United States District Court, S.D. Ohio, Eastern Division
OPINION AND ORDER
L. GRAHAM, UNITED STATES DISTRICT JUDGE.
religious accommodation suit stems from the decision of
defendant employer Jacobson Warehouse Company, Inc. to cease
allowing Muslim employees to use an area of the production
floor for daily prayers during break times. Muslim employees
had prayed in the otherwise empty and unused area for several
years until Jacobson expanded its production lines. Jacobson
converted the area into a space where it kept inventory and
do not dispute Jacobson's right to convert the space for
business purposes,  but they challenge Jacobson's alleged
failure to offer reasonable alternative sites for prayer.
Plaintiffs contend that Jacobson made the decision to
eliminate their prayer site without warning and that the
alternate sites which Jacobson offered lacked a sufficient
measure of cleanliness and isolation from noise and foot
traffic. Because Jacobson's decision was announced soon
before plaintiffs needed to pray, plaintiffs allegedly were
left with the following choice: (1) pray in an alternate site
offered by Jacobson, but do so knowing that the prayer
performed would not satisfy plaintiffs' religious
standards; or (2) leave the workplace to go pray elsewhere,
but do so under the threat of losing their jobs if they left.
The complaint asserts claims under Title VII of the Civil
Rights Act of 1964 for failure to accommodate plaintiffs'
religious practices and for retaliation. See 42
U.S.C. §§ 2000e-2(a), § 2000e(j); 2000e-3(a).
matter is before the court on the motions for summary
judgment filed by Jacobson (and its successors in interest,
defendants Norbert Dentressangle S.A. and XPO Logistics, LLC)
and by defendant 1st Class Staffing, LLC, a staffing agency
which Jacobson utilized to hire plaintiffs. For the reasons
that follow, those motions are denied.
are fourteen individuals,  some of whom began their employment at
Jacobson as early as 2012. All are refugees - thirteen from
Somalia and one from Senegal. Each plaintiff is a practicing
Muslim of the Sunni branch.
is a logistics company that offers transportation,
distribution, warehousing and packaging services. Jacobson
provides packaging services to Mars Pet Food at a facility in
West Jefferson, Ohio, and its operations occupy a segregated
portion of the Mars facility. Jacobson controls a production
floor, breakroom with adjacent restrooms, business office for
management personnel, lobby/reception area and an enclosed
outdoor patio. An outdoor parking lot is available to
directly employs management- and supervisory-level staff, but
it uses staffing agencies to employ the production workforce.
During the relevant timeframe, 1st Class supplied between 250
and 400 employees, including plaintiffs, to work as
“line associates” on ten or more production
lines. Line associates performed “pick and pack”
duties, which involved removing cans of pet food from cartons
and repackaging them for retail sale. The repackaged products
were placed onto pallets and transported to a shipping area
within the Mars facility.
production lines operated from Monday through Thursday on two
shifts. First shift ran from 5:00 a.m. to 3:30 p.m. and
second shift ran from 4:00 p.m. to 2:30 a.m. The first shift
had 200 to 220 line associates and the second shift had 100
to 150. All of the plaintiffs worked second shift.
on each shift received two 15 minute breaks and a 30 minute
lunch break. Each break was conducted in two stages, such
that half of the second shift employees took their first 15
minute break at 6:00 p.m. and the other half took theirs at
6:15 p.m. The lunch breaks were taken at 9:00 p.m. and 9:30
p.m. and the second round of 15 minute breaks took place at
1:00 a.m. and 1:15 a.m.
General Manager for Jacobson at the Mars facility was Paul
Hanna. Reporting to Hanna was Operations Manager David Nye.
Jacobson assigned supervisors over the production lines. One
of the production line supervisors was Sileymane Diako, a
native of Senegal who was assigned to the second shift during
the events at issue.
Class had one or more onsite managers who maintained an
office within Jacobson's business office at the Mars
facility. These onsite managers performed support functions
such as conducting job interviews, processing payroll and
providing a job orientation session. One of 1st Class's
onsite managers was Alba Lopez.
Plaintiffs' Religious Beliefs and Practices
to any of the plaintiffs' arrival at Jacobson, Muslim
employees had used an empty area of the production floor to
perform prayers during their breaks. Plaintiffs testified
that they used this area to pray when they began their
employment because they observed other Muslim employees
already doing so without objection from supervisors. The area
was situated near the breakroom and was approximately 20 feet
by 30 feet in size. Defendants do not dispute that Muslim
employees had been allowed to use the area to pray for
Islam, salat or ritual prayer is an expression of
sincere faith. Muslims are to perform salat five
times a day. Of importance to this case are two of the five
prayers: the maghrib or sunset prayer and the
isha or evening prayer. The sunset prayer is to be
performed at dusk after the sun has set completely beneath
the horizon. The evening prayer is to be performed after
twilight has disappeared and before midnight. Punctual
performance of each prayer is expected, although some
flexibility is allowed in order to accommodate the
worshiper's circumstances, such as work conditions. Many
Muslims believe that they have a window of time in which to
perform the prayers. (Expert Report of Kathleen Moore at
14-15). In January 2014, plaintiffs performed the sunset
prayer during their 6:00 p.m. break and the evening prayer
during their 9:00 p.m. lunch break.
performance of ritual prayer involves several cycles of
recitation while facing in the direction of Mecca. The cycles
consist of a sequence of movements, including standing,
kneeling, prostrating and sitting while reciting verses from
the Qur'an. It took plaintiffs between three and five
minutes to perform a prayer. (Ega Dep. at 60-61).
are to be performed in a clean space, free from human or
animal bodily fluids and free from items such as cigarette
butts, chewing gum and food wrappers and containers. (Moore
Report at 16, 20). To create separation from the floor,
plaintiffs placed a prayer mat or piece of cardboard on the
floor and performed their prayer on top of the mat. (Ega Dep.
at 24-25; S. Abdi Dep. at 89-90).
prayer space must also be free from distraction because a
prayer is invalidated when the penitent's concentration
is broken. (Moore Report at 16). It is important that other
people not cross in front of the penitent, to avoid both the
risk of distraction and the appearance that the penitent is
praying to a human being. (Id. at 17). Because the
penitent prays with his eyes open, it is common for a Muslim
to pray facing a barrier, such as a wall or curtain.
(Id. at 18). The use of a barrier to create a prayer
space is referred to as “satura.” (Id.)
Praying outdoors or in a wide-open space with no barrier is
disfavored. (Id. at 18-19).
are to maintain separation from men when praying. If women
and men are praying in the same area at the same time,
separation is achieved by the women praying behind the men or
by using a curtain or other movable barrier. (Moore Report at
20). During the second shift breaks, there were sometimes as
many as 20 to 30 Muslim employees needing to pray and
sometimes as few as 5. (S. Abdi Dep. at 96-97; Abikar Dep. at
78). Depending on when and how many Muslim employees arrived,
they would pray in small groups, taking turns if necessary.
(Abikar Dep. at 17-18, 76-77; Alin Dep. at 47). The area of
the production floor that plaintiffs used for prayer was
large enough for a small group of men to pray in front and a
small group of women to pray in back. (S. Abdi Dep. at 91-93;
Abikar Dep. at 76-77).
Increased Production at the Facility
began increasing production in September 2013. (Nye Decl. at
¶ 4). It added four production lines, installed a baler
machine for waste cardboard and created a quality control
area. (Id. at ¶¶ 4-5). Over the following
months the space that plaintiffs had used to pray decreased
in size as Jacobson installed 28-foot tall racking to store
inventory and designated a forklift aisle in the area in late
2013. (Id.) A smaller area remained where Muslim
employees prayed in November and December 2013. (Nye Dep. at
65-66). By the end of the year, it was “full of stuff,
” including pallets. (Id. at 66, 70).
Jacobson Eliminates the Prayer Space and Offers Alternate
morning of Thursday, January 9, 2014, Nye observed a Muslim
employee praying in the forklift aisle located at or near the
space that had been used for prayer. (Nye Dep. at 66-67).
This raised safety concerns. (Id. at 67). Nye stood
nearby for a few minutes to ensure that the employee could
safely finish her prayer. (Id. at 68-69). He then
went to Hanna and informed him of what he had observed.
(Id. at 69).
Nye told Hanna about seeing an employee praying in the
forklift aisle, Hanna examined the area and decided that
employees would no longer be able to perform prayers on the
production floor because it was unsafe. (Hanna Dep. at 88;
Nye Dep. at 70-71). He instructed Nye to think about
“other options . . . for areas that they could pray
in.” (Nye Dep. at 71).
in the day on January 9, Nye returned to discuss possible
alternate prayers locations with Hanna. (Nye Dep. at 78).
They decided that Muslim employees would be allowed to pray
in the breakroom, the lobby, a fenced-in patio area and the
parking lot and adjoining grassy areas outside. (Hanna Dep. at
94-95; Nye Dep. at 75-76). Both Hanna and Nye had previously
seen Muslim employees pray in the breakroom and lobby, and
Hanna believed he had seen them praying outside. (Hanna Dep.
at 89-91; Nye Dep. at 42, 51).
point on January 9, Hanna or Nye (or both) approached 1st
Class manager Alba Lopez and told her that employees would no
longer be allowed to pray on the production floor. (Lopez
Dep. at 28; Nye Decl. at ¶ 10). Lopez remembers being
told that “it was a safety issue” because of the
forklifts, increased production and lack of space. (Lopez
Dep. at 42). She was told that employees would be allowed to
pray in the breakroom, lobby, the fenced-in patio and
outdoors. (Id. at 43, 66).
p.m. on January 9, Nye sent an email to Lopez and copied four
Jacobson supervisors, including Sileymane Diako. The email
stated, “Starting on Monday, Alba is going to be
telling all employees that when they pray, they must do so
inside the breakroom. If you see them on the floor you need
to remind them. It is too unsafe for them to be on the
floor.” (Doc. 47-5).
spoke with Lopez shortly after sending the email. (Nye Dep.
at 83). He explained the reason why employees would not be
able to pray on the production floor and “explained
exactly where . . . they could pray.” (Id.)
Tuesday, January 14 Lopez made the announcement that
employees could not pray on the production
floor. (Lopez Dep. at 59; Diako Decl. at
¶4). She was not aware of any first shift Muslim
employees who prayed during their breaks, and she made the
announcement at the normal production meeting with employees
about five minutes before the start of second shift at 4:00
p.m.. (Lopez Dep. at 48-49, 63-64, 69; Diako Dep. at 80).
After making general announcements and releasing most
employees, she asked Muslim employees to stay behind to hear
the announcement regarding the prayer space. (Abikar at
97-98; Ega Dep. at 45-46). Diako and another line supervisor,
Adrian Juarez, were present at the meeting. (Diako Dep. at
67). Two of the plaintiffs, Shamey Abdi and Samba Diop, were
not present for the meeting but did report for work. (S. Abdi
Dep. at 21; Diop Dep. at 58).
told the employees that they could pray in the breakroom,
lobby, patio or outside. (Lopez Dep. at 59; Diako Dep. at
77-79). These were the locations that Hanna had told her were
acceptable. She also told them that they could pray in the
restrooms, though Hanna had not included restrooms on his
list. (Lopez Dep. at 59, 61). Lopez, who is Hispanic and
describes herself as being reasonably proficient in speaking
English, spoke to the Muslim employees in English.
(Id. at 6).
couple of the Muslim employees who understood English - Hamdi
Abikar, Abdullahi Aden and Ahmed Ega - translated for the
rest of the group. (Lopez Dep. at 68; I. Abdi Dep. at 17;
Farrah Dep. at 27; Hajin Dep. at 28-29). Abikar and Ega
recall being told that they could pray in the breakroom,
lobby, restrooms or outside. (Abikar Dep. at 99-100; Ega Dep.
at 37-39). One plaintiff recalls that upon hearing the
breakroom being offered as an alternative, a member of the
group suggested that the Muslim employees be allowed to take
their break either 15 minutes early or 15 minutes late so
they could have the breakroom to themselves. (Ismail Dep. at
23-28; 77-78). Lopez rejected this idea. (Id. at
point before the start of the shift, the Muslim employees
understood that they could no longer pray on the production
floor, but some did not have an understanding of what
alternate prayer sites would be available. (Aden Dep. at 38;
Farrah Dep. at 26-27; Hajin Dep. at 29-30). When they either
asked about where they could pray or stated concerns about
the alternatives that Lopez had given, they were told that it
was time to start their shift and that the matter would be
discussed at the break. (Abikar Dep. at 101; Aden Dep. at 38;
Ega Dep. at 50-51; Farrah Dep. at 27; Hajin Dep. at 30).
beginning of the 6:00 p.m. break, plaintiffs Hamdi Abikar and
Rooda Alin went to perform their prayers at their usual spot,
despite having heard the announcement. (Abikar Dep. at 102;
Alin Dep. at 45-46). A Jacobson employee, possibly a forklift
driver, attempted to stop Abikar from praying there and
pushed Abikar with his hands. (Abikar Dep. at 101-02). Abikar
insisted on praying and performed his prayer while the
Jacobson employee went to report to supervisors what was
happening. (Abikar Dep. at 101-02). Apparently, Alin
performed her prayer as this was going on. (Alin Dep. at
45-46). Soon, two forklift drivers and at least one 1st Class
representative arrived at the area. (Abikar Dep. at 102; Alin
Dep. at 29; Hajin Dep. at 30-31). Alin states that they
loudly told her not to pray there anymore and that she felt
threatened because they were so loud and close to her. (Alin
Dep. at 29, 33; Alin NLRB Aff. at p. 2). Plaintiff Mohamed
Hajin came to pray but was blocked from doing so by the
forklift drivers. (Hajin Dep. at 30-31).
employees began to congregate nearby in the breakroom and
lobby area. About 25 employees gathered. (Abikar Dep. at 105;
Aden Dep. at 64-65; Farah Dep. at 37; Lopez Dep. at 74; Nye
Dep. at 98, 117; Nye Decl. ¶ 11). The employees
expressed their desire to pray in the same place they had
been praying and asked where else they could pray. (Aden Dep.
at 64; Ega Dep. at 55). Lopez came out into the lobby after a
female Muslim employee came to her and asked where she could
pray. (Lopez Dep. at 70-74) (testifying that she told the
employee that she they could not pray on the production floor
but could pray in the breakroom or lobby). According to
Lopez, the employees were loudly complaining about where they
could pray but she could not understand much of what they
were saying. (Id. at 74-75). According to Aden,
either Lopez or another 1st Class representative said that
the Muslim employees could pray in the breakroom, lobby or
outside. (Aden Dep. at 64). Aden and others responded that
they could not pray in those places because of the noise, the
foot traffic with people passing in front of them and the
lack of sufficient room for men and women to pray separately.
(Id.) Ega remembers the employees expressing to
management that the breakroom and lobby were not acceptable
because of the noise, people walking around and people
eating; they also said that it was too cold to pray outside.
(Ega Dep. at 39). Lopez could tell that they were objecting
to the breakroom and lobby because “there's a lot
of noise and people, ” but she did not know why they
objected to the outside. (Lopez Dep. at 74, 81-82).
Diako came to scene after hearing the commotion. Someone,
possibly Lopez, told Nye that the Muslim employees were upset
about not being able to pray in their old location. (Nye Dep.
at 95; Lopez Dep. at 75-76). The employees were loud and
largely speaking Somali. (Nye Decl. at ¶ 11; Diako Decl.
at ¶ 5).
tried to “have a conversation with the group in the
lobby area, but they . . . [were] yelling or cursing
something . . . and everyone was kind of going back and forth
yelling.” (Nye Dep. at 95-96). Nye understood enough to
know that they were questioning why they could not pray, and
he told those with whom he could speak one-on-one that they
could pray in the breakroom, lobby, patio or outside.
(Id. at 96, 118; Nye Decl. at ¶ 11). He heard
some of them say that they could not pray in the breakroom or
lobby because there would be “other people in the
room.” (Nye Dep. at 97-98). In Nye's view, people
were nearby plaintiffs even when they prayed in the old spot,
so he could not understand why they had an issue with the
proposed alternatives. (Id.) But Nye felt unable to
have a “rational conversation” with the group
because they were “aggressive and upset.” (Nye
Dep. at 118-20; Diako Decl. at ¶ 6). Some employees
tried to negotiate with Nye to be able to pray in the old
spot again, offering to sign a waiver of liability if they
got hurt praying there. (Nye Dep. at 98-99). Nye rejected
this proposal. (Id.)
several minutes, the group began moving outside. (Aden Dep.
at 69; Ega Dep. at 57). It is unclear to what extent they
were instructed to go outside or were independently preparing
to leave work because, in their view, they had no place to
pray at the facility. (Abikar Dep. at 32) (stating that Diako
told the group to go outside); (Aden Dep. at 77-78)
(testifying that he had already grabbed his coat and
belongings because he needed to leave work since he did not
have an acceptable place to pray); (Diako Dep. at 107)
(testifying that the employees were leaving on their own);
(Hussein Dep. at 23) (stating that employees were
“pushed out”). According to Ega, the break time
was almost over and Diako told them to either go back to work
or to leave, “so people started to leave. They were
grabbing their food and stuff like that and their prayer mats
and everybody was going outside . . . .” (Ega Dep. at
followed the group outside to try to “talk and calm
people down and convince them to stay.” (Nye Dep. at
102). Diako felt that he, as an African, had a connection
with the Muslim employees and knew how to talk to them.
(Diako Dep. at 75, 97-98, 109). Some of the employees were
shouting that if they could not pray, they would “no
longer work for this company.” (Aden Dep. at 80). A
couple of the English-speaking employees again served as
translators. (Aden Dep. at 81-82; Alin Dep. at 31; Hajin Dep.
at 37; Diako Decl. at ¶ 9). Diako states that he
explained that they could pray in the breakroom or lobby.
(Diako Decl. at ¶ 7). Aden does not recall Diako having
said what the alternatives were, but Aden acknowledges that
he was fully aware by that point that the options were to
pray in the breakroom, lobby or outside. (Aden Dep. at
82-83). Diako understood that their objection to praying in
the breakroom was that there too many people for them to
concentrate. (Diako Dep. at 141-42).
the break period at an end, Diako asked the group to go back
to work and said that the next day he would talk to a
supervisor about finding a place to pray. (Nye Dep. at 103;
Abikar Dep. at 36; Aden Dep. at 81-82; Diako Dep. at 115).
Diako offered that the group could appoint a couple of
representatives to talk to one of Diako's supervisors the
next day. (Abikar Dep. at 33; Hajin Dep. at 38). Diako said
that he could not guarantee a specific location where they
could pray. (Aden Dep. at 83).
to many of the plaintiffs, representatives of the defendants
told them that if they left work to go pray, they would be
fired. Plaintiffs' accounts vary somewhat concerning who
made that statement and how it was said, but most plaintiffs
agree that the gist of what they were told is that they would
lose their jobs if they left work to go pray. Some recall
Diako directly stating “[I]f you're not going back
to work, you are fired.” (Abikar Dep. at 34; Hajin Dep.
at 39). Others do not remember Diako using the word
“fired, ” but do recall him saying something
similar, such as, “If you leave now, you'll never
come back” or that they would not be allowed back to
work. (Ismail Dep. at 70; Ega Dep. at 73-75). Some plaintiffs
recall Lopez or a “Hispanic supervisor” (which
could be either Lopez or Jacobson line supervisor Adrian
Juarez) telling the group something to the effect of,
“[I]f you leave now you will lose your job” or,
“If you go tonight and not back to work, never come
back here.” (Mumin NLRB Aff. at p. 2; Aden Dep. at 85;
Alin NLRB Aff. at p. 2). Other plaintiffs do not remember
hearing a direct threat as such, but felt compelled to leave
because they felt like they had no acceptable place to pray
at work. (S. Abdi Dep. at 51; I. Abdi Dep. at 52; Hussein
Dep. at 35).
and Lopez deny having made any threats or similar statements.
(Diako Decl. at ¶ 12; Lopez Dep. at 100).
police officer arrived at the facility at about 6:37
(Doc. 69-10). Nye saw the officer, who seemed puzzled as to
why so many employees were standing outside. (Nye Dep. at
100). Nye walked out and explained to him what was going on.
(Id.) Once Diako had finished talking to the group,
the officer told the group to either return to work or go
home. (Abikar Dep. at 34; Aden Dep. at 87; Nye Dep. at
the employees - perhaps as many as seven to ten - decided to
return to work, but none of the plaintiffs did. (Diako Dep.
at 113; Diako Decl. at ¶ 11). For plaintiffs, waiting
until the next day did not solve the problem of how they
would perform their sunset and evening prayers that night.
They told Diako, “We cannot wait. It's against our
religion to miss one prayer and you're telling us to miss
two prayers.” (Abikar Dep. at 33). Others said,
“[I]f we [a]re not praying tonight, we are not going
back to work.” (Aden Dep. at 84; Alin Dep. at 31).
the plaintiffs having left, Jacobson shut down three
production lines for the rest of the shift. (Nye Dep. at
testified that she interpreted the act of plaintiffs leaving
the facility as them quitting and abandoning their jobs.
(Lopez Dep. at 101). 1st Class treated the plaintiffs as
being terminated because they had abandoned their jobs.
days that followed, several plaintiffs called or came to the
facility and spoke with 1st Class representatives. Plaintiffs
say they were uniformly told that they could not come back to
work. (Aden Dep. at 86; S. Mohamed Dep. at 123; Hare Aff. at
¶ 12; Ismail Aff. at ¶ 13). According to Alin, she
was told, “If you are from last night's shift, you
can't come back. (Alin Dep. at 34).
Plaintiffs' Reasons for Rejecting the Alternative Prayer
the plaintiffs attempted to pray in the areas offered by
Jacobson. (Abikar Dep. at 39-40; Ismail Dep. at 71).
Plaintiffs viewed the proposed alternate prayer sites as
simply unacceptable. (Ega Dep. at 61) (“How are you
going to try? It's not allowed. It's not even
clean.”); (Ismail Dep. at 71-72) (characterizing the
alternatives as not places to pray); (Mumin Dep. at 79)
(stating that the alternatives were the equivalent of being
“refused to pray”). They found the breakroom to
be unsuitable for several reasons: (1) not being able to
concentrate because of the large number of employees using
the breakroom, with people walking around and the noise made
from people talking, using the microwave and eating, (Aden
Dep. at 90; Ega Dep. at 58; Ismail Dep. at 120, 130); (2) the
space not being clean because of people eating food, (Ega
Dep. at 59; Ismail Dep. at 71); and (3) not having enough
space to pray, particularly for men and women to pray
separately, (S. Abdi Dep. at 60; Farah Dep. at 50).
had similar objections to praying in the lobby. The foot
traffic in the lobby caused noise and created a risk of
someone walking in front of a plaintiff as they prayed. It
also made the floor dirty and unclean. (Abikar Dep. at
27-28; Aden Dep. at 64, 92-93; Ega Dep. at 61-62; Hajin Dep.
at 31). Moreover, the lobby lacked enough space for men and
women to pray separately. (Abikar Dep. at 27-28; Aden Dep. at
praying outside, plaintiffs believed that it was too cold,
and some testified that they remembered there being snow on
the ground. (I. Abdi Dep. at 53; S. Abdi Dep. at 45;
Abikar Dep. at 23, 34; Aden Dep. at 51-52, 96; Ega Dep. at
62, 66-67; Farah Dep. at 39-40; Hajin Dep. at 40). According
to Ega, they could not pray on the grassy areas because
“ice was covered everywhere.” (Ega Dep. ...