United States District Court, S.D. New York
Oliver Koppell, Esq., Daniel Schreck, Esq. Law Offices of G.
Oliver Koppell & Associates, P.C.
J. Moore, Esq., Sami Asaad, Esq., McCarter & English, LLP
CHIN United States Circuit Judge.
2013, plaintiff Cory Chavis, an Asset Protection Manager at
the Walmart store in Suffern, New York, requested a religious
accommodation permitting her not to work on Sundays so she
could observe the Sabbath. She brought this action against
defendants Wal-Mart Stores, Inc. and Wal-Mart Stores East, LP
(together, "Walmart") under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et
seq. ("Title VII"), seeking damages and
alleging that Walmart employees unlawfully harassed her and
discriminated against her on the basis of her religion and
retaliated against her for pressing her accommodation
request. Defendants move for summary judgment to dismiss the
complaint in its entirety. Because genuine issues of material
fact preclude the entry of summary judgment on certain of
Chavis's claims, defendants' motion is granted in
part and denied in part.
following facts are summarized from the evidentiary record
and are construed in the light most favorable to Chavis, the
party opposing summary judgment.
works for Walmart as the Asset Protection Manager
("APM") of the Suffern, New York store. ECF 67,
Consol. Stmt. of Mat. Facts ("Consol. Stmt.")
¶ 1. She has worked for Walmart since 1994 and has been
an APM at the Suffern store since 2006. Id. Chavis
is a member of the Apostolic Pentecostal Church and observes
the Sabbath on Sundays by, among other things, refraining
from work. Id. ¶¶ 47-50.
approximately six years in the APM position, Chavis was able
to arrange her schedule to avoid work on Sundays. In March
2013, however, Walmart changed its policy to require APMs to
work every third Sunday. Id. ¶¶ 53, 142.
Chavis requested an accommodation not to work on Sunday due
to her religious observance. Id. ¶ 54. The
request was not granted, and Chavis was told that she could
either use vacation days to avoid working on Sundays or find
another position that did not require any Sunday work.
Id. ¶ 55. For nearly six months, Chavis used
her vacation days to avoid working Sundays. Id.
¶¶ 55, 143, 148. After additional supervisors
failed to grant her request, Chavis appealed to Walmart's
"Open Door" hotline. Id. ¶¶
144-47. In September 2013, Walmart exempted her from Sunday
work and restored the vacation days she had used in the prior
six months. Id. ¶¶ 147-48; ECF 60, Koppell
Decl. Exs. 1, 2 ("Chavis Dep.") at 88-89.
a number of interactions took place between Chavis and her
superiors, which Chavis describes as discrimination and
harassment in retaliation for her accommodation request, and
which Walmart claims were routine actions that had no adverse
effect on Chavis's employment. See generally ECF
58, Pl.'s Opp. at 6-10. In addition, Chavis applied
seventeen times to various positions between March 2013 and
the filing of the instant lawsuit. ECF 47, Assad Decl. Ex. H.
She was denied each promotion and interviewed for only one.
Cons. Stmt. ¶¶ 185-88.
filed this suit in June 2015, claiming that Walmart
discriminated and retaliated against her in violation of
Title VII and NYSHRL by, among other things, denying her
promotions while promoting others who were not Sunday Sabbath
observers, imposing unwarranted discipline, and subjecting
her to unwarranted surveillance, investigation, and other
harassment sufficient to alter the terms and conditions of
her work environment. See ECF 1, Compl. at 12-14.
After the completion of discovery, defendants moved for
summary judgment, principally on the ground that Chavis
cannot establish a prima facie case of discrimination for any
of her claims. See ECF 45, Defs.' Mem. at 1.
Chavis opposed the motion, and defendants moved to strike
portions of Chavis's declaration and counter-statement of
material facts as contradictory to her deposition testimony,
lacking personal knowledge, and based on hearsay or other
inadmissible evidence. ECF 66, Defs.' Mot. to Strike.
After oral argument on June 19, 2017, I denied
defendants' motion to strike except as to paragraph 6 of
Chavis's declaration, which was stricken as inadmissible
hearsay. See Minute Entry dated 6/19/2017.
alleges that Walmart discriminated against her on the basis
of religion in violation of Title VII by failing to
accommodate her religious observance for a six-month period
in 2013, creating a hostile work environment, and failing to
promote her on seventeen separate occasions. She also
contends that Walmart retaliated against her because of her
accommodation request. After discussing the applicable legal
standard, I address each claim in turn.
judgment is appropriate "if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a); see also SCR Joint Venture L.P. v.
Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009). "An
issue of fact is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party, " and "[a] fact is material if it might
affect the outcome of the suit under the governing law."
SCR Joint Venture, 599 F.3d at 137 (quoting Roe
v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008)).
"A court reviewing a motion for summary judgment must
'construe the facts in the light most favorable to the
non-moving party and must resolve all ambiguities and draw
all reasonable inferences against the movant.'"
Beyer v. Cty. of Nassau, 524 F.3d 160, 163 (2d Cir.
2008) (quoting Dall. Aerospace, Inc. v. CIS Air
Corp., 352 F.3d 775, 780 (2d Cir. 2003)).
VII prohibits "discriminat[ion] against any individual
with respect to [her] compensation, terms, conditions, or
privileges of employment, because of such individual's .
. . religion." 42 U.S.C. § 2000e-2(a)(1).
Chavis's Title VII and NYSHRL discrimination claims are
governed by the burden-shifting analysis set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-04 (1973). Tolbert v. Smith, 790 F.3d 427, 434
(2d Cir. 2015). New York courts "require the same
standard of proof for claims brought under the NYSHRL as for
those brought under Title VII." Leopold v. Baccarat,
Inc., 174 F.3d 261, 264 n. 1 (2d Cir. 1999).
Accordingly, my conclusions regarding Chavis's Title VII
claims for retaliation, hostile work environment, and
discriminatory failure to accommodate and promote apply with
equal force to her analogous NYSHRL claims.
Failure to Accommodate
claims that Walmart failed to accommodate her Sabbath
observance for the six-month period from April to September
2013, in violation of Title VII. Pl.'s Opp. 29-30. She
argues that, during this period, Walmart disciplined her by
"forc[ing her] to use her vacation days to avoid working
on Sundays." ECF 59, Pl.'s 56.1 Stmt. ¶ 56.
Walmart argues in response that Chavis's use of vacation
days does not constitute disciplinary action, and she was not
disciplined in any other way for not working Sundays. ECF 63,
Defs.' Reply at 3.
is an unlawful employment practice . . . for an employer not
to make reasonable accommodations, short of undue hardship,
for the religious practices of his employees and prospective
employees." Baker v. The Home Depot, 445 F.3d
541, 546 (2d Cir. 2006) (citation and internal quotation
marks omitted). To establish a failure-to-accommodate claim
under Title VII, a plaintiff must first prove a prima facie
case of religious discrimination: namely, 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; (3) he or she was disciplined for
failure to comply with the conflicting employment
requirement." Philbrook v. Ansonia Bd. of
Educ., 757 F.2d 476, 481 (2d Cir. 1985) (citation
plaintiff establishes a prima facie case of religious
discrimination, the inquiry turns to whether the employer
complied with the statutory requirement to offer the
plaintiff a "reasonable accommodation" for his or
her religious belief, "unless doing so would cause the
employer to suffer an undue hardship." Baker,
445 F.3d at 546 (quoting Cosme v. Henderson, 287
F.3d 152, 158 (2d Cir. 2002)).
parties do not dispute that Chavis has a bona fide religious
belief that conflicted with an employment requirement or that
she informed Walmart of this belief. Cons. Stmt. ¶¶
47-54, 57. Because Chavis was not disciplined for failing to
comply with the requirement to work every third Sunday,
however, she cannot establish a prima facie case of religious
discrimination and her failure to accommodate claim therefore
initial matter, Chavis did in fact comply with Walmart's
requirement by availing herself of the option to use her
vacation days on the Sundays that she was required to work.
Cons. Stmt. ¶¶ 55-56. Although, according to
Chavis, she was told that she could either use her vacation
days or find another position that did not require Sunday
work, at no point did Walmart discipline Chavis for taking
vacation days every third Sunday. Chavis Dep. at 92.
argues instead that Walmart forced her to use vacation days
to avoid working on Sundays, which constituted
"discipline." This argument fails as a matter of
law because requiring an employee to use vacation days to
avoid work conflicting with the employee's religious
observance does not constitute an adverse employment
the Second Circuit has not defined what constitutes
"discipline" in the context of a religious
discrimination claim based on an employer's failure to
accommodate, district courts in the circuit have equated
discipline with an adverse employment action. See St.
Juste v. Metro Plus Health Plan, 8 F.Supp.3d 287, 316
(E.D.N.Y. 2014); Siddiqi v. N.Y. City Health & Hosps.
Corp., 572 F.Supp.2d 353, 370 (S.D.N.Y.
2008). An adverse employment action is a
"materially adverse change in the terms and conditions
of employment, " such as "a termination of
employment, a demotion evidenced by a decrease in wage or
salary, a less distinguished title, a In a typical
failure-to-accommodate case, a plaintiff is disciplined by
her employer after she fails to comply with an employment
requirement due to her religious belief. Here, Chavis was not
disciplined and did not suffer an adverse employment action
between April and September 2013 as a result of her religious
conflict; as noted above, she complied with her job
requirements and experienced no demotion or alteration of job
responsibilities as a result of her use of vacation days to
avoid Sunday work.
fact that Chavis needed to use vacation days to avoid a
religious conflict is not an adverse employment action
because she "was not deprived of a material benefit,
[but] simply chose to use the benefit in a particular
way." O'Neill v. City of Bridgeport Police
Dep't 719 F.Supp.2d 219, 226 (D. Conn. 2010)
(holding that the plaintiff did not suffer an adverse
employment action by needing to use vacation days to
accommodate his religious beliefs); accord St.
Juste, 8 F.Supp.3d at 316 (collecting district court
cases holding the same). Furthermore, as the result of
Chavis's appeals to the Open Door hotline, she was
ultimately exempted from working Sundays without having to
use her vacation days, and the vacation days she used in the
preceding six months were restored.
even if Chavis could establish a prima facie case of
discrimination, it was not unreasonable for Walmart to
require her to use vacation days as a religious
accommodation. An employer's accommodation offer is
reasonable where it "eliminate[s] the conflict between
the employment requirement and the religious practice."
Baker, 445 F.3d at 548 (citation omitted). The
Second Circuit has noted that a proposed accommodation may be
unreasonable "if it cause[s] [an employee] to suffer an
inexplicable diminution in his employee status or benefits,
" but that "employees are not entitled to hold out
for the most beneficial accommodation." Id.
ability to use her vacation time to observe the Sabbath
eliminated the conflict with the requirement that she work
every third Sunday. Title VII requires only that Walmart
offer a reasonable accommodation, not necessarily the one
that Chavis seeks. Durant v. Nynex, 101 F.Supp. 2d.
227, 234 (S.D.N.Y. 2000) (quoting Ansonia Bd. of Educ. v.
Philbrook, 479 U.S. 60, 69 (1986)). By using her
vacation days, Chavis was able to observe the Sabbath and was
required only to use a workplace benefit for its intended
purpose -- time off from work. Cf. Ansonia Bd. of
Educ., 479 U.S. at 70 (holding that allowing an employee
to take unpaid leave is typically a reasonable
accommodation). By allowing Chavis to use her vacation time
every third Sunday, Walmart was accommodating her,
and in the end Walmart even returned the vacation days she