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Bethea v. Access Bank

United States District Court, D. Nebraska

June 15, 2018

NATHANIEL D. BETHEA, an individual; Plaintiff,
ACCESS BANK, a Nebraska bank; Defendant.



         This 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.


         Unless 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 56.1[1] and Federal Rule of Civil Procedure 56.

         Access 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.

         Access 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.

         Access 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 shift.

         Throughout 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 spiritual.

         Sometime 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.

         Bethea 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 No. 37-2.

         Bethea 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.

         Shortly 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.

         On 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.

         (Image Omitted)

         Exhibit 1N, ECF No. 37-15.

         The 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.

         Following 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.

         Shaffer 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.

         On the 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.

         Shaffer 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.

         Bethea 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.


         “Summary 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).

         In 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 ...

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