United States District Court, S.D. New York
June 24, 2004.
PEDRO ANTONIO RIVERA, Plaintiff,
CHOICE COURIER SYSTEMS, INC., Defendant.
The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge
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.
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."
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."
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.
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
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).
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
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
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
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
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
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
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.