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Mohamed v. 1St Class Staffing, LLC

United States District Court, S.D. Ohio, Eastern Division

December 14, 2017

Abdi Mohamed, et al., Plaintiffs,
v.
1st Class Staffing, LLC, et al., Defendants.

          OPINION AND ORDER

          JAMES L. GRAHAM, UNITED STATES DISTRICT JUDGE.

         This 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 used forklifts.

         Plaintiffs do not dispute Jacobson's right to convert the space for business purposes, [1] 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).

         This 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.

         I. Facts

         A. General Background

         Plaintiffs are fourteen individuals, [2] 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.

         Jacobson 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 employees.

         Jacobson 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.

         The 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.

         Workers 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.

         The 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.

         1st 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.

         B. Plaintiffs' Religious Beliefs and Practices

         Prior 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 several years.

         In 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.

         The 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).

         Prayers 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).

         The 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).

         Women 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).

         C. Increased Production at the Facility

         Jacobson 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).

         D. Jacobson Eliminates the Prayer Space and Offers Alternate Sites

         In the 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).

         After 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).

         Later 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.[3] (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).

         At some 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).

         At 2:53 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).

         Nye 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.)

         On Tuesday, January 14 Lopez made the announcement that employees could not pray on the production floor.[4] (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).

         Lopez 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).

         A 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 24-25).

         At that 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).

         At the 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).

         Muslim 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).

         Nye and 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).

         Nye 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.)

         After 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 57).

         Diako 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).

         With 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).

         According 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).

         Diako and Lopez deny having made any threats or similar statements. (Diako Decl. at ¶ 12; Lopez Dep. at 100).

         A police officer arrived at the facility at about 6:37 p.m.[5] (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 101-02).

         Some of 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).

         With the plaintiffs having left, Jacobson shut down three production lines for the rest of the shift. (Nye Dep. at 103-04).

         Lopez 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. (Id.)

         In the 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).

         E. Plaintiffs' Reasons for Rejecting the Alternative Prayer Sites

         None of 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).

         Plaintiffs 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.[6] (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 64, 92-93).

         As for praying outside, plaintiffs believed that it was too cold, and some testified that they remembered there being snow on the ground.[7] (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. ...


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