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Avrohom Marmulszteyn v. Janet Napolitano

August 22, 2012


The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge:


Avrohom Marmulszteyn ("Plaintiff") commenced this action against Janet Napolitano ("Defendant"), Secretary of the United States Department of Homeland Security ("DHS"), alleging employment discrimination on the basis of religion in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). Plaintiff principally claims that his employer, U.S. Customs and Border Protection ("CBP"), an agency within DHS, failed to provide him with a reasonable religious accommodation while serving as a Customs and Border Protection Officer ("CBPO"). Additionally, the Court construes the Verified Amended Complaint ("Complaint") as asserting a claim of disparate treatment on the basis of religion. (See generally Complaint ("Compl."), Doc. Entry No. 31.) Defendant moved to dismiss the Complaint for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Rule 12(b)(6)"), or, in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Rule 56"). (Defendant's Motion to Dismiss or for Summary Judgment ("Def. Mot."), Doc. Entry No. 47.) For the reasons set forth below, Defendant's motion to dismiss is denied and Defendant's motion for summary judgment is granted.


I. Overview of CBP Employment Practices

CBP, an agency within DHS, is tasked with protecting the United States at its various ports of entry. (Defendant's 56.1 Statement ("Def. 56.1"), Doc. Entry No. 49, at ¶¶ 11-12; Plaintiff's 56.1 Statement ("Pl. 56.1"), Doc. Entry No. 54, at ¶ 11-12.) CBP detects and prevents terrorists and instruments of terror, as well as harmful pests, illegal drugs, and illegal aliens, from entering the country, while also facilitating the safe and orderly flow of legitimate trade and lawful travelers. (Def. 56.1 at ¶¶ 12-13; Pl. 56.1 at ¶¶ 12-13.)

CBP operates a duty station at the port of entry located at John F. Kennedy International Airport in Jamaica, New York ("Port of JFK"). (Def. 56.1 at ¶ 15; Pl. 56.1 at ¶ 15.) Newly hired CBPOs at the Port of JFK are customarily assigned to the Passenger Processing Unit. (Def. 56.1 at ¶ 27; Pl. 56.1 at ¶ 27; Plaintiff's Affidavit in Opposition to Defendant's Motion ("Pl. Aff."), Doc. Entry No. 55, at ¶ 6.) CBPOs are required to work a schedule consisting of five days on followed by two consecutive days off, called "rotating days off," because they rotate each week according to a fixed schedule.*fn1 (Def. 56.1 at ¶¶ 14, 28-29; Pl. 56.1 ¶¶ 14, 28-29; Transcript of Plaintiff's Deposition dated Oct. 26, 2010 ("Pl. Dep. Tr."), Doc. Entry No. 50, Ex. S, at 76:10-21.) As a result of this schedule, CBPOs must ordinarily work five out of every seven Saturdays. (Def. 56.1 at ¶ 30; Pl. 56.1 at ¶ 30.)

Certain CBPOs of the Islamic and Orthodox Jewish faiths have permanent exemptions for religious reasons from working on a particular day of the week, such as Friday or Saturday.

(Def. 56.1 at ¶¶ 57-59; Pl. 56.1 at ¶¶ 57-59.) CBP honors such exemptions for these particular employees because they had previously worked for one of CBP's predecessor agencies, which had granted the exemptions. (Def. 56.1 at ¶¶ 57, 59-60, 170; Pl. 56.1 at ¶¶ 57, 59.) These employees are known as Legacy Employees, and are the only employees who have such exemptions.*fn2 (Pl. 56.1 at ¶¶ 56-57, 59, 61; Def. 56.1 at ¶¶ 56-57, 59.)

II. Plaintiff's Religious Discrimination Claim

Plaintiff is an Orthodox Jew. (Def. 56.1 at ¶ 2; Pl. 56.1 at ¶ 2.) His religion requires him to abstain from work on the Sabbath, which is a twenty-five hour period running from sunset on Friday until one hour after sunset on Saturday. (Def. 56.1 at ¶ 3; Pl. 56.1 at ¶ 3.) After this period has elapsed, Plaintiff's religion permits him to work for the remainder of Saturday evening. (Def. 56.1 at ¶ 4; Pl. 56.1 at ¶ 4.)

In June 2006, Plaintiff was hired by CBP as a CBPO at the Port of JFK. (Def. 56.1 at ¶ 1; Pl. 56.1 at ¶ 1.) Following a training period, Plaintiff was assigned to the Passenger Processing Unit, in accordance with CBP's customary employment assignment practices. (Def. 56.1 at ¶¶ 27, 107; Pl. 56.1 at ¶¶ 27, 107.) There, Plaintiff was subject to the general requirement that CBPOs work the standard rotational schedule, which entailed that Plaintiff work most Saturdays. (Def. 56.1 at ¶¶ 29-30, 107; Pl. 56.1 at ¶¶ 29-30, 107.)

Given the conflict between this work schedule and Plaintiff's religious duty to abstain from work on the Sabbath, Plaintiff filed a Religious Accommodation Request with the CBP Equal Employment Opportunity ("EEO") Office, seeking a religious accommodation exempting him from work during the Sabbath. (Def. 56.1 at ¶¶ 113-115; Pl. 56.1 at ¶¶ 113-115.) Specifically at issue was Plaintiff's shift from 6:00 a.m. to 2:00 p.m. on most Saturdays ("Saturday Morning Shift"). (Def. 56.1 at ¶ 117; Pl. 56.1 at ¶ 117.) On August 10, 2006, CBP denied Plaintiff's request for an exemption, citing to CBP's unique operational needs and Plaintiff's agreement, as a condition of employment, to be available for work on Saturday. (Def. 56.1 at ¶¶ 120-21; Pl. 56.1 at ¶¶ 120-21.) However, CBP informed Plaintiff that he would be permitted to swap any assigned Saturday Morning Shift with an equally qualified CBPO, subject to a supervisor's approval that could "not be unreasonably withheld." (Def. 56.1 at ¶ 122; Pl. 56.1 at ¶ 122.)

On November 28, 2006, Plaintiff filed an administrative complaint ("EEO Complaint")

with the CBP EEO office, alleging that CBP had engaged in religious discrimination by refusing to grant his request for a permanent exemption from work on the Sabbath. (Def. 56.1 at ¶¶ 182-84; Pl. 56.1 at ¶¶ 182-84.) Following the filing of the EEO Complaint, on June 27, 2007, CBP offered Plaintiff another accommodation: a schedule ("Accommodation Tour") that assigned Plaintiff to the morning shift on Fridays, while also moving any of Plaintiff's assigned Saturday Morning Shifts to 10 p.m. on Saturday night until 6:00 a.m. Sunday morning ("Weekend Overnight Shift"). (Def. 56.1 at ¶¶ 129-30; Pl. 56.1 at ¶¶ 129-30.) This schedule would ensure that Plaintiff was not scheduled to work at any point during the Sabbath, and had at least eight hours off ...

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