By David Yucht, J.D.
It was reasonable to require a Sabbath-observant employee to use vacation days to accommodate her religious needs, according to a federal district court in New York, which dismissed a Walmart employee’s religious accommodation claim. Her hostile work environment claim was also dismissed, but her retaliation claim and some of her discriminatory failure to promote claims survived (Chavis v. Wal-Mart Stores, Inc., July 18, 2017, Chin, D.).
Sabbath-observant employee. A Walmart asset protection manager (APM) was a member of the Apostolic Pentecostal Church and observed the Sabbath on Sundays. For a number of years, she was able to arrange her schedule around Sundays. However, Walmart changed its policy and began to require APMs to work every third Sunday. Her request for a religious accommodation was not granted, but she was allowed to use vacation days to avoid working on Sundays, and she did so for nearly six months. She eventually appealed to the retailer’s “Open Door” hotline, though, and was exempted thereafter from Sunday work.
Hostility and retaliation. According to the employee, interactions with her superiors then took a discriminatory and harassing turn, which she contended was in retaliation for pursuing her accommodation request. In addition, for approximately two years following her request, she applied for various promotions—17 times, in fact. She was interviewed for only one of the positions, and was rejected for all of them. She also asserted that Walmart imposed unfair discipline and subjected her to unwarranted surveillance, investigation, and other harassment sufficient to alter her working conditions. Among her allegations was a claim that her supervisor called her the “fuel that feeds the fire,” and wanted her out of the store.
Lawsuit. The employee filed suit under Title VII and the NYSHRL alleging that Walmart employees harassed her and discriminated against her on the basis of her religion and retaliated against her for pressing her accommodation request. She also asserted a failure to accommodate claim for the six months she was required to use her vacation time for Sabbath observance.
Religious accommodation. The court granted the employer’s motion to dismiss the failure to accommodate claim. Even if she could establish a prima facie case of discrimination, it was not unreasonable to require her to use vacation days to accommodate her religious needs, the court said. The law required that the company offer a reasonable accommodation, not necessarily the accommodation requested. By using her vacation days, the employee was able to observe the Sabbath, which eliminated her conflict. Her accommodation claim failed because she was, in fact, accommodated.
Hostile work environment. The court also found that the employee failed to make out a hostile work environment claim. She argued that once she received her religious accommodation by resorting to Walmart’s hotline, she was subject to unwarranted searches, discipline, and condescending remarks. But the complained-of conduct was not frequent and, accepting the allegations as true, it appeared to be facially neutral, and unrelated to her religion. No reasonable jury could conclude that the conduct was sufficiently severe or pervasive to alter the conditions of employment or was the result of religious animus.
Failure to promote. The court denied summary judgment on several of the employee’s claims alleging discriminatory failure to promote. In such cases, each failure to promote must be considered separately. Here, the court dismissed the employee’s claims concerning six market supply positions because she offered nothing to support them. Other than the first name of one of the successful candidates, she did not know who interviewed for the positions or who the successful candidates were. However, the court denied summary judgment to Walmart on claims arising from her failed applications to “MAPM” positions, which involved direct supervision of APMs. Although Walmart argued that the employee was unqualified for this position because it required Sunday work, the employee raised a genuine issue of material fact regarding her qualifications because the MAPM job description did not mention work on Sundays, and an employee currently in the MAPM job testified that the position rarely involved Sunday work.
There also a genuine dispute as to whether the employee was similarly situated to the chosen candidate for an assistant store manager (ASM) position that she applied for. According to Walmart, the successful candidate was more qualified because he previously held the ASM position at a different store. However, the employee received assistant manager training for her prior job as photo lab manager, which gave her responsibilities comparable to those of an ASM. A reasonable jury could infer that the combination of her work as an APM and her assistant manager training made her equally qualified. Furthermore, the store manager indicated that he wanted her to be an ASM but was told she could not be considered because of her need for a religious accommodation.
Retaliation. Finally, the court refused to dismiss the employee’s retaliation claim. Regardless of whether her initial request for a religious accommodation amounted to protected activity, her appeal to the Open Door hotline clearly was protected conduct. In addition, the promotion denials were adverse employment actions, and the alleged heightened surveillance and scrutiny might well constitute adverse actions for retaliation purposes as well. Moreover, the employee pointed to statements by supervisors from which a jury could infer that her accommodation request was a cause of some of her promotion denials.
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