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Waltzer v. Triumph Apparel Corp.

February 18, 2010

MARYLYN WALTZER, PLAINTIFF,
v.
TRIUMPH APPAREL CORP. F/K/A DANSKIN, INC., DEFENDANT.



The opinion of the court was delivered by: Denise Cote, District Judge

OPINION and ORDER

In September 2007, Triumph Apparel Corporation, formerly known as Danskin, Inc. ("Triumph"), fired Marilyn Waltzer ("Waltzer") after approximately one year of employment when she refused either to accept part-time employment or to remain at work until 3:00 p.m. on Fridays. Asserting that Triumph refused to accommodate her religious observance of the Jewish Sabbath, Waltzer has sued for employment discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. Following a bench trial on February 16, 2010, and for the reasons described below, judgment shall be entered for the defendant.

Waltzer filed this action on January 12, 2009, alleging employment discrimination on the basis of age, disability and religion. Waltzer abandoned her age and disability discrimination claims and they were dismissed on December 7, 2009.

Following the close of discovery and with the consent of the parties, the trial was conducted in accordance with the Court's Individual Practices: the direct testimony of the witnesses was presented through affidavits submitted with the pretrial order. Waltzer presented her own affidavit,*fn1 and did not call any other witness. Triumph presented affidavits from Cindy Ferrara ("Ferrara"), Vice President of Production at Triumph from September 1999 until December 14, 2009; and Lena Vladsky ("Vladsky"), Human Resources Director at Triumph from December 18, 2000 through July 29, 2009. Waltzer, Ferrara, and Vladsky appeared at trial and were cross-examined. Triumph also offered excerpts from Waltzer's deposition testimony.

Prior to trial, Waltzer moved in limine to prevent Triumph from presenting evidence that accommodating Waltzer's request to leave work before 3:00 p.m. on Fridays would have constituted an undue hardship. That motion was denied. Triumph moved in limine to preclude Waltzer from introducing into evidence three excerpts from testimony given at the plaintiff's New York State Department of Labor Unemployment Insurance hearing. Triumph's motion was granted as to two of the three excerpts.*fn2

This Opinion constitutes the findings of fact and conclusions of law following the February 16 bench trial. The factual findings are principally set forth in the first section of this Opinion, but appear as well in the final section.

FINDINGS OF FACT

Waltzer's Homes and Religious Observance

The plaintiff purchased a condominium in Haverford, Pennsylvania ("the Pennsylvania condo") in April 2004. No one shares the condo with her, but one daughter lives just blocks away and another daughter lives nearby. While employed at Triumph, Waltzer usually stayed at her Pennsylvania condo from Friday to Sunday afternoon.

Waltzer is Jewish and for the last 15 years has observed the Jewish Sabbath or Shabbat. Waltzer explains that her observance requires her to refrain from working or traveling between sundown on Friday evening and sundown on Saturday evening. A lighting of candles just before sundown and saying prayers over the candles, wine and challah after sundown constitute her acts of observance of the Sabbath. While she is permitted to eat during Shabbat, the act of eating is not part of her religious observance.

Waltzer asserts that in the winter, the sun can set as early as 4:25 p.m. She acknowledges that the time of sunset fluctuates throughout the year. It was her practice to shop for food and cook on Friday afternoon before sundown, but those activities did not constitute her observance of Shabbat. Approximately once a month, Waltzer shared the Friday night prayers and meal with her daughter who lived two blocks from the Pennsylvania condo.

Waltzer has rented an apartment in New Jersey since at least 2004. Some months before she began working at Triumph, Waltzer rented a one-bedroom apartment with an efficiency kitchen*fn3 on the top floor of a home in West New York, New Jersey ("the New Jersey apartment"). During her employment with Triumph, Waltzer lived in the New Jersey apartment from Sunday evening through Friday morning. Waltzer has, however, observed Shabbat at the New Jersey apartment a few times and there is no religious reason why she could not do so every weekend.

Waltzer's practice was to leave work on Friday and take a bus from the Port Authority in Manhattan to New Jersey, where she picked up her car. This portion of her trip took up to one hour, but sometimes far less time. Waltzer then drove to the Pennsylvania condo, a trip which could take up to an additional two hours. Thus, Waltzer's commute from Triumph's offices in New York City to the Pennsylvania condo could take as long as three hours. Waltzer preferred to observe Shabbat in Pennsylvania because her daughters lived there and because it was more pleasant being there than spending the weekend at her New Jersey apartment.

Fall 2006: Waltzer's Hiring

Triumph is in the business of designing, producing and marketing yoga, fitness, gymnastics, dance and casual wear for women. Until December 2009, it was the official licensee, designer, and distributor for a complete line of Danskin apparel and fitness equipment. Waltzer applied for a position as a product development manager in mid-September, 2006.

On the resume she gave Triumph, Waltzer listed the New Jersey apartment's address and a telephone number with a "914" or Westchester area code. Waltzer was using two different resumes to apply for jobs at that time. She used a resume with her Pennsylvania address when applying for jobs in Pennsylvania and the resume with her New Jersey address when applying for jobs in New York City. The three jobs she listed on her resume for the years 1997 to 2006 were all identified as businesses in New York City. The resume described her responsibilities in her current employment as overseeing her employer's Wal-Mart account.

Ferrara interviewed Waltzer twice for the position. At first, Waltzer asked if she could work four days a week, and Ferrara replied that she could not. Waltzer then advised Ferrara that she needed to leave early on Fridays to observe the Jewish Sabbath. Waltzer did not tell Ferrara that she had a home in Pennsylvania and wanted to travel to Pennsylvania on Fridays. Understanding that Waltzer lived in West New York, Ferrara assured Waltzer that she could leave early on Fridays. Neither woman discussed a specific time.

Triumph offered Waltzer a job at an annual salary of $95,000 in a letter dated October 10, 2006 that was addressed to Waltzer's New Jersey apartment. Waltzer began work on October 16 as a product development manager. In an "application" for employment dated October 16 that went to Triumph's payroll department, Waltzer listed the ...


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