Tabura v. Kellogg USA, Inc.

194 F. Supp. 3d 1188, 2016 U.S. Dist. LEXIS 88363, 100 Empl. Prac. Dec. (CCH) 45,598, 2016 WL 3676221
CourtDistrict Court, D. Utah
DecidedJuly 7, 2016
DocketCase No. 1:14-cv-00014-TC-PMW
StatusPublished

This text of 194 F. Supp. 3d 1188 (Tabura v. Kellogg USA, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tabura v. Kellogg USA, Inc., 194 F. Supp. 3d 1188, 2016 U.S. Dist. LEXIS 88363, 100 Empl. Prac. Dec. (CCH) 45,598, 2016 WL 3676221 (D. Utah 2016).

Opinion

MEMORANDUM DECISION AND ORDER

TENA CAMPBELL, U.S. District Court Judge

Plaintiffs Richard Tabura and Guadalupe Diaz were two employees who continually missed work mainly because they honored their religious Sabbath. Their employer, Defendant Kellogg USA, Inc. (Kellogg), fired them because of their absences; and consequently, Mr. Tabura and Ms. Diaz accuse Kellogg of religious discrimination under Title VII of Civil Rights Act of 1964, 78 Stat. 241, 253-66 (codified as amended at 42. U.S.C. §§ 2000e to 2000e-17).

Kellogg had a religion-neutral absence policy that allowed employees to use paid time off and to swap schedules. Further, Kellogg assisted Mr. Tabura and Ms. Diaz by advising them how to take advantage of them paid time off (vacation and sick time) and giving them names of co-workers who might swap or change schedules with other employees. As discussed below, under these circumstances, Kellogg did not violate Title VII.

Mr. Tabura-and Ms. Diaz assert three claims for relief: (1) disparate treatment, (2) failure to accommodate, and (3) retaliation. They now move for partial summary judgment on the failure-to-accommodate claim .(EOF No, 43), while Kellogg moves for summary judgement on all three claims (EOF No. 42). Haying considered all the [1191]*1191written and oral arguments submitted in support and opposition of the two motions, the court DENIES the Plaintiffs’ motion and GRANTS Kellogg’s motion for .summary judgment.

BACKGROUND

Mr. Tabura and Ms. Diaz are Seventh Day Adventists who, as part of their religion, abstain from working on their Sabbath, which runs from sundown Friday night to sundown Saturday night. Years ago, before 2011, they worked full schedules and participated in their Sabbath practices with no conflict. But when demand for Kellogg’s products increased, Kellogg increased production and changed its work schedule. Kellogg received some input from employees about what scheduling program it should implement, and. a majority of the employees voted for the scheme that Kellogg adopted in March 2011. The program was called “continuous crewing,” and it created four separate, rotating shifts: the A, B, C, and D shifts. Under continuous crewing, employees were to work approximately two Saturdays a month and twenty-six Saturdays a year.

If employees needed to miss work on a particular day, they could amend their schedule by using paid time off or swapping with co-workers. Of course they could choose not to show up even when scheduled to work. Kellogg had an absence policy to manage that last situation. Under this policy, employees were, assessed points for absences, and some absences were assessed more points than others. For example, an unannounced absence earned employees four points, whereas a late arrival or early departure earned them one point. As employees accrued points, Kellogg would implement its progressive-discipline program, which was a system of escalating responses that was intended to correct its employees’ behaviors. Finally, if an employee accrued sixteen points over the course of twelve months and all the established progressive-discipline measures were exhausted, Kellogg then could fire the employee.

Kellogg treated Mr. Tabura and Ms. Diaz’s Sabbath-related absences, the same as it treated .nonreligious absences. Mr. Tabura- and Ms. Diaz used paid time off and swaps to avoid earning points under the absentee program, but this did not completely eliminate the conflict between their religious practices and Kellogg’s requirements.

Every year, Mr.'Tabura had 160 hours of paid time off and those hours could cover a little over thirteen twelve-hour shifts. If he used his paid time off to observe Sabbaths only, then he still would need to cover another approximately thirteen shifts. And if he did not swap with another employee, then those thirteen shifts would result in nearly twenty-six points, ten more than the sixteen-point limit in a given year.

Ms. Diaz had 200 hours of paid time off every year. Those could cover almost seventeen twelve-hour shifts, leaving a little more than nine shifts, which would result in eighteen absentee points. Again, eighteen points were over the limit.

When Mr. Tabura .and Ms. Diaz wished to swap schedules with co-workers, it took some planning on their part. Mr. Tabura and Ms. Diaz worked on the A shift (a day shift), which was paired with the C shift (a night shift). For safety reasons, Kellogg prohibited employees from working more than a twelve-hour shift.. Accordingly, Mr. Tabura and Ms. Diaz needed to find someone from the B or the D shift to swap with. Also, the B- and D-shift employees were not at the plant when Mr. Tabura and Ms. Diaz normally worked, so to secure a swap partner required going to the plant on a day off and trying to find someone who was trained to perform their specific jobs and with whom they normally did not [1192]*1192work. To assist them, Kellogg gave them a list of workers who were appropriately-trained.

Mr. Tabura’s point accumulation

When Kellogg instituted the continuous-crewing program, Mr. Tabura trained his co-worker, Alicia Stewart, how to do his particular job, which was adding spices to the food; but one of Mr. Tabura’s supervisors, Candy Cunningham, said Kellogg needed Ms. Stewart in another part of the plant. Later, Dean Shirra, another supervisor, recommended that Mr.. Tabura swap with John Andrews, another coworker. Mr. Tabura asked Mr. Andrews if he would consider swapping schedules, but before Mr. Andrews agreed to the swap, Ms. Cunningham told Mr. Tabura that the swap could not occur.

Mr. Tabura went to speak to B-shift employees “several times,” but could not find a coworker who would swap with him. (Pls. Mem. Opp’n, at lviii, ECF No. 47.) When Mr. Tabura told Mr. Shirra that he could not find anyone willing to swap with him, Mr. Shirra did not respond and left the room.

Because Mr. Tabura had limited paid time off and he could not find a coworker to swap with, he began accruing absence points for missed Saturdays. Mr. Tabura’s first ten absence points were caused by his Sabbath observances. He then received two points for a Saturday absence on July 23, 2011, and another two points for a Saturday absence on September 13, 2011. These two absences were not related to his religious observance. After that, Mr. Shir-ra discussed with Mr. Tabura, as part of Kellogg’s progressive-discipline measures, how he had accumulated fourteen points and how two more points would result in termination.

In October, Mr. Tabura’s attorney and his pastor wrote to Kellogg requesting that the company further accommodate Mr. Tabura’s religious practice of not working on his Sabbath. Soon after that, Mr. Tabura met with his supervisors, Rebecca Serr and Mr. Shirra, to discuss the letters. Mr. Tabura feels that Ms. Serr was upset and she “scolded” him. She told Mr. Tabura that “she would not accommodate” him and that he would need to find a coworker to swap with on his own. (Tabura Dep. 250, ECF No. 52-1.) Sometime after this meeting, according to Mr. Tabura, Ms. Cunningham used harsh and “foul language” around Mr. Tabura and other employees. (Id. at 239:10-240:24.)

On November 11, 2011, Mr. Tabura forgot to punch in after lunch. He immediately told his supervisor at the time, Rosa Mendiola, and she said that she would “take care of it.” (Id. at 146:3-25.) Despite Ms. Mendiola’s statement, Kellogg issued one more point even though at one time Kellogg was more lax about clocking in after lunch. Mr.

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194 F. Supp. 3d 1188, 2016 U.S. Dist. LEXIS 88363, 100 Empl. Prac. Dec. (CCH) 45,598, 2016 WL 3676221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tabura-v-kellogg-usa-inc-utd-2016.