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Cherry v. Sunoco


August 17, 2009


The opinion of the court was delivered by: Rufe, J.


Plaintiff John Cherry brings this action against Defendant Sunoco, Inc. alleging that Defendant engaged in religious discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"),*fn1 and the Pennsylvania Human Relations Act ("PHRA"),*fn2 when it terminated Plaintiff for refusing to pose for a photograph to be used in a photographic identification credential ("photo ID"). Before the Court are Defendant's Motion for Summary Judgment,*fn3 Plaintiff's Response*fn4 and Defendant's Reply.*fn5 For the reasons that follow, the Court will grant Defendant's Motion.


On or about March 26, 2001, Defendant hired Plaintiff as a refinery operator at its Philadelphia refinery.*fn6 Defendant's Philadelphia refinery is a large oil refining facility located on the banks of the Schuylkill River.*fn7 It is a massive facility that resides on approximately one thousand acres of land and employs over 1,500 employees.*fn8 As a refinery operator at the Philadelphia facility, Plaintiff was a member of the Paper, Allied-Industrial, Chemical and Energy Workers International Union ("Union").*fn9

When Plaintiff was hired, Defendant had a policy in place that required its employees to have photo ID.*fn10 Plaintiff was granted an exception to this rule because of his religious beliefs.*fn11 Specifically, Plaintiff is a member of the Church of the True and Living God, a sect of Hebrew Israelites.*fn12 Plaintiff believes that the Second Commandment prohibits him for posing for pictures or photographs, and from carrying the same upon his person.*fn13 It is not against Plaintiff's religion to have a photograph taken of him without his consent, as long as he is not posing for it.*fn14 Plaintiff has never willingly posed for a photograph.*fn15 From 2001 up and until the events in question, Defendant provided Plaintiff with an employee ID without a photograph.*fn16 Even after the events of September 11, 2001, Defendant still accommodated Plaintiff's refusal to pose for a photograph, but required him to report to security when he came into work to show his badge.*fn17 Plaintiff's supervisor would sometimes verify Plaintiff's identify if the security guard on duty did not know Plaintiff.*fn18

Of the many operating units at the Philadelphia refinery, Plaintiff worked in the catalyst cracking unit, which was responsible for heating and condensing crude oil.*fn19 When Plaintiff arrived at work each day, he would first go through the security gate and swipe his employee ID to gain access to the refinery.*fn20 After going through the security gate, Plaintiff would walk about two minutes to report to his work location, Building 868 or the "block house."*fn21 Plaintiff worked a twelve-hour shift, ten of which he spent in the block house.*fn22 The remaining two hours he spent at other work locations inside the refinery.*fn23

In 2002, Congress enacted the Maritime Transportation Safety Act ("MTSA").*fn24 The United States Coast Guard then enacted regulations "to implement portions of the maritime security regime" as required by the MTSA ("Regulations").*fn25 Defendant was required to be in compliance with the MTSA and these Regulations on or before June 30, 2004.*fn26 Complying with the new Regulations, Defendant developed a Facility Safety Plan ("FSP"),*fn27 which required all employees at the Philadelphia refinery to carry photo IDs.*fn28

Prior to the effective date of the FSP, William Capresecco, Defendant's Manager of Human Resources for the Philadelphia refinery, informed the president of Plaintiff's local Union that all employees would have to have photo ID and that it was required by law.*fn29 On June 4, 2004, Mr. Capresecco also provided Plaintiff's Union representative with a copy of the "section of the MTSA that the company used in developing its 'new' security guidelines."*fn30 On or about August 10, 2004, Plaintiff was informed that because of the implementation of "some different laws," he would have to pose for a photograph for identification purposes.*fn31 Plaintiff refused and as a result, a conference was scheduled for the following Friday.*fn32

The following persons attended a meeting held on or about August 13, 2004: Plaintiff; Gerry McBride, the superintendent of Plaintiff's unit;*fn33 Jim Savage, Plaintiff's Union represenative;*fn34 Mr. Capresecco;*fn35 and Megan Kuzinski, a human resources analyst.*fn36 At the meeting, Plaintiff was again informed that Defendant was requiring a photo ID for all employees and that he must pose for a photograph in order to continue his employment with Defendant.*fn37 Plaintiff continued to refuse, explaining that his religious belief dictated his refusal and submitting a corresponding letter from his church.*fn38 Mr. Savage asked if Plaintiff could present his driver's license in conjunction with his current employee ID without a photo.*fn39 It was reiterated that Plaintiff needed to have a photo ID as a result of a new law and/or regulations.*fn40 According to Plaintiff, he then requested to see the law, but was told a copy was not on hand.*fn41 In his deposition, Plaintiff also testified that during the meeting he suggested that his identification could be verified by his supervisor, as it had in the past.*fn42

At the end of the meeting, Mr. Capresecco suspended Plaintiff without pay.*fn43 In his deposition, Plaintiff testified that Mr. Savage objected to his suspension, as they were not shown any documents proving that a photograph was required and he himself did not know of and had not seen any such documents.*fn44 During his deposition, Plaintiff stated several times that he was unaware of the MTSA and its Regulations until right before his arbitration hearing.*fn45 By letter dated August 19, 2004, Plaintiff was terminated for his refusal to comply with employee identification requirements, effective as of the date of that letter.*fn46 The Union filed a grievance upon Plaintiff's behalf, and it proceeded to arbitration.*fn47 At some point prior to the arbitration of the grievance but after Plaintiff's termination, Mr. Savage did obtain a copy of the Regulations and provided the same to Plaintiff.*fn48

During the arbitration hearing, Defendant called William Towers to testify.*fn49 In the summer of 2004, Mr. Towers was the operations supervisor for the implementation and execution of the MTSA.*fn50 As part of his job duties, Mr. Tower ensured that Defendant's facilities, including the Philadelphia refinery, were in compliance with the FSP and the MTSA.*fn51 Mr. Towers testified that the Philadelphia refinery was covered by the MTSA as a port facility.*fn52 Mr. Towers also testified that in July of 2004, he contacted the chief petty officer of the Coast Guard who was in charge of the Philadelphia refinery.*fn53 He asked him if the photo ID requirement could be waived and was told that it could not be waived.*fn54 According to Mr. Towers, the Philadelphia refinery was inspected or audited almost every day by the Coast Guard, the Department of Homeland Security or the border patrol with Customs.*fn55 Mr. Towers testified that a photo ID would be necessary for the identification of an employee after entering the Philadelphia refinery due to the constant audits and inspections, as well as any additional security measures that may be required.*fn56

With regard to accommodating his religious beliefs, Plaintiff stated in his response to Defendant's interrogatories that prior to his termination, in addition to suggesting a supervisor verify his identity and that he show his non-photo driver's license, he also suggested that he be escorted to his work location rather than proceeding unescorted.*fn57 During the grievance process, Plaintiff claims he suggested his religious beliefs be accommodated using biometric identification, such as fingerprints or iris scan, which he offered to pay for at least in part.*fn58 Finally, according to his response to Defendant's interrogatories, Plaintiff also offered to allow his photographic image to be captured by security cameras.*fn59 Plaintiff admitted at his deposition that he has no direct knowledge of Defendant's security systems beyond the process of entering the Philadelphia refinery through the security gates.*fn60 Defendant contends that Plaintiff requested no other accommodation beyond eliminating the photo identification requirement.*fn61

After Plaintiff's grievance was denied by the arbitrator, Mr. Savage advised him to file a complaint with the Pennsylvania Human Resources Commission ("PHRC").*fn62 As part of the PHRC's investigation into Plaintiff's complaint, further clarification on the Regulations was requested from the Coast Guard, specifically whether the requirement for a photo ID could be waived or any accommodation made.*fn63 The Coast Guard responded in the negative, stating:

There is no exception to these minimum standards, nor any allowance for accommodation. Verifying a person's identity is a key component of our maritime security regulatory regime. It is imperative that any form of personal identification presented allow for the accurate verification of the identity of the person presenting the piece of identification. Without a photograph the identity of the presenter cannot be verified with sufficient certainty to meet this aspect of the regulation.*fn64

Plaintiff's PHRC complaint was ultimately dismissed.*fn65 Plaintiff then filed his Complaint with this Court on June 4, 2007.*fn66 Defendant filed a motion to dismiss Plaintiff's Complaint,*fn67 which the Court denied.*fn68 Defendant answered Plaintiff's Complaint on May 2, 2008.*fn69 On December 17, 2008, Defendant moved for summary judgment on all of Plaintiff's claims.*fn70 The Court has considered Defendant's Motion for Summary Judgment, Plaintiff's Response, the Reply and all accompanying materials, and this matter is now ready for disposition.


Summary judgment is appropriate if "there is no genuine issue as to any material fact and... the moving party is entitled to judgment as a matter of law."*fn71 An issue of material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party."*fn72 In examining these motions, all inferences must be drawn in the light most favorable to the nonmovants, and their allegations must be treated as true whenever they conflict with those of the movants and are supported by proper proofs.*fn73 The Court will not, however, make any credibility determinations or weigh the evidence presented.*fn74

The party moving for summary judgment bears the initial burden of demonstrating that there are no genuine issues of material fact.*fn75 Once the movant has done so, the opposing party cannot rest on its pleadings.*fn76 To defeat summary judgment, the non-movant must come forward with probative evidence demonstrating the existence of genuine issues for trial.*fn77 The non-movant therefore must raise "more than a mere existence of a scintilla of evidence in its favor" for elements on which it bears the burden of production.*fn78 An inference based upon speculation or conjecture will not create a material fact.*fn79


As explained supra, Congress enacted the MTSA in 2002,*fn80 and the Coast Guard then issued Regulations to implement the same.*fn81 Defendant's Philadelphia refinery, as a port facility, was required to comply with both.*fn82 Key to the Regulations is the definition of three different levels of security measures that a port facility must maintain based upon the prevailing threat environment.*fn83

The lowest of these Maritime Security Levels, or "MARSEC Levels," is MARSEC Level 1.*fn84 The security measures required by MARSEC Level 1 are considered the minimum and must be maintained at all times.*fn85 MARSEC Levels 2 and 3 only add additional security measures to those required by MARSEC Level 1, without eliminating anything.*fn86 Thus, any security measure required at MARSEC Level 1 must be in place at all times.

Each port facility is required to establish the "means of identification required to allow access to the facility and for individuals... to remain on the facility without challenge."*fn87 Yet, the system established for checking the identity of facility employees or and other persons seeking access to the facility must also allow "identification of authorized and unauthorized persons at any MARSEC Level."*fn88 At MARSEC Level 1, port facilities must "check the identification of any person seeking to enter the facility, including... facility employees."*fn89 Moreover, a person must be denied access to or removed from the port facility if that person "is unable or unwilling, upon the request of facility personnel, to establish his or her identity...."*fn90 Crucial to the matter at hand, the Regulations dictate that for the purposes of gaining access to a port facility, "[a]ny personal identification credential accepted... must, at a minimum... (3) Contain a photo that accurately depicts that individual's current facial appearance."*fn91 Thus, the Regulations require that in order for persons, including facility employees, to gain access to a port facility, they must have proof of identification that includes a photograph of that person's face.

Noncompliance by a port facility with the Regulation could result in "(1) restrictions on facility access; (2) conditions on facility operations; (3) suspension of facility operations; (4) lesser administrative and corrective measures; or (5) suspension or revocation of security plan approval, thereby making that facility ineligible to operate in, on, under or adjacent to waters subject to the jurisdiction of the U.S. in accordance with 46 U.S.C. § 70103(c)(5)."*fn92 Any person who does not comply with the Regulations is "liable to the U.S. for a civil penalty of not more than $25,000 for each violation."*fn93


Defendant asserts that it is entitled to summary judgment on Plaintiff's Title VII claims because Plaintiff cannot establish a prima facie case of religious discrimination. Moreover, Defendant contends that even if Plaintiff could demonstrate a prima facie case, it would still be entitled to summary judgment as it could not accommodate Plaintiff without suffering undue hardship. Plaintiff argues that he has set forth a prima facie case of religious discrimination. Moreover, Plaintiff maintains that Defendant could have accommodated his religious beliefs without undue hardship, and forwards several possible means by which Defendant could have done so. The Court will address each of these arguments in turn.

A. Plaintiff Cannot Establish a Prima Facie Case of Religious Discrimination

In order to demonstrate a prima facie case of religious discrimination, an employee must show that he/she: (1) holds a sincere religious belief that conflicts with a job requirement; (2) notified the employer of the conflict; and (3) was disciplined for failing to comply with the conflicting requirement.*fn94 Here, it is not disputed that Plaintiff has a sincere religious belief, that he notified Defendant that his belief conflicted with the requirement that he take a photo, and that he was terminated for not complying with the same. However, Defendant asserts that Plaintiff has not "demonstrated that a religiously motivated practice conflicts with an employment requirement."*fn95

Defendant argues that the requirement of a photo ID is not mandated by Defendant, but rather is a requirement of the Regulations and federal law.*fn96 Thus, it is not an employment requirement and Plaintiff cannot demonstrate a prima facie case of religious discrimination.

The Court notes that the Third Circuit has not yet adopted the definition of "employment requirement" advanced by Defendant, a definition defined so narrowly as to only encompass those requirements that are employer mandated.*fn97 Moreover, the cases cited by Defendant in support of its contention are all in the context of an employee refusing to provide an employer with a social security number.*fn98 None of these cases contains language even implying that its holding should be extended beyond the narrow factual basis for the same. Moreover, the analysis in each of the cases did not stop when it was determined the employee had not established a prima facie case of religious discrimination. Instead, the courts examined whether the employer could have waived the requirement or accommodated the employee's religious beliefs without undue hardship.*fn99 Hence, the Court finds no basis to accept Defendant's suggestion to extend the rationale underlying the cited cases.

Title VII "requires employers to make reasonable accommodations for their employees' religious beliefs and practices, unless doing so would result in 'undue hardship' to the employer."*fn100

To accept Defendant's argument would establish a per se rule that if a requirement is mandated by law, then an employer need not even attempt to accommodate an employee's religious beliefs, even if it were feasible to do so without undue hardship. Thus, the Court finds it is necessary for the analysis in such matters to continue beyond the prima facie level to determine whether Plaintiff's religious beliefs could have been accommodated, regardless of whether the requirement is mandated by an employer or by law. As an employment requirement need not be employer mandated, Plaintiff has established a prima facie case of religious discrimination.

B. Eliminating the Photo Identification Requirement for Plaintiff would Impose an Undue Hardship on Defendant

Once a prima facie case is established, "the burden shifts to the employer to show that it made good faith efforts to accommodate, or that the requested accommodation would work an undue hardship."*fn101 Here, Defendant does not contend that it offered Plaintiff any sort of accommodation. Thus, this matter will "turn[] on the question of whether the employer can demonstrate that it could not accommodate a religious practice without 'undue hardship.'"*fn102 Undue hardship is requiring the employer "to bear more than a de minimis cost" in order to accommodate the employee's religious practice.*fn103 Economic, as well as non-economic costs can impose an undue hardship on employers.*fn104 The Supreme Court has strongly suggested that "the undue hardship test is not a difficult threshold to pass."*fn105

A case factually similar to the one at hand is United States v. Board of Education.*fn106 In that case, the plaintiff was a devout Muslim woman who worked as a substitute teacher in the Philadelphia School District.*fn107 The plaintiff sought to wear a head scarf in conformance with her religious beliefs while teaching.*fn108 Principals of various schools informed her that pursuant to state law, the plaintiff could not teach in religious garb and refused to allow her to teach without changing her clothing.*fn109 The Third Circuit found that the Board of Education for the School District of Philadelphia could not accommodate the plaintiff without undue hardship because of the law that prohibits her from teaching in religious garb.*fn110 The Third Circuit held "it would be an undue hardship to require [an employer] to violate an apparently valid criminal statute, thereby exposing its administrators to criminal prosecution and the possible consequences thereof."*fn111

The Court applies the reasoning in Board of Education to the action at hand. As explained supra, the Regulations require that Plaintiff, as a port facility employee, carry a photo ID. The Coast Guard will not waive this requirement, and therefore, Defendant may not do so without violating the Regulations. Many of the accommodations requested by Plaintiff both prior to and after his termination sought to circumvent the photo ID requirement, including (1) having a supervisor verify his identity; (2) showing his non-photo driver's license in conjunction with a non-photo employee ID; (3) being escorted to his work location;*fn112 and (4) using biometric identification.*fn113 The aim of these accommodations is to obviate the need for Plaintiff to pose for and carry a photo ID. Defendant could not accept any of these suggested accommodations without violating the Regulations.

Nevertheless, Plaintiff contends that Defendant has failed to demonstrate undue hardship as it has not presented any evidence that it would face penalties under the MTSA or the Regulations, nor any evidence of a burden on the conduct of its business if it did accommodate Plaintiff.*fn114 In this argument, however, Plaintiff misconstrues the law. Defendant need not show that the MTSA or the Regulations would be enforced against it, only that "there was no assurance that [the Coast Guard] would not enforce" the same.*fn115 In fact, Defendant has adduced much evidence that the Coast Guard has every intention of enforcing the MTSA and the Regulations, and that Philadelphia refinery is subject to constant audits and inspections.*fn116 To accommodate Plaintiff, Defendant risks conditions on or the suspension of its facility's operations, or even the shutdown of its Philadelphia refinery.*fn117

Defendant contends that these penalties would inflict an undue hardship on the conduct of its business, and the Court agrees.*fn118 This is not a situation where "the chances of enforcement are negligible and accommodation involves no realistic hardship."*fn119 As a matter of law, allowing Plaintiff to work at Defendant's Philadelphia refinery without photo ID cannot be accomplished without undue hardship to Defendant.*fn120

C. The Accommodations Suggested by Plaintiff are Either Unreasonable or Would Impose an Undue Hardship on Defendant

In addition to suggesting accommodations that would circumvent the photo ID requirement, Plaintiff argues that Defendant should have accommodated him by (1) providing him with an opportunity to request an accommodation or waiver from the Coast Guard, (2) capturing his image using a security or surveillance camera or (3) offering him employment at a non-port facility.*fn121 Prior to Plaintiff's termination, Defendant did inquire if there was any possibility of waiving the requirement of a photo ID as to Plaintiff.*fn122 There was not.*fn123 After Plaintiff's termination, the PHRC also made an inquiry along the same lines, inquiring if there was any allowance for an accommodation.*fn124 The answer was unchanged.*fn125 Plaintiff has not produced any evidence that the answer would have been any different had he asked. Nor did he avail himself of the appeal process provided for by the Regulations by which any person directly affected by a decision or action taken under the Regulations could appeal the same.*fn126 Thus, Plaintiff has not demonstrated a genuine issue of material fact as to whether or not providing him with an opportunity to request an accommodation or waiver from the Coast Guard would have been futile. This accommodation is not a reasonable one and Defendant need not have provided it to Plaintiff.

Next, Plaintiff claims that because his religion does not prohibit a photo being taken of him without his consent,*fn127 Defendant could have provided him with a photo ID by capturing his image using a security or surveillance camera. In response, Defendant has submitted a declaration from Frank Recknagel, the Planning and Compliance Supervisor of Defendant's NER Plant Protection Department, stating that the security system at the Philadelphia refinery "does not have the capability to capture the current facial appearance of plaintiff or any other individual in a still photograph with sufficient resolution for use on a photo ID."*fn128 Plaintiff has produced no evidence to the contrary. Thus, there is no genuine issue of material fact as to whether an adequate photo of Plaintiff could be captured by Defendant's current security. Thus, this suggested accommodation is also unreasonable and Defendant was not obliged to provide it to Plaintiff.

Finally, Plaintiff asserts that he should have been offered employment at a non-port facility.*fn129

Defendant adduced a declaration from Donna Birosak, the Human Resources Manager for Defendant's Refining and Supply Division.*fn130 Ms. Birosak states in her declaration that all three refining facilities operated by Defendant in the Philadelphia area are port facilities subject to the requirement that Plaintiff have and carry a photo ID.*fn131 Moreover, Ms. Birosak states that Defendant operates only two refining facilities that are not also port facilities, one in Tulsa, Oklahoma and the other in Toledo, Ohio.*fn132 According to Ms. Birosak, these facilities have in place seniority systems that would not allow Defendant to transfer Plaintiff to either facility without violating the same.*fn133

Again, Plaintiff provides no evidence to the contrary. Absent discriminatory intent,*fn134 an employer is not "required by Title VII to carve out a special exception to its seniority system in order to help [an employee] meet his religious obligations."*fn135 As offering Plaintiff employment at a non-port facility would impose an undue hardship on Defendant,*fn136 Defendant was not obliged to provide this accommodation to Plaintiff.

There is no genuine issue of fact regarding whether Defendant was obliged to provide Plaintiff with any of his suggested accommodations. As all of them were either unreasonable or would have imposed an undue hardship on Defendant, Defendant is entitled to judgment as a matter of law on Plaintiff's Title VII claims.*fn137


As a port facilities employee, Plaintiff was required under the MTSA and the Regulations to have and carry photo ID. Defendant could not waive this requirement nor could it make any accommodation that would eliminate the same without suffering undue hardship. The accommodations suggested by Plaintiff were either unreasonable or would also impose an undue hardship on Defendant. Because Plaintiff's religious beliefs could not be accommodated without imposing an undue burden on Defendant, Plaintiff's Title VII claim must fail.

An appropriate Order follows.

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