Opinion
4:00CV3097.
January 1, 2001.
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
The plaintiffs are six current and former employees of the defendant, which operates a production facility inside the Nebraska State Penitentiary. The plaintiffs have filed a three-count complaint alleging violations of 42 U.S.C. § 2000e et seq. of the Civil Rights Act of 1964, as amended (Title VII) and the Nebraska Fair Employment Practice Act, Neb. Rev. Stat. §§ 48-1101-1125 (Michie 1995) (NFEPA) (filing 1). The defendant has filed a motion for summary judgment, filing 20. I have carefully reviewed the motion, its associated briefs, and the evidentiary materials submitted pursuant to Fed.R.Civ.P. 56 and NELR 7.1 and 56.1, and I find that the defendant's motion must be denied.
I. BACKGROUND
At the time of the actions giving rise to the complaint, the plaintiffs were inmates housed at the Nebraska State Penitentiary (NSP). Each plaintiff is a member of the House of Yahweh, a religious organization whose members celebrate a number of annual holidays or "feasts" and observe the Sabbath from sundown Friday to sundown Saturday each week. It is also relevant that members of the House of Yahweh abstain from eating pork, or any item that has been contaminated by pork via indirect physical contact.
The defendant TEK Industries, Inc. is incorporated in Nebraska and is engaged in manufacturing parts and assembling components in fulfillment of contract orders from its clients. At some unspecified time, Cornhusker State Industries (CSI), which oversees private venture operations within the Nebraska Department of Corrections, approached the defendant with a proposal to allow the defendant to employ inmates within NSP. The defendant accepted this proposal and began to employ inmates at a facility located within the walls of the NSP.
Due to the unique location of the defendant's operation and composition of its workforce, the defendant must adhere to certain rules that have been imposed by CSI, NSP and the Nebraska Department of Correctional Services (NDCS). Monday through Friday, the defendant maintains a 7:30 a.m. to 4:00 p.m. workday divided into morning and afternoon shifts. The defendant is permitted to extend working hours to 5 p.m. during the week and to operate on Saturdays when production demands require overtime work. Advance notice is given to NSP when Saturday overtime is scheduled, and all employees are required to work on those Saturdays. The defendant does not operate on Sundays.
The defendant pays its employees at the minimum wage rate when they begin their employment, and in time employees can earn pay raises. Inmates employed by CSI receive a substantially lower wage than those employed by the defendant. In addition to a favorable wage, the defendant's employees occasionally receive bonuses in the form of meals. When the defendant first began its operations at NSP, and only six inmates were employed as die-makers, special dinners were held to commemorate specific achievements by the employees. As the number of the defendant's employees grew, the defendant lost permission to continue the practice of rewarding employees with meals for special achievements. The special meals are now provided on approximately a quarterly basis, with one meal typically taking place during the Christmas holiday season. Employees who do not wish to join in a special meal may dine in the prison cafeteria. The employees are not paid during the mealtime, but those inmates who choose to visit the prison cafeteria might recommence work either earlier or later than employees who choose to eat the special meal, depending upon how swiftly they are returned to the defendant's facility by the prison guards.
The defendant maintains an attendance policy whereby, following the completion of an introductory period, part-time employees receive up to 60 hours of absenteeism per year and full-time employees receive up to 120 hours of absenteeism per year. No absences are excused, but employees may apply their allotted hours as they see fit. According to the defendant's company policies and guidelines, absences in excess of the allotment subject an employee to probation upon the first such absence, suspension upon the second, and termination upon the third.
The plaintiffs were aware of this attendance policy and the potential for Saturday overtime work to conflict with their religious practices. When several of the plaintiffs voiced their concerns about being required to work on the Sabbath, their supervisors initially indicated that Saturday work was optional. However, production demands subsequently motivated the defendant to schedule the plaintiffs on Saturdays. Despite the plaintiffs' objections to being scheduled for work on Saturdays, and although they informed the defendant of their religious commitments in advance, the plaintiffs were required to apply a portion of their allotment of absentee hours to these "mandatory" Saturdays.
The plaintiffs stated in their depositions that they have experienced problems due to their unwillingness to work on Saturdays. Hobby has indicated that his request to move to a job that would not have required him to work on Saturdays was denied, even though he had been originally hired to work in the position he requested. He was terminated for exceeding his absentee time, and despite good scores on his final production report, he was told that he would not be rehired due to his unwillingness to work on Saturdays. Maeder was told that he would be unable to advance to new positions or higher rates of pay due to his unwillingness to work on Saturdays. Cichowski stated that he received a smaller pay raise than a less versatile employee who worked on Saturdays. Plaintiffs Gracier, DeHaas, Cichowski, and Jones all stated that they suffered emotionally due to being forced into choosing between their valued employment and keeping the Sabbath.
Near the Easter holiday in 1999, a special meal was arranged by the defendant for its employees. The meal consisted of ham accompanied by scalloped potatoes, corn, sweet potatoes, bread, and pie. In advance of the meal, the plaintiffs requested that a substitute be provided in place of the ham. The defendant refused this request, and there is evidence that a supervisor of the plant made disparaging comments directed at the plaintiffs' religion in connection with the refusal of the request. The defendant did invite the plaintiffs to join in the meal and partake of the non-pork food items. However, the plaintiffs refused this invitation, and two of the plaintiffs have stated that the meal's association with the Easter holiday prohibited them from participating in the meal whether a ham was served or not.
The plaintiffs filed a three-count complaint alleging discrimination based upon the plaintiffs' religion in violation of Title VII (Count I), retaliation in violation of Title VII (Count II), and a violation of the Nebraska Fair Employment Practices Act (Count III). The issues raised by the defendant in its motion for summary judgment are (1) whether there are sufficient facts to support a claim of discrimination on the basis of religion under Title VII; (2) whether there are sufficient facts to support a claim of retaliation under Title VII; and (3) whether jurisdiction exists over the state law retaliation claim brought under Neb. Rev. Stat. § 48-1114. Each of these issues will be addresses in turn.
II. STANDARD OF REVIEW
A motion for summary judgment shall be granted by the court when, viewing the facts and reasonable inferences in the light most favorable to the nonmoving party, "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists when there is sufficient evidence favoring the party opposing the motion for a jury to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the moving party meets the initial burden of establishing the nonexistence of a genuine issue, then the burden shifts to the opposing party to produce evidence of the existence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The opposing party "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial" and "must present affirmative evidence in order to defeat a properly supported motion for summary judgment."Anderson, 477 U.S. at 256-57 (citations omitted).
III. ANALYSIS A. Discrimination on the Basis of Religion in Violation of Title VII
Title VII makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . religion . . . ." 42 U.S.C. § 2000e-2(a). The plaintiffs' claim of religious discrimination has two separate bases. First, the plaintiffs complain that losing a portion of their limited allotment of absenteeism hours each time they observe the Sabbath on a "mandatory Saturday," and thereby risking discipline and termination, amounts to religious discrimination in violation of Title VII. The plaintiffs also argue that the serving of ham at a special Easter meal offered by the defendant violated Title VII. The defendant's motion for summary judgment addresses both of these bases, and I shall analyze each of them in turn.
1. Saturday Absences
To establish a prima facie case of discrimination based upon religion under Title VII, the plaintiffs must show (1) they had a bona fide religious belief that conflicted with an employment requirement; (2) they informed the defendant of this belief; and (3) they were disciplined for failing to comply with the conflicting employment requirement. Wilson v. U.S. West Communications , 58 F.3d 1337, 1340 (8th Cir. 1995). Once the plaintiffs establish a prima facie case, the burden shifts to the employer to show that it offered the plaintiffs a reasonable accommodation, or that accommodating the plaintiffs' religious practices would result in undue hardship to the employer. Id . The defendant argues that the plaintiffs have failed to establish a prima facie case because there is no evidence that the plaintiffs were disciplined for failing to work on Saturdays. The defendant also argues that it accommodated the plaintiffs' religious beliefs, and that any additional accommodations would result in undue hardship. First, the defendants argue that requiring the plaintiffs to use absenteeism hours on Saturdays does not amount to "discipline" for the purposes of the plaintiffs' prima facie case. The plaintiffs counter that since termination results when the allotted hours for absenteeism are exceeded, each observance of the Saturday Sabbath when work is scheduled increases their risk of discharge. In support of their counter-argument, the plaintiffs refer me to Cooper v. Oak Rubber Company , 15 F.3d 1375 (6th Cir. 1994). In Cooper , the plaintiff filed suit under Title VII, claiming that she was disciplined and constructively discharged due to her religious beliefs against working on the Sabbath. The defendant maintained an attendance policy whereby employees accumulated points for unexcused absences, and absences in observance of the Sabbath qualified as "unexcused." One point was accumulated for each unexcused absence that was reported in advance of the employee's scheduled shift. The accumulation of six points within a year resulted in a verbal warning; eight points resulted in a written warning; ten points resulted in a three-day suspension; and twelve points resulted in discharge. The plaintiff accumulated points due to her absences on Saturdays in observance of the Sabbath, and she resigned just prior to her tenth absence. It was undisputed in Cooper that the plaintiff was disciplined due to her absences. Id . at 1379 n. 1. Therefore, Cooper does not stand for the proposition that the accumulation of penalty points for absences, without more, constitutes "discipline" for the purposes of a plaintiff's prima facie case of religious discrimination. However, there may yet be a genuine issue of whether the plaintiffs were disciplined in other ways.
The initial burden of demonstrating that there is no genuine issue that the plaintiffs were not disciplined as a result of their observance of the Sabbath rests with the defendant. The defendant has not met its burden with respect to several of the plaintiffs, because much of the evidence that has been filed in support of the defendant's statement of uncontroverted facts fails to support the factual statements made by the defendant. Additionally, even where the defendant has properly supported its argument for summary judgment, the plaintiffs have responded with evidence that creates a genuine issue of material fact.
Plaintiff Gracier was employed periodically by the defendant until he was transferred to another correctional facility. The plaintiff has set forth properly supported facts which show that there is a genuine issue for trial whether he was disciplined due to his observance of the Sabbath. There is evidence that Gracier was told by a supervisor that he would have to choose between his faith and his job, and that he would wind up losing his job due to his unwillingness to work on Saturdays. The defendant has presented no argument that such a verbal warning does not constitute discipline for the purposes of the plaintiffs' prima facie case.
For example, the defendant represents to me that the following is a statement of uncontroverted fact: "Plaintiffs admit that they were not reprimanded, counseled, or disciplined in any way for their absences on mandatory Saturdays. (Exhibit 3 — Deposition of Plaintiff Kirk Maeder 8:5-10:3, 18:11-21:12; Exhibit 4 — Deposition of Plaintiff Ronald Cichowski 7:9-11:3)." Def.'s Statement of Uncontroverted Facts (Br. In Supp. of Def.'s Mot. for Summ. J.) ¶ 30 (hereinafter Def.'s Facts). If this statement were supported, it would seem to negate the third element of the plaintiffs' prima facie case. However, the cited portions of both of these depositions provide absolutely no support for the "factual" statement presented in paragraph 30. This baseless assertion does not satisfy the defendant's initial burden of demonstrating that there is no genuine issue for trial. In addition to the general statement quoted above, the defendant argues more specifically that each individual plaintiff has not been disciplined for observing the Sabbath. First, with respect to Plaintiff Jones, the defendant claims that Jones was terminated due to excessive absenteeism unrelated to his observance of the Sabbath, but, again, the factual statement that sets forth this information is not supported by the cited deposition testimony Compare Def.'s Facts ¶ 19 with Def.'s Exhibit 2 — Deposition of Plaintiff Roy Jones 7:25-8.8, 10:17-12:20. In fact, I cannot tell from the evidence provided by either party whether Jones remains in the employ of the defendant or not, whether he was terminated for excessive absences or not, or whether he was simply moved to a different position within the defendant's operation, as is suggested by paragraph 33 of the complaint and Jones' charge to the Nebraska Equal Opportunity Commission (NEOC) (Pls.' Ex. 9). Nevertheless, assuming for the moment that Jones was discharged for excessive absenteeism, the defendant proceeds to argue that the majority of all of the plaintiffs' absences, including Jones', were unrelated to any observance of the Sabbath. Therefore, it is argued that the discharge of Jones cannot be due to his observance of the Sabbath, and, in turn, Jones cannot argue that he was disciplined due to his religion. The defendant's logic is flawed, and I find that it has failed to establish that there is no genuine issue that Jones was not disciplined for observing the Sabbath. Although the defendant has properly supported its statement that each plaintiff, including Jones, accumulated absences that were not related to his religion, this fact does not establish that the plaintiffs were not disciplined for observing the Sabbath. The plaintiffs claim that, had they not lost absentee hours for observing the Sabbath, those plaintiffs who were terminated for excessive absences would not have lost their jobs. Quite frankly, neither party has provided any evidence to show whether this claim is true or false, although it appears in paragraph 35 of the complaint. Since the initial burden of demonstrating that there is no genuine issue that Jones was not disciplined for his absences on the Sabbath rests with the defendant, and since no evidence on this issue has been properly presented before me, I must conclude that the defendant has failed to satisfy its burden, and a genuine issue remains for trial. My analysis might be different if the defendant had alleged that no such evidence existed, but the defendant has given me no grounds for shifting the burden to the plaintiffs. In addition, even if the evidence before me showed that Jones would have been terminated for excessive absences regardless of his observance of the Sabbath, the plaintiffs have provided evidence demonstrating that Jones may have been disciplined in another manner. In his complaint to the Nebraska Equal Opportunity Commission, he alleged that he was shifted to another position in favor of a person he trained who did not share Jones' religious convictions. (Pls.' Ex. 9). Therefore, I find that there is a genuine issue as to whether Jones was disciplined due to his observance of the Sabbath. As with Jones, the defendant's statement that Plaintiff Hobby was terminated due to absenteeism is not supported by the deposition testimony cited by the defendant, although the plaintiffs' deposition excerpts do support this fact Compare Def.'s Facts ¶ 24 with Def.'s Exhibit 6 — Deposition of Plaintiff Harvey Hobby 10:11-13:5. Again, the defendant has failed to show that there is no genuine issue that Hobby was not disciplined. In fact, the plaintiffs have set forth properly supported facts showing that due to his observance of the Saturday Sabbath, Hobby was denied a transfer and was not rehired following his termination See Pls.' Statement of Controverted (sic) Facts ¶ 17. Therefore there is a genuine issue whether Hobby was disciplined due to his religion in violation of Title VII. The defendant has alleged that Plaintiff DeHaas resigned his employment, has remained eligible for rehire, and has never reapplied for employment, and thus presumably could not have been disciplined for observing the Sabbath. Def.'s Facts ¶ 22. However, the materials cited also show that DeHaas left his job due to his inability to handle the stress of being forced to choose between work and observing the Sabbath, and because he hoped that quitting before he was terminated would place him in a better position to get his job back again See Def,'s Exhibit 5 — Deposition of Plaintiff Austin DeHaas 24:12-19. Therefore, as with Jones and Hobby, I find that a genuine issue whether DeHaas was disciplined precludes summary judgment. Also, in what is perhaps the most flagrant example of the defendant's failure to properly support factual statements, the defendant's statement of fact at paragraph 23 is completely unrelated to the deposition pages cited in its support Compare Def.'s Facts ¶ 23 with Def.'s Exhibit 5 — Deposition of Plaintiff Austin DeHaas 9:20-11:24. Finally, the defendant argues that Plaintiffs Maeder and Cichowski are still employed by the defendant and have received raises, and therefore there is no genuine issue that they were not disciplined for failing to attend work on Saturdays. Incidentally, the deposition testimony cited by the defendant makes no mention of whether these plaintiffs received raises Compare Def.'s Facts ¶¶ 20 and 21 with Def.'s Exhibit 3 — Deposition of Plaintiff Kirk Maeder 8:5-10:3, 18:11-21:12; Def.'s Exhibit 7 — Deposition of Ruth Minchow 23:3-15 and Def.'s Exhibit 4 — Deposition of Plaintiff Ronald Cichowski 7:9-11:3; Def.'s Exhibit 7 — Deposition of Ruth Minchow 23:3-15. At any rate, the plaintiff has responded with deposition testimony that creates a genuine issue for trial as to whether these plaintiffs lost privileges of employment or were discriminated against with respect to compensation or conditions of employment. There is evidence to support the plaintiffs' argument that Maeder was denied opportunities for advancement due to his observance of the Sabbath and that Cichowski did not receive a pay raise equal to that of another, less capable employee who did not observe a Saturday Sabbath See Pls.' Statement of Controverted (sic) Facts ¶¶ 18-19. According to Rule 11(b)(3) of the Federal Rules of Civil Procedure, the defendant's counsel has certified that, to the best of counsel's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, the allegations and other factual contentions presented in the brief in support of summary judgment have evidentiary support. Several paragraphs of the defendant's statement of uncontroverted facts, including those identified above, come perilously close to suggesting a violation of Rule 11(b). The defendant next argues that it has reasonably accommodated the plaintiffs' religious practices by allowing them up to sixty hours of absenteeism per year for part-time employees and 120 hours of absenteeism per year for full-time employees. The defendant argues that this "no-fault" attendance policy is a neutral system in that employees may use their hours for any absence, and therefore the plaintiffs may avoid work when their religious beliefs so demand. In support of this argument, the defendant first refers me to Greenfield v. City of Miami Beach, Florida , 844 F. Supp. 1519 (S.D.Fla. 1992). In that case, the plaintiff was required to take unpaid leave to cover many of her holidays, and this was found to be a reasonable accommodation Id at 1525. However, the plaintiff in Greenfield was never asked or forced to work on a religious holiday, and never did in fact work on a holiday Id at 1524. She was also allowed to use a flexible scheduling plan in order to accommodate her religious practices until she began to abuse the privilege of flexible scheduling Id at 1524-25. These facts are readily distinguishable from the present case, where the plaintiffs have been given no opportunity to schedule around their holidays. More importantly, in the present case the plaintiffs do not claim that they are entitled to paid leave in order to observe religious holidays. Instead, the plaintiffs seek to observe the Sabbath without risk of being fired and to remedy alleged instances of discrimination based upon their unwillingness to work on Saturdays. It appears to me that a proper reading of Greenfield does not support the defendant's position that allowing the plaintiffs to observe the Sabbath only by using unpaid leave that counts towards discipline or termination is a reasonable accommodation. The defendant also refers me to Pinsker v. Joint District Number 28J of Adams and Arapahoe Counties , 735 F.2d 388 (10 Cir. 1984), which is similarly unpersuasive. As in Greenfield , the plaintiff in Pinsker sought to have his religious absences covered by paid leave Pinsker , 735 F.2d at 389-90. The defendant allowed the plaintiff to use unpaid leave to observe these holidays, and this was deemed to be a reasonable accommodation Id at 391. Also as in Greenfield , there is no suggestion that the unpaid leave taken by Pinsker was unexcused or could lead to discipline. In fact, the court stated, "[d]efendant's policy and practices jeopardized neither Pnsker's job nor his observation of religious holidays." Id The same cannot be said for the defendant's policy in this case. The defendant argues that because its attendance policy is neutral, it must therefore be a reasonable accommodation Trans World Airlines Inc. v. Hardison , 432 U.S. 63 (1977) Hardison is not analogous. Trans World Airlines would have allowed its employee to swap shifts in order to accommodate his religious observances, but the union would not agree to violate the provisions of the seniority system then in place Id at 78. Trans World Airlines made significant efforts to accommodate its employee that have not been made by the defendant in this case:
It might be inferred from the Court of Appeals' opinion and from the brief of the EEOC in this Court that TWA's efforts to accommodate were no more than negligible. The findings of the District Court, supported by the record, are to the contrary. In summarizing its more detailed findings, the District Court observed:
"TWA established as a matter of fact that it did take appropriate action to accommodate as required by Title VII. It held several meetings with plaintiff at which it attempted to find a solution to plaintiff's problems. It did accommodate plaintiff's observance of his special religious holidays. It authorized the union steward to search for someone who would swap shifts, which apparently was normal procedure." 375 F. Supp., at 890-891.
It is also true that TWA itself attempted without success to find Hardison another job. The District Court's view was that TWA had done all that could reasonably be expected within the bounds of the seniority system.Trans World Airlines Inc. v. Hardison , 432 U.S. at 77 (citation omitted). It appears to me that, since the only way for the plaintiffs to avoid work on the Sabbath was to use potentially all of a limited number of absence hours and thereby risk discipline and termination, the defendant's argument that the plaintiffs were accommodated must be rejected See Cooper v. Oak Rubber Co , 15 F.3d 1375, 1379 (6 Cir. 1994) (finding that confronting an employee with the choice of working on the Sabbath or potentially using all of her vacation time is not a reasonable accommodation). The issue now becomes whether the defendant could have accommodated the plaintiffs' religious beliefs without suffering an undue hardship. Any cost to the defendant in terms of lost efficiency or increased wage expenditures would constitute an undue hardship Hardison , 432 U.S. at 84. The evidence provided by the defendant does not support its conclusion. Although there are procedural requirements that must be followed based upon the unique location of the defendant's operation, none of the evidence provided by the defendant regarding these procedural requirements shows that shift trading among the part-time employees, for example, poses any administrative burden. There is no indication that the defendant would have to expand its hours of operation to accommodate the plaintiffs. If there is an administrative reason why any accommodation of the plaintiffs' religious beliefs would pose an undue hardship, evidence of that reason is not before me at this time. In support of this argument, the defendant refers me to excerpts from the depositions of Ruth Minchow and Terry LaFavor See Def.'s Facts ¶ 27. The defendant has provided me with no foundation that sets forth precisely what Minchow's position is, but it appears that she is a management-level employee with the defendant. She stated in her deposition that there have been occasions when the defendant has failed to meet its production quota, although she was unable to add any specific details regarding these failures. The dates of these failures are not provided, and it is unknown whether overtime was scheduled on Saturdays during those failures or whether any of the failures were related to attendance problems of any kind. The defendant has provided some evidence that an accommodation could impose an undue hardship upon its production. However, the plaintiffs point out that there is no evidence that production was affected in any way due to their absence on Saturdays, which, incidentally, the defendant was made aware of in advance. I find it telling that the defendant refers me to no evidence suggesting that when the plaintiffs failed to work on Saturdays in the past, production dropped. To the extent that such a conclusion is axiomatic, it is all the more puzzling that it is not in evidence. I will not assume this critical fact, and therefore I find that there is a genuine issue for trial. It is not clear whether excusing the plaintiffs' Saturday absences, which are certain to occur and have been occurring consistently for some time, would impose an undue hardship upon the defendant. There is also no evidence that the defendant was forced to replace the plaintiffs with other workers when the plaintiffs failed to work on Saturdays. The evidence before me states only that the plaintiffs refused to work on Saturdays, and that the defendant counted those absences against the plaintiffs' allotment of absentee hours. Just as there is no evidence that the plaintiffs' failures to work on Saturdays in the past has adversely affected production, there is no evidence before me that excusing these absences, rather than counting them against the plaintiffs, would have any effect upon the defendant's operation in the future. The defendant has failed to properly support its argument that the plaintiffs have not set forth a prima facie case of discrimination based upon religion in connection with their observance of the Sabbath. The defendant has also failed to show that it has offered the plaintiffs a reasonable accommodation, or that any accommodation would be unduly burdensome. The defendant's motion for summary judgment on that portion of the plaintiffs' first cause of action associated with the observance of the Sabbath must therefore be denied.
2. The Special Meal Containing Ham
The plaintiffs also claim that the defendant discriminated against them by providing a bonus meal featuring a ham, which the plaintiffs declined to participate in due to the dietary constraints of their religion. The defendant argues that a single instance of serving an entree that conflicts with the plaintiffs' dietary laws does not rise to the level of a Title VII violation. In addition, the defendant argues that the availability of other foods such as scalloped potatoes, corn, sweet potatoes, bread, and pie amounts to an accommodation, and points out that inmates are free to dine in the prison cafeteria if they so choose.The defendant attempts to characterize the special meal as a "perquisite" rather than a bonus or reward. However, even this characterization makes it clear that the special holiday meal was a privilege of employment. Simply stating that there is no Title VII violation in providing a one-time perquisite that a number of employees cannot benefit from due to their religion is not enough to carry the defendant's initial burden on summary judgment.
There is a genuine issue of fact whether the plaintiffs were accommodated by the availability of other foods or the option of dining in the prison cafeteria. There is evidence that the plaintiffs brought their concerns regarding the meal to the defendant in advance and were met with disparaging remarks rather than an accommodation. Some of the plaintiffs expressed concern regarding cross-contamination, which can occur if a utensil comes into contact with both the ham and one of the other foods. Also, even if some of the plaintiffs were willing to eat the non-pork menu items, they nevertheless may have been denied the benefit of a main course "perquisite" enjoyed by the other employees who did not share their religious beliefs.
There is also an issue whether allowing the plaintiffs to dine in the prison cafeteria amounted to a reasonable accommodation. In fact, the option of dining in the prison cafeteria amounted to complete sacrifice of a privilege of employment that other employees without religious conflicts could enjoy. In addition, there is a genuine issue whether the plaintiffs were docked absence time as they moved to and from the prison cafeteria during the ham dinner, which suggests that the plaintiffs were penalized rather than accommodated.
The defendant argues persuasively that at least two of the plaintiffs, Mr. Maeder and Mr. Gracier, indicated that they would be unable to participate in the meal regardless of the presence of the ham, due to the meal's association with the Easter holiday. This argument shifts the focus of the plaintiffs' claim from the ham to the ambiance of the meal more generally. There is a genuine issue as to whether the special meal was an Easter celebration, which may have deprived the plaintiffs of a privilege of employment based upon the plaintiffs' religious faith. The defendant does not deny that the meal was associated with Easter, but instead argues that Easter is a public holiday with a secular purpose, suggesting that despite the plaintiffs' avoidance of the meal, the occasion was devoid of religious significance. In support of this position, the defendant refers me to a single case, Cammack v. Waihee, 673 F. Supp. 1524 (D.Haw. 1987). Cammack involved a taxpayers' unsuccessful challenge to a Hawaii statute that declared Good Friday to be a legal holiday. The case before me does not involve governmental entanglement with religion, and although Cammack sets forth a well-reasoned analysis of the issues confronting it, I find Cammack to be unpersuasive in the context of the present matter. Cammack simply does not stand for the broad proposition the defendant advocates, which is that its own private holiday dinner, billed as an Easter meal featuring ham and complete with Easter egg candies must, as a matter of law, be a secular occasion.
For the foregoing reasons, the defendant's motion for summary judgment on the plaintiffs' first cause of action must be denied.
B. Retaliation in Violation of Title VII
Title VII prohibits employers from discriminating against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). A plaintiff can establish a prima facie case of retaliation under this section by showing that (1) he opposed a practice made unlawful by the statute; (2) adverse action was taken against him by his employer; and (3) there is a causal link between the protected activity and the adverse action. Stuart v. General Motors Corp., 217 F.3d 621, 634 (8th Cir. 2000). If the plaintiff establishes his prima facie case, the employer must come forward with a legitimate, nondiscriminatory reason for the adverse action. Id. If the employer satisfies this burden, the plaintiff may attempt to show that the employer's reason was merely a pretext for unlawful retaliation. Id.
Preliminarily and for the purposes of clarity, I shall address the defendant's argument that Mr. Jones was the only plaintiff to properly allege retaliation in his NEOC and EEOC charges, and therefore he is the only plaintiff that is entitled to raise a retaliation claim under Title VII. The plaintiffs have responded by stating that Jones is in fact the only plaintiff raising a claim of retaliation in violation of Title VII. Since the Order on Final Pretrial Conference, filing 41, reflects the parties' understanding and agreement that only Mr. Jones is raising a retaliation claim, the defendant's argument on this point is now moot.
With respect to the remaining plaintiff, the defendant argues that Jones has failed to establish a prima facie case of retaliation because he has not suffered an adverse employment action, and because there is no causal link between the filing of his NEOC and EEOC charges and any adverse action that he may have suffered, since he was docked absence time well before he filed his charges.
I have already discussed at great length the lack of evidence with respect to Mr. Jones' employment. Again, the evidence provided by both parties does not definitively show whether Jones remains in the employ of the defendant or not, whether he was terminated for excessive absences or not, or whether he was simply moved to a different position within the defendant's operation, as suggested by paragraph 33 of the complaint and the plaintiff's NEOC charge (Pls.' Ex. 9). I must conclude that there remains a genuine issue whether Jones suffered any adverse employment action.
In response to the defendant's argument that there is no causal link between the plaintiff's loss of absence hours and the filing of his charges, the plaintiff argues that his complaint to management regarding his loss of absence time to worship the Sabbath constituted the protected activity, rather than the filing of his charges. Jones also argues that the defendant's decision to transfer him to another job and replace him with an employee of a different religious faith, whom Jones trained, constituted the retaliatory adverse employment action. This argument is consistent with the particulars specified in Jones' charge to the NEOC (Pls.' Ex. 9). I find that the plaintiff has satisfied his burden of establishing that genuine issues exist for trial on his retaliation claim.
In its reply brief, the defendant argues for the first time that even if the plaintiff has established his prima facie case, the defendant had legitimate, nondiscriminatory reasons for the adverse actions alleged by Jones. It would be unfair to grant summary judgment in the defendant's favor based upon this argument, since the plaintiff has had neither an opportunity to respond to the argument directly nor argue that the defendant's legitimate reasons were actually pretextual. See Myre v. State of Iowa, 53 F.3d 199, 201 (8th Cir. 1995) (holding that arguments raised for the first time in a reply brief are not considered). The defendant's motion for summary judgment on Jones' retaliation claim under Title VII must be denied.
C. Nebraska Fair Employment Practice Act Claim
The parties have stipulated to the dismissal of the plaintiffs' claims under the Nebraska Fair Employment Practice Act, and these claims have been ordered dismissed without prejudice by United States Magistrate Judge David L. Piester. (Order on Final Pretrial Conference at 4 n. 1, filing 41). Therefore, the defendant's motion for summary judgment is now moot as to the plaintiffs' Nebraska Fair Employment Practice Act claim.
IT IS ORDERED that the defendant's motion for summary judgment is denied.