United States District Court, D. Nebraska
NATHANIEL D. BETHEA, an individual; Plaintiff,
ACCESS BANK, a Nebraska bank; Defendant.
MEMORANDUM AND ORDER
SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Motion for Summary
Judgment, ECF No. 36, submitted by Defendant Access Bank. For
the reasons stated below, the Motion will be granted and this
matter will be dismissed, with prejudice.
otherwise indicated, the following facts are those stated in
the parties' briefs, supported by pinpoint citations to
admissible evidence in the record, in compliance with NECivR
and Federal Rule of Civil Procedure 56.
Bank employed Plaintiff Nathaniel Bethea from December 2014,
until his termination in December 2015. Bethea applied for a
teller position on November 24, 2014. The job posting stated
that tellers at Access Bank were expected to provide customer
service, handle deposits and withdrawals, answer phone calls,
and open and close the bank. One of the listed “Major
Duties and Responsibilities” of the position was the
“ability to work on the weekend when the branch is
open.” Teller Job Description at 1, ECF No. 37-3, Page
ID 298. In Bethea's initial phone interview, interviewers
asked about Bethea's available hours and he responded
that he had “open availability.” Phone Interview
Response Notes at 1, ECF No. 37-4, Page ID 301. During the
interview and hiring process, Bethea did not inform the Bank
that he was unable to work weekends or that he required any
other scheduling restrictions.
Bank hired Bethea and he began working on or about December
8, 2014, at the Shadow Lake branch in Papillion, Nebraska.
Access Bank generally employed four tellers, including
Bethea, at that location. For safety and security, the Bank
required at least two tellers to be on duty at all times when
the Bank was open, i.e., from 9:00 a.m. until 5:00
p.m. on weekdays, and from 9:00 a.m. until noon on Saturdays.
Bank required each teller to work occasionally on Saturdays.
The Papillion branch rotated these shifts among its four
tellers, and each teller generally worked one or two
Saturdays per month. To prevent overtime costs, the Bank
typically scheduled a teller to work one half-day during the
week if the individual was scheduled to work a Saturday
his employment, Bethea worked one or two Saturdays per month.
In the months preceding his termination, Bethea was scheduled
to work, and actually worked, on several Saturdays: August
22, 2015; September 12, 2015; October 9, 2015; October 31,
2015; and November 28, 2015. Ex. 1D through 1H, ECF Nos. 37-5
through 37-9. Bethea never objected to working any of these
Saturdays. Prior to the week of December 12, 2015, Bethea
never advised the Bank that he was unable to work a Saturday
shift for which he was scheduled. Bethea did not notify the
Bank of any religious beliefs during the hiring process and
admits that prior to his time at Access Bank, he was not
around September or October of 2015, Bethea “started to
do research” and “look into it.” Bethea
Dep. 177:15-22; 181:7-17, Ex. 1A, ECF No. 37-2. As a result
of his research, Bethea began to identify as a “Hebrew
Israelite, a true Jew, ” but drew a distinction with
being “Jewish” because the suffix
‘-ish' implied an individual was “kind
of” a member of the faith. Bethea Dep. at 176:23-177:8,
Ex. 1A, ECF No. 37-2. Although Bethea had no specific church
or pastor, and had not attended traditional Jewish services,
he met weekly with two individuals, Jonathan Johnson and Ian
Cunningham, to study the Bible, watch religious videos, and
pray. Bethea described these meetings as attending
“church.” Bethea Dep. 185:17-21, Ex. 1A, ECF No.
37-2. Bethea listed Johnson as a reference on his employment
application to the Bank on November 24, 2014.
claimed his religious beliefs required him to recognize the
Sabbath- Saturday. He described his religious tradition as
“honoring the Sabbath Day, which stems from Judaism and
Christianity pertaining to the Law, New Testament, and Hebrew
Israelite customs.” Answers to Interrogs. at 5, ECF No.
37-10, Page ID 311. According to Bethea, the Sabbath was a
day to “relax, be with family, be with friends, [have]
fellowship, and take it easy.” Bethea Dep.
186:19-187:7, ECF No. 37-2. Under Bethea's interpretation
of the Sabbath, it was not a literal day of rest, as he could
meet with friends, do household chores when necessary, or
watch a movie. Bethea testified that with regards to
Saturdays, he lived a “pretty normal life, day-to-day,
like any other individual.” Bethea Dep. 188:1-10, Ex.
1A, ECF No. 37-2. However, Bethea claimed his beliefs
prevented him from working on Saturdays because
“we're not going to put money before that day [the
Sabbath]. We're not going to chase after anything that is
burdensome to us.” Bethea Dep. 186:19-25, Ex. 1A, ECF
was assigned to work on Saturday, December 12, 2015. He was
made aware of that schedule approximately two weeks before
December 12. As was typical for employees working a Saturday
shift, Bethea was scheduled to work a half-day on Monday,
December 7. On December 8, 2015, Bethea asked his supervisor,
Blaire Scott, if he could have Saturday off to observe the
Sabbath. This was the first time Bethea notified Access Bank
that his religious beliefs prevented him from working on a
Saturday. Although Bethea claims Scott was condescending in
her response, Scott stated he could have Saturday, December
12, off if he could find someone to work overtime, and open
and close accounts.
after speaking with Scott, Bethea advised Neal Krauss, Access
Bank's Vice President/Market Manager, that Bethea would
like to have Saturdays off for the Sabbath. Although Bethea
mentioned the Sabbath, he was not sure if Krauss understood
what that meant and the two did not have a detailed
discussion. Krauss reiterated Scott's message, that if
Bethea could find a replacement, he could have December 12
off. Bethea did not explain to Scott or Krauss why he could
no longer work on Saturdays despite consistently working
Saturdays for nearly a year.
December 8, 2015, Bethea sent an email to fellow teller,
Becca Strawhecker, asking her to text him. Bethea wanted her
to work for him on Saturday, December 12. When Strawhecker
texted a few minutes later, the following exchange occurred.
1N, ECF No. 37-15.
next morning, on December 9, Bethea went to Krauss's
office and asked to speak with Krauss and Scott. Bethea did
not provide any advanced notice of what he needed to discuss.
During this meeting, Bethea stated that he wanted to honor
the Sabbath by not working on Saturdays. He did not elaborate
on his request or explain his religious beliefs, nor did he
identify his religion. He did not explain the religious
beliefs underlying his request because "the atmosphere
and the vibe [he] got . . . just didn't warrant it, it
didn't feel-like, they weren't responsive to it,
initially, they didn't show any true interest in
it.” Bethea Dep. 242:13-22, Ex. 1A, ECF No. 37-2.
the meeting, Krauss requested assistance from Access
Bank's Human Resources Manager, Margie Shaffer, to
respond appropriately to Bethea's request. Shaffer,
Scott, and Bethea met later on December 9, 2015, to discuss
Bethea's proposed accommodation. The purpose of this
meeting was to facilitate a dialogue with Bethea and gather
information about what his request meant moving forward. At
the meeting, Bethea offered no further explanation for his
request or underlying religious beliefs, but advised that
going forward, he would need Saturdays off.
sent Bethea an email that recapped the group's
conversation at the meeting. Shaffer stated in the email that
the Bank requested a letter from Bethea's place of
worship, which included his membership standing,
minister's name and contact information, and the specific
requirements he needed for his proposed scheduling
accommodation moving forward. Bethea later testified that he
felt bullied during the meeting and by Shaffer's
follow-up email. Based on his conversations with Krauss,
Scott, and Shaffer, Bethea testified that he “felt [he]
was being treated very differently.” Bethea Dep.
255:9-22, Ex. 1A, ECF No. 37-2. Bethea's request was not
denied, and he knew if he was not available to work
Saturdays, the Bank would be left with only three tellers to
work that shift and would be forced to find a substitute not
otherwise scheduled to work, or hire a replacement.
evening of December 9, 2015, Scott sent an email to Shaffer
and asked Shaffer to connect with Strawhecker. On the morning
of December 10, Shaffer contacted Strawhecker, who verbally
informed Shaffer about the text message she received from
Bethea on December 8. Later that morning, Strawhecker sent an
email to Shaffer, quoting the language of Bethea's text
message. Strawhecker stated in the email that the text
message “instantly made me feel uncomfortable and
nervous about how I should respond or what I should
do.” Ex. 2C, ECF No. 37-21. Strawhecker also stated
that she was scheduled to close the Bank with Bethea that
evening and anticipated it would be “uncomfortable and
tense.” Ex. 2C, ECF No. 37-21.
immediately brought the text message and Strawhecker's
email to the attention of the Bank's Executive Vice
President & Chief Financial Officer, Dana Henricksen, and
its Chief Business Development Officer, Nathan Christ. The
Bank decided that the text was inappropriate, not conducive
to a healthy work environment, and grounds for termination
because it made an employee feel uncomfortable and afraid.
Later that morning, Krauss and Shaffer called Bethea to a
meeting. Krauss and Shaffer showed Bethea a copy of the text
message he sent to Strawhecker. Bethea admitted he sent the
text message. Krauss and Shaffer advised Bethea the text
message was not appropriate and a co-worker had complained.
On these grounds, Bethea was terminated immediately.
filed a Charge of Discrimination with the NEOC on or about
February 4, 2016. The NEOC issued a finding of no reasonable
cause and dismissed the charge. Ex. 1P, ECF No. 37-17. On
April 18, 2017, Bethea filed his Complaint asserting two
causes of action: religious discrimination and retaliation
under Title VII and the Nebraska Fair Employment Practices
Act, Neb. Rev. Stat. §§ 48-1114, 48-1119. As part
of his religious discrimination claim, Bethea alleges that
Access Bank failed to accommodate his request to avoid
working on Saturdays. On July 17, 2017, the Court dismissed
Bethea's state law claims as untimely. Access Bank now
seeks dismissal of Bethea's remaining Title VII claims.
judgment is appropriate when the evidence, viewed in the
light most favorable to the nonmoving party, presents no
genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.” Garrison
v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881, 884
(8th Cir. 2016) (citing Fed.R.Civ.P. 56(c)). “Summary
judgment is not disfavored and is designed for every
action.” Briscoe v. Cty. of St. Louis, 690
F.3d 1004, 1011 n.2 (8th Cir. 2012) (quoting Torgerson v.
City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011)
(en banc)). In reviewing a motion for summary judgment, the
Court will view “the record in the light most favorable
to the nonmoving party . . . drawing all reasonable
inferences in that party's favor.” Whitney v.
Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing
Hitt v. Harsco Corp., 356 F.3d 920, 923-24 (8th Cir.
2004)). Where the nonmoving party will bear the burden of
proof at trial on a dispositive issue, “Rule 56(e)
permits a proper summary judgment motion to be opposed by any
of the kinds of evidentiary materials listed in Rule 56(c),
except the mere pleadings themselves.” Se. Mo.
Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th Cir.
2011) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986)). The moving party need not produce evidence
showing “the absence of a genuine issue of material
fact.” Johnson v. Wheeling Mach. Prods., 779
F.3d 514, 517 (8th Cir. 2015) (quoting Celotex, 477
U.S. at 325). Instead, “the burden on the moving party
may be discharged by ‘showing' . . . that there is
an absence of evidence to support the nonmoving party's
case.” St. Jude Med., Inc. v. Lifecare Int'l,
Inc., 250 F.3d 587, 596 (8th Cir. 2001) (quoting
Celotex, 477 U.S. at 325).
response to the moving party's showing, the nonmoving
party's burden is to produce “specific facts
sufficient to raise a genuine issue for trial.”
Haggenmiller v. ABM Parking Servs., Inc., 837 F.3d
879, 884 (8th Cir. 2016) (quoting Gibson v. Am. Greetings
Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving
party “must do more than simply show that there is some
metaphysical doubt as to the material facts, and must come
forward with specific facts showing that there is a genuine
issue for trial.” Wagner v. Gallup, Inc., 788
F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson,
643 F.3d at 1042). “[T]here must be more than the mere
existence of some alleged factual dispute” between the