriers. Frank Rivera Dep. at 26. Anne L. Yarmark ("Yarmark"), Vice President of Human Resources for defendant, has stated that "time service personnel are held to a higher standard because they work offsite at a client facility with little, if any supervision by Choice," and that "it is very important they be reflective in their dress and their demeanor of what Choice is trying to protect itself with [sic] as far as its image and in holding itself out to be the premier service." Yarmark Dep. at 72-73. Street couriers have "[n]o requirement like a uniform," but are "only asked to dress in neat and good taste." Frank Rivera Dep. at 10. Defendant has no written policy prohibiting employees from engaging in religious expression or practice. Def.'s Resp. to Pl.'s Rule 56.1 Statement ¶ 16.

  Plaintiff is an evangelical Christian. Def.'s Rule 56.1 Statement ¶ 17. As part of his evangelizing, plaintiff began attaching lettering to his jackets in 1998. Pl.'s Dep. at 67. Plaintiff wears the message "Jesus is Lord" on a daily basis, but he does not always wear the same "outerwear." Def.'s Rule 56.1 Statement ¶ 39. At various times, plaintiff has worn the message "Jesus is Lord" on an overcoat, a raincoat, a parka, a vest, and a backpack. Id. ¶ 43.

  On or about May 12, 2000, Rivera applied for employment with defendant. Id. ¶ 45. Frank Rivera interviewed plaintiff and hired him as a time service courier. Id. ¶ 46-47. On or about June 16, 2000, plaintiff went to work wearing a vest with two cloth badges sewn into it. Id. ¶ 51. The badge on the front had letters approximately 1½ inches high and the badge on the back had letters approximately 3 inches high. Def.'s Rule 56.1 Statement ¶ 51. Each badge contained the words "Jesus is Lord." Id.

  On or about June 16, 2000, a supervisor in the messenger room of DMB&B, one of defendant's clients, called Tavon Tucker ("Tucker"), who was then the Time Service Coordinator for Choice, and told her that he had a concern about Rivera's vest. Velasquez Aff. ¶ 2, 3. He told her that someone at the customer's location could be offended by that clothing, and asked Tucker to examine it and determine whether it complied with defendant's dress code policy. Id. ¶ 3. Tucker told plaintiff that he could not wear the jacket, and that he should take it off. Pl.'s Dep. at 92, 93 She told plaintiff that her reason was that it "might offend a customer or one of [plaintiff's] co-workers." See Tucker Mem. She told plaintiff that no customers had called about him, but that she wanted to "prevent this call." Id. Plaintiff asked to speak to Tucker's supervisor, Frank Rivera. Pl.'s Dep. at 103.

  Tucker met with plaintiff again on June 20, 2000. She told plaintiff that "because there are customers that don't appreciate some logos or don't believe in Jesus there is a chance that it can cause a problem." Tucker Mem. On June 20, 2000, plaintiff had a conversation with Frank Rivera. Frank Rivera Mem. Frank Rivera has testified that plaintiff "came to my office about 8 o'clock in the morning, and he started saying something along the lines that he felt the time service coordinator was being discriminative to his beliefs. And I asked what exactly happened, and he told me she's telling me I can't express myself what I believe in." Frank Rivera Dep. at 14. Frank Rivera told plaintiff that the message "seemed inappropriate attire for time service." Frank Rivera Mem. He stated to plaintiff that "this was more of a personal expression not one that was reflected by the company, and by wearing it while working for Choice could be interpreted as such by our clients." Id. Frank Rivera noted in a memorandum that plaintiff "insisted that he would continue to wear this no matter what." Id. Plaintiff said that he "need[ed] to have a rock solid bottom line on this where we're going to go from here because I'm not going to change something very important that I practice." Pl.'s Dep. at 105. Rivera "explained to [plaintiff] that a vest with large letters on the back, and letters on the front, were just not part of the dress code." Frank Rivera Mem. Frank Rivera indicated to plaintiff that he had no choice but to "terminate [him] for not adhering to the Time Service dress code." Id. According to Frank Rivera, "[t]he fact he was persistent, and didn't want to compromise in any way, he left me with no choice to terminate him." Frank Rivera Dep. at 30. Frank Rivera has testified that he "tr[ied] to reach a point of compromise" with plaintiff, and that he "asked him is there any way he can express himself in a more suttle [sic] way, and he refused. Kept insisting this is what I want to wear. This is my belief, and you can't tell me how to express myself. That's what I choose to wear." Id. at 22.

  Plaintiff told Frank Rivera that he wanted to speak to someone in a higher position. Id. at 31. Plaintiff subsequently met with Melissa Clewner ("Clewner"). Pl.'s Dep. at 206-08. Clewner was defendant's human resources manager. Def.'s Resp. to Pl.'s Rule 56.1 Statement ¶ 27. Clewner "said something in the sense of we can't allow that. It is against company policy. Some of our clients may be offended . . ." Pl.'s Dep. at 207. In a memorandum concerning the conversation, Clewner wrote that she told plaintiff that it was "company policy that all time service personnel wear a collared shirt and tie to all assignments," and that plaintiff "could not wear his `summer vest' with the patches on it." Clewner Mem. When plaintiff asked whether he could wear the "Jesus plaque" without the vest, Clewner responded that he could not, and "told him that the company prefers that employees keep such religious statements private, and not displayed outwardly," and "explained that as respectful as we are of his personal beliefs, we needed to be equally respectful of our other employees beliefs [sic], our clients, and company policy." Clewner Mem.; Def.'s Resp. to Pl.'s Rule 56.1 Statement ¶ 29. Plaintiff told her that "I couldn't remove [the message] or stop doing or practicing this evangelizing, and that was pretty much it." Pl.'s Dep. at 209. Clewner wrote that plaintiff told her "that he did not agree with what was being told to him," and that she told him that "if he refused to follow the dress policy, then he would have to seek employment elsewhere." Clewner Mem.

  B. Procedural History On or about June 22, 2000, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Def.'s Rule 56.1 Statement ¶ 60. On or about October 19, 2000, EEOC Enforcement Supervisor Electra Yourke ("Yourke") wrote to plaintiff to notify him that the EEOC had "concluded its inquiry' and that the EEOC's "review fails to indicate that a violation has occurred." Wynne Aff. Ex. C. Yourke concluded, among other things, that "[i]n view of the fact that wearing the patch on all occasions is not an essential practice in the exercise of [plaintiff's] religious belief, [defendant] is not obligated to accommodate [plaintiff's] wish to do so at [plaintiff's] discretion." Id. Yourke also advised plaintiff of his right to file a lawsuit within 90 days of receipt of the Notice of Right to Sue. Id. On or about November 27, 2000, plaintiff wrote to EEOC District Director Spencer H. Lewis ("Lewis") to request a reinvestigation. Wynne Aff. Ex. D. In a letter dated December 1, 2000, Lewis informed plaintiff that a review of the investigative file did not "indicate a basis to reconsider the final dismissal issued for [plaintiff's] charge." Id.

  Plaintiff commenced this action on March 13, 2001. He moved for summary judgment, as did defendant, on March 29, 2002. Oral argument on the motions was held on April 22, 2004.

  II. DISCUSSION

  A. Applicable Law

  1. Summary Judgment

  Summary judgment is proper where "[t]he pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact is present if the fact "might affect the outcome of the suit under governing law" and the supporting evidence is "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In evaluating a summary judgment motion, "[t]he judge's function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. at 2510. "In making its determination, a court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party." Sorlucco v. New York City Police Department, 888 F.2d 4, 5 (2d Cir. 1989). That is to say, the deposition testimony, affidavits, and documentary evidence must be viewed in the light most favorable to the plaintiff. Roge v. NYP Holdings, Inc., 257 F.3d 164, 165 (2d Cir. 2001). The burden is on the movant to demonstrate that no genuine issue exists respecting any material fact. See Gallo v. Prudential Residential Servs. Lt'd P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "[I]n moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). Where the initial showing is not made, "summary judgment will be denied, even though the party opposing the motion has submitted no probative evidence to support its position or to establish that there is a genuine issue for trial." U.S. v. Pent-R-Books. Inc., 538 F.2d 519, 529 (2d Cir. 1976). Where the initial showing is made, the nonmoving party must then meet a burden of coming forward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), by "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. at 322, 106 S.Ct. at 2552. Where the nonmoving party bears the ultimate burden of proof at trial, the motion may not be rebutted by restating allegations in the pleadings or statements in the party's own affidavit. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Summary judgment is appropriate when the party opposing the motion relies exclusively on "conclusory allegations or denials." R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984).

  The Second Circuit has directed that trial courts "[b]e especially cautious in deciding whether to grant this drastic provisional remedy in a discrimination case, because the employer's intent is often at issue and careful scrutiny may reveal circumstantial evidence supporting an inference of discrimination." Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999). It has noted that "in a Title VII action, where a defendant's intent and state of mind are placed in issue, summary judgment is ordinarily inappropriate." Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991). The Court has "consistently held where subjective issues regarding a litigant's state of mind, motive, sincerity or conscience are squarely implicated, summary judgment would appear to be inappropriate and a trial indispensable." Patrick v. LeFevre, 745 F.2d 153, 159 (2d Cir. 1984). However, it has also made clear that:

"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. Indeed, the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91 (1985).
2. Religious Discrimination Under Title VII

  Title VII prohibits an employer from discriminating against an employee on the basis of the employee's religion unless the employer "shows that it cannot `reasonably accommodate' the employee's religious needs without `undue hardship on the conduct of the employer's business.'" Philbrook v. Ansonia Bd. of Educ., 757 F.2d 476, 481 (2d Cir. 1985) (quoting 42 U.S.C. § 2000e(j)), aff'd and remanded on other grounds, 479 U.S. 60, 107 S.Ct. 367, 93 L.Ed.2d 305 (1986).*fn1 Title VII defines religion as including "all aspects of religious observance and practice, as well as belief." 42 U.S.C. § 2000e(j). As such, Title VII "protects more than practices specifically mandated by an employee's religion." Reyes v. New York State Office of Children and Family Services, 2003 WL 21709407 at *6 (S.D.N.Y. 2003).

  Courts have established a two-part framework to analyze claims of religious discrimination under Title VII. First, the plaintiff must establish a prima facie case of discrimination by proving 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; [and] (3) he or she was disciplined for failure to comply with the conflicting employment requirement." Philbrook, 757 F.2d at 481. Then, the burden shifts to the employer, who must show that it could not reasonably accommodate the plaintiff without sustaining undue hardship. Id.

  A court's limited role in determining whether a belief is "religious" is the same under Title VII as it is under the Free Exercise Clause of the First Amendment. A court may only engage in an analysis of the sincerity of a plaintiff's religious beliefs, and not the verity of those beliefs. Philbrook, 757 F.2d at 482; see id. at 481 (stating that "it is entirely appropriate, indeed necessary, for a court to engage in analysis of the sincerity — as opposed, of course, to the verity — of someone's religious beliefs in both the free exercise context and the Title VII context."). The inquiry is twofold: "whether the beliefs professed by a [claimant] are sincerely held and whether they are, in his own scheme of things, religious." LeFevre, 745 F.2d at 157 (quoting United States v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965)). The sincerity analysis "seeks to determine an adherent's good faith in the expression of his religious belief." LeFevre, 745 F.2d at 157. The test provides "a rational means of differentiating between those beliefs that are held as a matter of conscience and those that are animated by motives of deception and fraud." Id. The Second Circuit has held that "assessing a claimant's sincerity of belief demands a full exposition of facts and the opportunity for the factfinder to observe the claimant's demeanor during direct and cross-examination." Id. The burden on plaintiff "is not a heavy one." Philbrook, 757 F.2d at 482. Courts "must avoid any test that might turn on `the fact finder's own idea of what a religion should resemble.'" Id. (citation omitted). Courts employ a "subjective definition of religion, which examines an individual's inward attitudes towards a particular belief system." LeFevre, 745 F.2d at 157 (citing Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 713-15, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981)); Int'l Soc'y for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 439 (2d Cir. 1981). In this inquiry, a person's claim "`that his belief is an essential part of a religious faith must be given great weight.'" LeFevre, 745 F.2d at 158 (quoting Seeger, 380 U.S. at 184, 85 S.Ct. 850). "Impulses prompted by dictates of conscience as well as those engendered by divine commands are . . . safeguarded against secular intervention, so long as the claimant conceives of the beliefs as religious in nature." LeFevre, 745 F.2d at 158. A person's "intellectual" concerns, however, are not safeguarded. Barber, 650 F.2d at 440.

  An employer has met its obligation under Title VII when it "demonstrates that it has offered a reasonable accommodation to the employee." Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 69, 93 L.Ed.2d 305, 372 (1986). The 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." Id. The Supreme Court has determined that an accommodation causes "undue hardship" whenever that accommodation results in "more than a de minimis cost" to the employer. Id. at 67, 371 (quoting Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84, 97 S.Ct. 2264, 2276 (1977)).

  3. Religious Discrimination Under State and City Law

  Claims for violations of the state and city statutes are analyzed in light of analogous Title VII case law. See Lenhoff v. Getty, 2000 U.S. Dist. LEXIS 9835 at *9 (S.D.N.Y. 2000).

  B. Application

  Plaintiff contends that summary judgment in his favor is appropriate because he has made out a prima facie case of religious discrimination and defendant failed to engage in a good faith effort to accommodate plaintiff's religious practice, or to establish that permitting plaintiff to display a patch on his clothing that states "Jesus is Lord" would constitute an undue hardship.

  Defendant contends that summary judgment in its favor is appropriate because plaintiff has failed to satisfy the first two elements of a prima facie case of religious discrimination, and that, even if plaintiff had made out a prima facie case, no reasonable trier of fact could find that defendant was able to reasonably accommodate plaintiff's alleged religious observance without undue hardship on the conduct of its business.

  We note at the outset that we decide the instant motions for summary judgment without regard to plaintiff's proffered "transcripts" of conversations between plaintiff and Clewner and between plaintiff and Frank Rivera, which plaintiff claims to have recorded secretly on the day on which he was dismissed. Since they have not been authenticated, they are inadmissible. See Cauble v. Mabon Nugent & Co., 594 F. Supp. 985, 995 (S.D.N.Y. 1984).*fn2 In addition, we disregard plaintiff's Certification dated March 28, 2002, to the extent that it contradicts his prior deposition testimony. See Mack v. United States, 814 F.2d 120, 124 (2d Cir. 1987).

  1. First Element: Bona Fide Religious Belief that Conflicts with an Employment Requirement

  To satisfy the first element of his prima facie case, plaintiff must show that he has "a bona fide religious belief that conflicts with an employment requirement." Philbrook, 757 F.2d at 481. Defendant argues that plaintiff has failed to show a true conflict since plaintiff was motivated by "his personal preference and not a bona fide mandate of his purported religion." Def.'s Mem. in Opp'n to Pl.'s Summ. J. Mot. at 2 (emphasis in original). Plaintiff argues, on the other hand, that "[f]rom my studies and my experience in years serving God, serving the Lord, I realize that I need to express the name of the Lord Jesus to as many people as possible in as many ways as possible and therefore, I personally walk around with the name of the Lord Jesus, which says Jesus is the Lord." Pl.'s Dep. at 21. He states in his certification that "[p]ursuant to my sincerely held religious belief, I am compelled to convey the name of Jesus and the Gospel message that `Jesus is Lord' in my daily attire. As an evangelist, I must consistently broadcasting [sic] the word of salvation or the gospel of the Savior Jesus Christ." Pl.'s Certification ¶ 3.

  Frank Rivera has testified as follows in response to the question whether there was a concern with the message worn by plaintiff:

No. The message could have been blank. For all purposes it could have been blank, and been any color, but just the fact that the vest was [sic] it seemed inappropriate. It wasn't like a suit vest, or a sweater vest, or any type of clothing like that. It was more of a sort of like I don't know what you would wear to go hiking, or fishing, or hunting.
Frank Rivera Dep. at 17; see id. at 18 (Q. Is it your testimony that the fact that it says Jesus Lord has nothing to do with the fact he was spoken to? A. Absolutely. It could have had his name on it. The fact of the matter was the vest itself was inappropriate.)

  On the other hand, plaintiff has offered evidence that Clewner, at least, felt a concern about the message worn by plaintiff. See Clewner Mem. ("I re-iterated to Pedro that it was company policy that all time service personnel wear a collared shirt and tie to all assignments. He could not wear his "summer vest" with patches on it. Mr. Rivera still did not understand what I was trying to tell him because he then asked if he took the vest off, could he wear his Jesus plaque. I told him that the company prefers that employees keep such religious statements private, and not displayed outwardly."

  We note that "religion," as defined, and protected, by Title VII, encompasses "all aspects of religious observance and practice, as well as belief." 42 U.S.C. § 2000e(j). We note that it therefore "protects more than practices specifically mandated by an employee's religion." Reyes v. New York State Office of Children and Family Servs., 2003 WL 21709407 at *6 (S.D.N.Y. 2003). We also note that this Circuit has demonstrated reluctance to rest the granting of a summary judgment motion on the issue of sincerity or otherwise of religious belief. See LeFevre, 745 F.2d at 157; id. at 159 ("This Court has consistently held where subjective issues regarding a litigant's state of mind, motive, sincerity or conscience are squarely implicated, summary judgment would appear to be inappropriate and a trial indispensable."). For these reasons, we find that plaintiff has satisfied this element of his prima facie case.

  2. Second Element: Notice

  To satisfy the second element, a plaintiff must inform the employer of the plaintiff's conflicting religious belief. Philbrook, 757 F.2d at 481. Defendant claims that plaintiff has failed to satisfy this element because he did not "properly and timely inform Choice of his alleged bona fide religious belief at the start of his employment when he was advised of the dress code and would have known of any possible conflict with his purported religious belief." Def.'s Mem. in Opp'n to Pl.'s Summ. J. Mot. at 2. Indeed, defendant claims that "[p]laintiff did not inform Choice of his alleged religious belief or of any conflict between his alleged religious belief and Choice's employment requirements at any time prior to on or about June 16, 2000, when his supervisor, Tavon Tucker, first spoke to Plaintiff about the vest he was wearing on and around that date." Mem. in Supp. of Def.'s Summ. J. Mot. at 9; Def.'s Rule 56.1 Statement ¶ 50. Plaintiff does not dispute the factual content of the latter claim, but "clarifies that prior to that time, plaintiff was not aware that wearing the name of Jesus on his garment was in conflict with any Choice policy." Pl.'s Rule 56.1 Statement in Opp'n to Def.'s Summ. J. Mot. at ¶ 50.

  Plaintiff has stated that from the middle of May 2000 until Tucker spoke to him in June, 2000, no one "at any Choice location, be it a Choice employee or a customer," had said anything to him about his message. Pl.'s Dep. at 190. Plaintiff claims that he "informed his employer of his bona fide religious belief as soon as he knew a conflict existed." Mem. in Opp. to Def.'s Summ. J. Mot. at 6. It is true that his conversation with Frank Rivera seems to have begun with a reference to plaintiff's beliefs. See Frank Rivera Dep. at 14 ("[Plaintiff] came to my office about 8 o'clock in the morning, and he started saying something along the lines that he felt the time service coordinator was being discriminative to his beliefs."). However, plaintiff has stated in his deposition that, when Tucker first spoke to him about the vest, he "didn't really say anything," other than asking "to speak to her supervisor in regards to the subject." Pl.'s Dep. at 103; see id. at 192 (plaintiff said to Tucker "[b]asically nothing, I just asked to speak to Frank [Rivera] and get more information."). Plaintiff added that "with me being under that emotional effect, I didn't want to stand there and go into a debate with her. I wanted to see it at a different level whether it could be ironed out. I already saw it from what she told me, don't wear it. I didn't want to go there with her. I wanted to bypass that, overrule that, overrule her decision. It was very brief." Id. at 192-93.

  Plaintiff has testified that he has worn religious messages every day since 1998. Pl.'s Dep. at 70, and that he knows that on the day on which he applied for a job with defendant he was "wearing and displaying the message." Id. at 170. He was "wearing a message either in jacket, shirt, pin, button, hat or knapsack." Id. at 169. His amended complaint states that he "wore the subject `outerwear' labeled with the words `Jesus is Lord' on the day he was interviewed and hired without objection from CHOICE." Compl. ¶ 17. Frank Rivera has testified that prior to June 20, 2000, he had never noticed, or been informed of, plaintiff's wearing a religious message. Frank Rivera Dep. at 40.

  We note that defendant has no written policy prohibiting employees from engaging in religious expression or practice. Def.'s Resp. to Pl's Rule 56.1 Statement ¶ 16. The regulations to which defendant draws the court's attention, which state that couriers should dress "neat and in good taste," and "conduct themselves in a professional manner at all times," could reasonably be interpreted so as not to preclude patches of the kind worn by defendant. Thus, a reasonable jury could find that plaintiff was unaware that his religious belief was in conflict with an employment requirement until June 16, 2000, and that he informed Frank Rivera of his belief prior to his termination on June 20, 2000.*fn3 For these reasons, we find that plaintiff has satisfied this element of his prima facie case.

  3. Third Element: Discipline for Failure to Comply

  To satisfy the third element, plaintiff must show that he "was disciplined for failure to comply with the conflicting employment requirement." Philbrook, 757 F.2d at 481. The parties do not dispute that plaintiff has satisfied this element of his prima facie case.

  4. Reasonable Accommodation without Undue Hardship

  Once the prima facie case is established, the burden shifts to the defendant, to show that "it cannot reasonably accommodate the plaintiff without undue hardship on the conduct of the employer's business." Philbrook, 757 F.2d at 481. Plaintiff claims that defendant failed to engage in a good faith effort to accommodate plaintiff's religious practice, or to establish that permitting plaintiff to wear his patches would constitute an undue hardship. Defendant claims that no reasonable trier of fact could find that defendant was able to reasonably accommodate plaintiff's alleged religious observance without undue hardship on the conduct of its business.

  Defendant claims that "[i]t was Plaintiff's own intractable position — not any failure on the part of Choice — insisting that he had a right to express his religious beliefs in whatever way he wished while he was at work that rendered any accommodation impossible." Mem. in Supp. of Def.'s Summ. J. Mot. at 25. Defendant claims that the undisputed material facts "demonstrate that Choice was unable to reasonably accommodate plaintiff's alleged religious observance without undue hardship on the conduct of its business, as plaintiff refused to cooperate in the accommodation process thereby precluding any reasonable accommodation." Def.'s Mem. in Opp'n to Pl.'s Summ. J. Mot. at 15-16. Plaintiff has testified that he "wasn't looking for any accommodation." Pl.'s Dep. at 110. Indeed, he stated that at the time that he was told to take the vest off, it would not have been acceptable to him to "do something else to express [his] beliefs" other than wear the vest. Id. at 114-15. and that "[t]here would be no substitute for actually displaying the embroidery Jesus is Lord." Id. at 115. Defendant claims that in the face of plaintiff's statements, defendant was not required to attempt accommodation. Def.'s Mem. in Opp'n to Pl.'s Summ. J. Mot. at 17. However, plaintiff has also stated that "Choice did not perform their required accommodation or attempt to accommodate or compromise." Pl.'s Dep. at 113. His amended complaint states that "[a]t no time after being notified of Mr. RIVERA religious beliefs [sic] and practices did CHOICE attempt of [sic] make any effort whatsoever to accommodate him in those practices." Compl. ¶ 22. He adds that "[a]t no time did Ms. Clewner, or any other employee of the defendant, discuss with me any proposed accommodation of my religious practice." Pl.'s Certification ¶ 35. In this connection, we note that plaintiff's alleged feelings at the time of his termination are not conclusive as to defendant's obligations under Title VII.

  Frank Rivera has testified that he tried "to reach a point of compromise" during his meeting with plaintiff, and asked plaintiff "is there any way he can express himself in a more suttle [sic] way, and he refused. Kept insisting this is what I want to wear. This is my belief, and you can't tell me how to express myself." Frank Rivera Dep. at 22.

  Defendant claims that a reasonable accommodation would be impossible without undue hardship, since defendant "had already received a complaint from a supervisor at a customer's facility concerning Plaintiff's appearance, and Choice wished to operate its business so as not to offend the religious beliefs, or non-beliefs, of its customers and Plaintiff's co-workers." Mem. in Supp. of Def.'s Summ. J. Mot. at 3. Defendant claims that it has "an undisputed interest in operating its business so as not to offend the beliefs, or non-beliefs, of its customers and plaintiff's co-workers, and a genuine and legitimate concern was raised that some of Choice's customers or their employees were likely to be offended by plaintiff's conspicuous evangelistic message were he allowed to continue to display it on his clothing in the workplace." Plaintiff has claimed that defendant "does not actually argue undue hardship, and in fact, does not offer a single fact in support of such a finding." Mem. in Opp'n to Def.'s Summ. J. Mot. at 9.

  Plaintiff argues that defendant could have offered plaintiff a position as a "street courier," where the dress code would be less stringent, "in an effort to reasonably accommodate his religious practice." Pl.'s Mem. in Supp. of Summ. J. Mot. at 11; Frank Rivera Dep. at 26. Frank Rivera has testified that in June, 2000, Choice had openings for street couriers, as well as for time service couriers. Frank Rivera Dep. at 8.

  A genuine issue of material fact exists as to what, if any, accommodation was offered to plaintiff. Plaintiff has testified that no attempt to accommodate was made, while defendant has offered testimony regarding attempts to compromise. Since defendant argues that plaintiff precluded any reasonable accommodation by "refus[ing] to cooperate in the accommodation process," and therefore renders material the question whether any accommodation was offered, we decline to grant summary judgment on this question.


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