NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________
No. 18-3710
_________________
GARY MILLER,
Appellant
v.
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY
_________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-15-cv-06370)
District Judge: Hon. Kevin McNulty
_________________
Submitted Under Third Circuit L.A.R. 34.1(a)
October 2, 2019
Before: SHWARTZ, FUENTES, FISHER, Circuit Judges.
(Filed: October 11, 2019)
_________________
OPINION**
_________________
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
FUENTES, Circuit Judge.
After being terminated, Gary Miller, a former utility systems maintainer for The
Port Authority of New York and New Jersey (the “Port Authority”), brought suit under
Title VII of the Civil Rights Act of 1964, alleging that the Port Authority failed to
reasonably accommodate his religious practices of observing the Jewish Sabbath and other
Jewish holidays. The District Court granted the Port Authority’s motion for summary
judgment, and Miller timely appealed. For the following reasons, we will affirm the
judgment of the District Court.
I. Background
Miller worked as a utility systems maintainer for the Port Authority at Newark
Liberty International Airport (“EWR”) from January 2, 2015 until his termination on
March 21, 2015. He was staffed in EWR’s Mechanical Maintenance Unit (“Unit 329”),
which is responsible for, inter alia, the operation, maintenance, and repair of utility systems
and related equipment at EWR. Unit 329 consists of fourteen utility service maintainer
positions. Four utility service maintainers with the highest seniority are assigned to work
Monday to Friday from 7:00 AM to 3:00 PM, and the remaining ten utility service
maintainers rotate shifts as part of a neutral rotational schedule.1 Utility service
maintainers select their timeslot in the rotational schedule based on seniority. Because
1
The 40-hour rotating schedule is divided by shifts. The “A” shift requires seven
consecutive days of work from 11:00 PM to 7:00 AM, followed by two regular days off.
The “B” shift requires six consecutive days of work from 7:00 AM to 3:00 PM, followed
by three days off. The “C” shift requires seven consecutive days of work from 3:00 PM to
11:00 PM, followed by two days off.
2
Miller had the lowest seniority of any utility service maintainer in Unit 329, he was
assigned to the only vacant position, which required him to work Friday evenings and
Saturdays.
At all relevant times, utility service maintainers in Unit 329 were members of the
International Union of Operating Engineers, Local 68 (the “Union”), and subject to a
collective bargaining agreement between the Port Authority and the Union (the
“Memorandum of Agreement”). The Memorandum of Agreement dictated terms and
conditions of Miller’s employment, including, but not limited to, the use of personal
excused days, use of vacation days, and changes to work schedules. The Port Authority
was not allowed to unilaterally make changes to existing works schedules under the
Memorandum of Agreement.
On January 5, 2015, Miller, as an observant of the Jewish faith, spoke with Albert
Kosakowski, Chief Maintenance Supervisor at EWR, and requested a religious
accommodation so that he not be required to work on the Jewish Sabbath, which begins at
sunset on Friday and ends at sunset on Saturday, or on Jewish holidays.2 Miller’s preferred
accommodation meant he would not work B or C shifts on Fridays and no shifts on
Saturdays. Upon being informed of Miller’s requested accommodation, Sarah McKeon,
the Manager of Airport Maintenance at EWR, consulted with Kosakowski, Maintenance
Unit Supervisor William Lynch, the Port Authority’s Office of Equal Employment
2
Miller specifically requested that he be allowed to leave work at least four hours before
sunset on Fridays, and that he be allowed not to commence work any sooner than two hours
after sunset on Saturdays. Not all holidays required that Miller miss a shift at work.
3
Opportunity, the Human Resources Department, and the Law Department. McKeon
denied Miller’s preferred accommodation because of the “critical functions of a [utility
service maintainer] and the requirement to have continuous coverage at EWR,” the
constraints imposed by the Memorandum of Agreement, potential overtime costs, and the
effect on employee morale if other utility service maintainers were required to work
additional weekend shifts.3 Thereafter, McKeon met with Miller and informed him that he
had the option of swapping shifts with other employees and using vacation days, personal
excused time, or compensatory time to observe religious holidays.4
Miller subsequently used personal excused time for religious purposes from January
2015 to late February 2015. On February 28, 2015, Miller attempted to use excused time
off to observe the Sabbath; however, the request was denied because, at the time, Miller
did not have enough excused time to cover his request. Miller did not attempt to use his
vacation time for this request. Nor is there clear evidence that Miller attempted to swap
shifts with another utility service maintainer in Unit 329. On February 28, 2015, Miller
did not appear for work and was marked absent without leave. Miller’s unexcused absence
required the Port Authority to pay overtime to another utility service maintainer to cover
Miller’s shift.
3
A. 140. While Miller contends that the Port Authority denied his request for an
accommodation on the same date he began his employment, the evidence only shows that
the Port Authority denied Miller’s preferred accommodation, not that it denied Miller any
accommodation.
4
Miller was also informed that the Port Authority would allow him to initiate more than
two mutual tour swaps, despite this being a variance from the Memorandum of Agreement.
4
Miller subsequently requested time off on four occasions in March 2015 for
religious reasons, and the Port Authority denied those requests because it required coverage
for those four shifts, Miller did not have additional personal days or compensatory time to
cover the shifts, and unpaid leave, as Miller requested, was not a permitted or recognized
form of leave. Miller did not attempt to use vacation days or utilize the option of mutual
swaps to cover these shifts.5 Despite the Port Authority denying his requests for leave,
Miller failed to appear for work and the Port Authority marked him as absent without leave.
In view of his unexcused absences, the Port Authority terminated Miller’s employment on
March 21, 2015.
Miller then filed suit, alleging that the Port Authority did not provide a reasonable
accommodation for his religious observances. The District Court granted summary
judgment for the Port Authority.6 The District Court concluded that the Port Authority
offered Miller a reasonable accommodation and that, in the alternative, Miller’s preferred
accommodation would have imposed an undue hardship on the Port Authority.7 This
appeal followed.
5
Miller testified during his deposition that he could not recall whether he attempted to
initiate mutual tour swaps. However, he also testified that, although he could not recall
their names, he spoke with other utility service maintainers but did not “find anyone to
swap with.” A. 402–03. In Miller’s declaration, he stated that he made good faith efforts
to swap shifts with other utility service maintainers. Miller did not provide any further
details concerning his purported attempts to initiate mutual swaps with other utility service
maintainers.
6
Miller v. Port Auth. of N.Y. & N.J., 351 F. Supp. 3d 762 (D.N.J. 2018).
7
Id. at 788–91.
5
II. Standard of Review8
We review the District Court’s grant of summary judgment de novo, making all
reasonable inferences in favor of the nonmoving party.9 Summary judgment is appropriate
only if there is no genuine dispute as to any material fact and the moving party is entitled
to judgment as a matter of law,10 and we may affirm the grant of summary judgment on
any basis supported by the record.11
III. Discussion
To establish a prima facie case of religious discrimination under Title VII, an
“employee must show: (1) she holds a sincere religious belief that conflicts with a job
requirement; (2) she informed her employer of the conflict; and (3) she was disciplined for
failing to comply with the conflicting requirement.”12 Once the employee satisfies these
elements, the burden “shifts to the employer to show either it made a good-faith effort to
reasonably accommodate the religious belief, or such an accommodation would work an
undue hardship upon the employer and its business.”13
The parties do not dispute that Miller established a prima facie case of religious
discrimination based on a failure to accommodate. Instead, the parties dispute whether the
8
The District Court had federal question jurisdiction over Miller’s Title VII claim under
28 U.S.C. § 1331. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.
9
Montone v. City of Jersey City, 709 F.3d 181, 189 (3d Cir. 2013).
10
Fed. R. Civ. P. 56(a).
11
See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).
12
Webb v. City of Philadelphia, 562 F.3d 256, 259 (3d Cir. 2009) (citation omitted).
13
Id.
6
Port Authority satisfied its burden of showing either that it offered Miller a reasonable
accommodation, or that doing so would impose an undue hardship.
Miller argues that the Port Authority did not offer any accommodation because he
was not told that he could use vacation time, the Port Authority made no effort to facilitate
voluntary mutual swaps with other utility service maintainers, and the Port Authority failed
to engage in an “interactive process” with Miller. We disagree.
Although “Title VII does not define what is a ‘reasonable accommodation,’” the
Supreme Court has “made clear” that “a sufficient religious accommodation need not be
the ‘most’ reasonable one (in the employee’s view), it need not be the one that the employee
suggests or prefers, and it need not be the one that least burdens the employee.”14 Simply
put, when the employer offers any reasonable accommodation, the statutory inquiry is at
an end.15
First, the Port Authority made a good-faith effort to reasonably accommodate
Miller’s religious practices by allowing him to use paid time off—including vacation,
personal excused, and compensatory time—and to utilize voluntary mutual swaps with
other utility service maintainers without restrictions.16 While Miller argues that he was not
14
Shelton v. Univ. of Med. & Dentistry of N.J., 223 F.3d 220, 225 (3d Cir. 2000) (citing
Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68–69 (1986)).
15
See id.
16
While Miller challenges these accommodations in isolation, we need not decide whether
each accommodation was reasonable in isolation because they were all offered as part of
the Port Authority’s attempt to accommodate Miller’s religious practices. See Sanchez-
Rodriguez v. AT&T Mobility P.R., Inc., 673 F.3d 1, 12–13 (1st Cir. 2012) (declining to
consider the accommodations in isolation and concluding that the employer’s combined
accommodations, including allowing the employee to swap shifts with his co-workers,
constituted a reasonable accommodation of the employee’s religious beliefs); Getz v.
7
told he could use vacation time, the Port Authority submitted evidence showing that he was
entitled to, and allowed to, take ten days of vacation time. Indeed, under the collective
bargaining agreement, new utility service maintainers are entitled to ten vacation days,
which they can start using any time after starting their employment. Miller’s paychecks
similarly reflected his accrued vacation time. Further, Miller’s claim that it would have
been “absurd” for him to have refused to take vacation time,17 especially when his requests
for time off were denied in March 2015, is unconvincing and insufficient to rebut the Port
Authority’s documentary evidence showing that Miller was entitled to use vacation time.
Indeed, Miller testified that he did not recall how many vacation days he had, not that he
was under the impression that he did not have vacation days available. Miller also testified
that it was he who designated the type of time off requested, yet the Port Authority’s
undisputed business records show that he never opted to use vacation time to accommodate
Pennsylvania, 802 F.2d 72, 73–74 (3d Cir. 1986) (concluding that the employer provided
a reasonable accommodation by allowing the employee to take religious holidays with pay
as per the collective bargaining agreement but refusing to allow the employee to work
overtime in order to accumulate additional vacation leave); see also Tabura v. Kellogg
USA, 880 F.3d 544, 555 (10th Cir. 2018) (“[The employer] sought to accommodate
Plaintiffs’ Sabbath observance through a combination of allowing them to use their
vacation and other paid time off, as well as permitting Plaintiffs to swap shifts with other
employees. Such a combination might, under the facts of a particular case, reasonably
accommodate an employee’s Sabbath observance.”); EEOC v. Firestone Fibers & Textiles
Co., 515 F.3d 307, 315 (4th Cir. 2008) (“Through various mechanisms, each significant in
their own right, [the employer] sought to assist [the employee] . . . . These accommodations
plainly satisfied Title VII.”); Thomas v. Nat’l Ass’n of Letter Carriers, 225 F.3d 1149, 1156
(10th Cir. 2000) (holding employer offered reasonable accommodation where it approved
use of leave on the employee’s day of Sabbath, permitted use of substitutes when possible,
sought a waiver from the union of the requirement that the employee work five out of six
days a week, and recommended the employee bid for other positions that would not require
work on Sabbath).
17
Appellant’s Br. at 15 (citing A. 1264).
8
his religious observances. Simply put, Miller has not provided evidence to rebut the
assertion that he was entitled to use vacation time but failed to do so.
Second, Miller argues that the Port Authority’s voluntary swap policy is not a
reasonable accommodation because the Port Authority did not make any efforts to facilitate
swaps. The record belies Miller’s claims. Kosakowski made a public announcement to
other utility service maintainers that Miller would be looking for voluntary, mutual swaps
and encouraged them to consider his request. Further, the Port Authority informed Miller
that the schedule of all utility service maintainers would be made available to him and that
a list of all Unit 329 staff with their personal telephone numbers could be found in the
“Watch Engineers Office” at EWR.18 Miller’s dissatisfaction with the Port Authority’s
efforts to facilitate mutual swaps does not create a genuine dispute as to whether the
accommodation was reasonable.19
18
A. 147.
19
Miller’s argument that the Port Authority failed to engage in an “interactive process”
with him before rejecting his preferred request for an accommodation is meritless. While
we have previously held that the Americans with Disabilities Act imposes a duty on both
an employer and employee “to assist in the search for appropriate reasonable
accommodation and to act in good faith,” Deane v. Pocono Medical Center, 142 F.3d 138,
149 (3d Cir. 1998) (en banc) (quoting Mengine v. Runyon, 114 F.3d 415, 420 (3d Cir.
1997)), we have not yet imposed a similar duty on employers for Title VII religious
accommodation claims. However, even assuming a similar duty exists under Title VII, we
agree with the District Court that the Port Authority engaged in good faith efforts by
“carefully consider[ing] the relevant factors” in arriving at a reasonable accommodation.
Miller, 351 F. Supp. 3d at 787. While Miller points to purported inconsistencies between
McKeon’s deposition testimony and her certification as to the efforts she undertook, he
does not present evidence to rebut the Port Authority’s factual assertions that McKeon
reviewed the schedules of other utility service maintainers, considered whether it was
feasible to redo the schedule to avoid Miller working Fridays and Saturdays, considered
the constraints of the collective bargaining agreement, reviewed past practices of Unit 329,
9
Therefore, we agree with the District Court that the Port Authority met its burden
of showing that it reasonably accommodated Miller’s religious practices and that Miller
failed to proffer evidence sufficient to raise a genuine issue of material fact.20 As a result,
the Port Authority is entitled to summary judgment.
IV. Conclusion
For the foregoing reasons, we will affirm the District Court’s grant of summary
judgment to the Port Authority.
and considered the impact on employee morale if certain employees were required to work
weekends in order to accommodate Miller.
20
Because we find that the Port Authority offered Miller a reasonable accommodation, we
need not reach the question of whether Miller’s preferred accommodation would have
imposed an undue hardship. Notwithstanding, for the reasons substantially stated in the
District Court’s thorough and well-reasoned opinion, we would also affirm on this basis.
10