St. Juste v. Metro Plus Health PlanSt. Juste v. Metro Plus Health Plan
MEMORANDUM & ORDER
Plaintiff Omowale St. Juste brings the above-captioned action against Defendants Metro Plus Health Plan (“Metro Plus”), City of New York Health and Hospitals Corporation (“HHC”), the City of New York, Ileana Florentino, Ricardo Alaniz and Michael Stocker, alleging claims of religious discrimination, retaliation and hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), 42 U.S.C. § 1983, the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (“NYSHRL”) and the New York City Human Rights Law, N.Y.C. Admin. Code, § 8-101 et seq., (“NYCHRL”). Defendants moved for summary judgment as to all claims. The Court heard oral argument on March 4, 2014. For the reasons discussed below, the Court grants Defendants’ motion for summary judgment as to Plaintiffs claims brought pursuant to Title VII, NYSHRL and § 1983. The Court declines to exercise supplemental jurisdiction over Plaintiffs claims brought pursuant to the NYCHRL and dismisses those claims without prejudice.
I. Background
a. Plaintiffs hiring and initial employment
Plaintiff Omowale St. Juste is an African-American male who converted to Islam at the age of twenty-three. (Def. 56.1 ¶ 5; Pl. 56.1 ¶ 5.) Defendant Metro Plus provides inexpensive health insurance options for New York City residents and is a subsidiary of HHC.
Plaintiff was obligated by his religious observance to attend congregational prayer, otherwise known as Jumu’ah prayer, (Def. 56.1 ¶ 21; Pl. 56.1 ¶20), and while assigned to the Woodhull Hospital team, Plaintiff attended Friday prayer during the lunch hour, typically at the Masjid-At-Taqwa, a mosque in Brooklyn, (Def. 56.1 ¶¶ 54-55; Pl. 56.1 ¶¶ 53-54). It took Plaintiff an hour and a half to attend Jumu’ah prayer, including travel time'between the mosque and Woodhull Hospital. (Def. 56.1 ¶ 56; Pl. 56.1 ¶55.) Plaintiff therefore required an additional thirty minutes for lunch on Fridays. Plaintiff had a verbal agreement with his supervisor, Florentino, that Plaintiff did not need to include this additional time in his time sheets. (Def. 56.1 ¶ 59; Pl. 56.1 ¶58.) Instead, he could offset the additional thirty minutes with after-hours work at either an event or a home visit. (Id.) Plaintiffs
Plaintiff asked his instructors if it was acceptable for him to wear his thawb to work and they informed him that wearing his thawb fell within Metro Plus’s dress code. (St. Juste Aff. ¶¶ 8, 9; St. Juste Dep. 4:17-74:25.) A thawb is a religious garment which resembles a priest’s robe and covers the wearer from his shoulders to his shins. (St. Juste Aff. ¶ 2; St. Juste Dep. 61:17-61:23.) Plaintiff wore a thawb to work and would typically pair it with a blazer, vest, and dress pants. (St. Juste Dep. 61:17-23; St. Juste Aff. ¶ 10.) Plaintiff admits that wearing the thawb is not a mandatory requirement for Muslims, and wearing a suit would comply with his religious beliefs as it comports with the religious obligation of dressing modestly. (Def. 56.1 ¶¶ 18, 19; PI. 56.1 ¶ 19; St. Juste Dep. 62:14-64:9.)
b. Plaintiffs supervision by Alaniz
On April 1, 2009, Alaniz, the Associate Marketing Director at Metro Plus, became Plaintiffs manager while Florentino was on personal leave. (St. Juste Dep. 150:3-150:6; Def. Ex. C, Deposition of Ricardo Alaniz (“Alaniz Dep.”) 24:2-24:7.) Alaniz supervised Plaintiff directly for two weeks, and indirectly from mid-April until October 2009. (Def. 56.1 ¶¶43, 71; PI. 56.1 iff 42, 70; Alaniz Dep. 24:1-25:3.) On Thursday, April 2, 2009, Alaniz sent an email scheduling a 3:00 p.m. meeting at Elmhurst Hospital for Friday, April 3, 2009. (St. Juste Aff. ¶ 46; PI. Ex. 6.) Plaintiff replied to Alaniz’s email stating, “I will be late for the meeting due to Friday religious services which end at about 2:20 pm.” (Def. 56.1 ¶ 75; PI. 56.1 ¶ 74; PI. Ex. 6.) Alaniz responded by saying “this is unacceptable and your timely attendance is required. This meeting is paramount ... and attendance is mandated.” (Def. 56.1 ¶ 76; PI. 56.1 ¶ 75.) Plaintiff attended Friday prayers and arrived five minutes late to the meeting which had not yet begun. (Def. 56.1 ¶ 79; PI. 56.1 ¶ 78; St. Juste Aff. ¶ 48.) Plaintiff was not disciplined for being late to the meeting. (Def. 56.1 ¶ 78; PL 56.1 ¶ 78.)
A week later, Alaniz noticed that Plaintiff had not returned to Woodhull Hospital within the normal timeframe for lunch, did not see Plaintiff at his station, and did not have documentation on file from Plaintiff requesting time off. (Def. 56.1 ¶¶ 84, 86; PI. 56.1 ¶¶ 83, 85; Alaniz Dep. 120:4-18.) Alaniz left a message with co-workers requesting that Plaintiff visit Alaniz when Plaintiff returned. (St. Juste Aff. ¶ 96; Alaniz Dep. 120:21-25.) Plaintiff claims that when he met with Alaniz, Alaniz made derogatory comments about the thawb calling it “unprofessional according to American culture.” (St. Juste Aff. ¶ 51.) Alaniz also informed Plaintiff that he was “stealing company time” by attending Friday prayers and that Plaintiffs attendance at these prayers was subject to Alaniz’s discretion. (Id.) Plaintiff informed Alaniz that he attended Jwmu’ah prayers on Fridays and therefore required additional time for lunch, (Def. 56.1 ¶ 87; PI. 56.1 ¶ 86), and Alaniz responded by stating that such behavior was inappropriate and “not conducive for the marketing operations,” (Alaniz Dep. 125:3-5).
Subsequent to this meeting, Joseph Chasse, Associate Executive Director of Marketing, requested that Plaintiff wear a suit and not a thawb when working at the Federal Courthouse. (Def. 56.1 ¶ 81; PI. 56.1 ¶ 80; St. Juste Dep. 83:9-20.) Alaniz subsequently discontinued the use of Mas-jid-At-Taqwa as a Metro Plus work site,
Plaintiff claims that, at an unspecified time, Alaniz told him that his attendance at Friday prayers was a “privilege” that would only continue so long as he kept meeting his weekly enrollment goal. (St. Juste Dep. 181:16-23.) On May 21, 2009, Alaniz emailed Plaintiff a copy of Metro Plus’s policy with respect to ethnic and religious holidays. (Def. 56.1 ¶ 89; Pl. 56.1 ¶ 88; Def. Ex. S.) Alaniz explained in the email that he “will genuinely] make every effort to accommodate your needs but at the same time I also have an obligation to the -corporation to abide by all rules and regulations as previously explained,” and directed Plaintiff to reach out to Belinda Barneys, the Director of Labor Relations in the human resources department, to obtain clarification on the policy. (Def. 56.1 ¶ 90; Pl. 56.1 ¶ 89; Def. Ex. S.) Plaintiff reached out to Ryan Harris, Chief Human Resources Officer, who told Plaintiff that Metro Plus would accommodate his request to attend Friday prayers except where it affected the company’s operations. (Def. 56.1 ¶ 91; Pl. 56.1 ¶ 90.)
HHC’s Operating Procedure on Ethnic and Religious Holidays provides that approved leave for observance of ethnic or religious holidays could be charged to annual leave or compensatory time credits, and, if the request for leave is otherwise appropriate, could be granted and charged against future accumulation of either annual or compensatory time if an employee had insufficient vacation days or accumulated compensatory time. (Pl. Ex. 4 (“HHC Operating Procedure No. 20-18”) at 2.) The policy also provides that each major operating unit “must establish the amount of advance notice required for submission of leave requests, and a procedure to ensure that employees are informed of the requirement well in advance of the time requests must be provided.” (Id. at 2.) A request for leave, whether annual leave or compensatory time, for a religious or other holiday must be made through submission of an “SR-70” form at least two weeks in advance. (Def. 56.1 ¶ 57; Pl. 56.1 ¶ 56.)
Alaniz met with Harris from the human resources department on or about May 24, 2009, and subsequently concluded that the hospital “could not reasonably accommodate [Plaintiffs] request for more than a one-hour lunch” on Fridays. (Alaniz Dep. 114:12-17.) According to Defendants, Metro Plus operates in “a very regulated monitored industry,” and the New York City Department of Health and other city and federal government agencies require a schedule to be sent to them “two months in advance on where [Facilitated Enrollers (“FE’s”) ] are going to be located, including, their working hours. (Def. 56.1 ¶ 50; Alaniz Dep. 68:3-24.) The city and federal agencies send monitors out and if they do not see a particular employee at a scheduled site, Metro Plus could be fined and cited. (Def. 56.1 ¶ 50; Alaniz Dep. 68:3-24; Def. Ex, D and Pl. Ex. 2, Deposition of Ileana Florentino (“Florentino Dep.”) 53:8-12.) Alaniz testified that it was understood that the hours between 12 noon and 2 p.m. were allocated for employee
c. Plaintiffs Complaints
On May 19, 2009, Plaintiff emailed Harris, stating: “I really need to meet with you in regards to a meeting I had with [Rjicardo [Alaniz], he advised me to speak to you.... It’s in reference to my religion.” (PI. Ex. 8.) On June 17, 2009, Plaintiff sent an email to Florentino expressing concerns about his interactions with Alan-iz. (Def. 56.1 ¶ 96; PI. 56.1 ¶ 95; PI. Ex. 13.) Plaintiff stated in part, “it appeared to me that [Alaniz] was trying to make me choose between my job and my religion. [I] even mentioned to him about federal laws to prevent such incidents from [occurring. ...” (PI. Ex. 13.) Two days later Plaintiff forwarded a copy of that email to Barneys and Harris. (Def. 56.1 ¶ 101; PI. 56.1 ¶ 100.)
Alaniz met with Harris to discuss Plaintiffs use of additional lunch time to attend religious services. (Alaniz Dep. 125:14-125:22.) Harris recalls giving Alaniz a copy of Metro Plus’s operating procedure manual and explaining to him that he should attempt to accommodate an employee’s needs unless Alaniz believed that such an accommodation would negatively affect operations. (Def. Ex. E and PI. Ex. 7, Deposition of Ryan Harris (“Harris Dep.”) 150:3-151:6.) Harris also warned Alaniz against “singling anybody out.” (Id. at 151:5-6.) Harris also had a conversation with Plaintiff where he presented him with a copy of the operating procedure manual and explained that they would attempt to accommodate his needs but it would depend on the “operational needs of the department.” (Def. 56.1 ¶ 91; Harris Dep. 151:13-151:25.) Alaniz confirms that Harris provided him with a copy of the operating procedure but stated that they mutually concluded that they “could not reasonably accommodate [Plaintiffs] request” for a longer lunch hour. (Alaniz Dep. 114:12-17.)
d. Plaintiffs disciplinary history
On April 13, 2009, Plaintiff attended a counseling session to discuss his failure to meet his monthly productivity goals from November 2008 through March 2009.
On August 17, 2009, a counseling memorandum was generated for Plaintiff to discuss excessive unscheduled absences. (Def. 56.1 ¶ 66; PL 56.1 ¶65; PI. Ex. 9, Memorandum Dated Aug. 17, 2009; April 2009 Counseling Memorandum at 3, Undated Record of Employee Counseling Session.) The memorandum stated that “during the last 3 months [Plaintiff has] ... exceeded the amount of unscheduled days off allowed by the corporation.” (Memorandum Dated Aug. 17, 2009 at 331.) Plaintiff wrote on the counseling memorandum, “I was at work. Only one of these days was unscheduled.” (Id.) According to Florentino, the counseling memorandum never became a genuine disciplinary issue because she met with Plaintiffs union representative on an unspecified date and the representative encouraged Plaintiff to produce doctor’s notes for all his unscheduled absences, which he did, and “that was the end of it.” (Florentino Dep. 62:17-21.) A counseling session to discuss these unexcused absences was scheduled for October 17, 2009,
e. Fraud investigation
In or around September 2009, while Flo-rentino was conducting Quality Assurance of Medicaid enrollment documents, she became suspicious of certain Medicaid enrollment documents submitted by Plaintiff. (Def. 56.1 ¶ 103; Florentino Dep. 85-87.) Several of Plaintiffs field applications for Medicaid were “in perfect shape,” with no wrinkles or folds, which was atypical of applications from this population. (Flo-rentino Dep. 87:9-23; Def. 56.1 ¶ 104.) Generally, enrollment forms were not “in perfect shape” and tend to have “wrinkles.” (Florentino Dep. 87:15-23.) On October 8, 2009, Florentino sent a memorandum to a manager in the Compliance Department, copying, among others, Chasse, Harris and Alaniz, documenting her investigation into the enrollment forms and requesting an investigation into possible fraud by Plaintiff. (Pl. Ex. 12 and Def. Ex. U at 68-70, (“Florentino Mem.”) at 68-70.)
In the memorandum Florentino described three enrollment forms from three different clients, produced by Plaintiff, which she believed to be counterfeit. (Id.) Florentino described contacting Plaintiffs clients and confirming that they had not provided the letters that Plaintiff had submitted with their enrollment forms. (Id.) Florentino concluded that Plaintiff “violat
f. Plaintiffs pre-hearing suspension and disciplinary hearing
On October 16, 2009, a pre-hearing suspension letter was sent to Plaintiff informing him that he was suspended without pay “effective immediately” until a disciplinary hearing was scheduled. (Def. 56.1 ¶ 108; PL 56.1 ¶ 107; Def. Ex. V.) On October 22, 2009, a Notice of Statement and Charges was filed and Plaintiffs disciplinary hearing was scheduled for October 29, 2009 and included a formal list of charges. (Def. 56.1 ¶ 109; PI. 56.1 ¶ 108; Def. Ex. W.) Plaintiff was accused of three counts of “gross misconduct” for “altering original eligibility documents.” (Def. Ex. W.)
Plaintiff attended the October 29, 2009 Disciplinary Hearing with his union representative, Sheila Lewis; Diana Almanzar, a Compliance Analyst, Barneys, Alaniz and Florentino were also present. (Def. 56.1 ¶¶ 110-14; PI. 56.1 ¶¶ 109-13.) The hearing was presided over by Barneys. (Def. 56.1 ¶ 111; PI. 56.1 ¶ 110.) Almanzar presented evidence of the fraud charges against Plaintiff. (Def. 56.1 ¶ 114; PI. 56.1 ¶ 113.) On December 9, 2009, Barneys issued a determination letter with her findings. (Def. Ex. Y, “Letter of Determination.”) Barneys concluded that one of the three charges of fraud could be substantiated, one could not be substantiated, and that the letter comprising the third charge was authentic and that charge was therefore unfounded. (Id. at 2-3.) Barneys recommended that Plaintiff be suspended for sixty days without pay, but since Plaintiff had already “served a 30 calendar day suspension without pay,” Plaintiff would receive credit for those 30 days. (Id.)
According to Defendants, the substantiation of the fraud charge was grounds for terminating Plaintiff, but because Plaintiffs union representative had spoken with Barneys after the October 22, 2009 disciplinary hearing and recommended leniency, Barneys recommended a 60-day suspension rather than termination of Plaintiffs employment. (Def. 56.1 ¶ 116; Def. Ex. H, Deposition of Belinda Barneys at 64:17-65:22.) Plaintiffs union representative Sheila Lewis informed him that, as a condition of his suspension and reinstatement, rather than termination, he would have to plead guilty to the one charge of fraud that had been substantiated by Barneys. (Def. 56.1 ¶ 118; PI. 56.1 ¶ 117.) Plaintiff told Lewis that he would do so only under “duress.” (St. Juste Dep. 112.) Plaintiff maintains that he never admitted guilt or conceded that the substance of the fraud charge was accurate. (St. Juste Aff. ¶ 79.) Plaintiff alleges that the fraud charges against him were fabricated by Florentino and Alaniz. (St. Juste Aff. ¶ 80.) He asserts that “it was Florentino who had at one time asked me to forge certain documents and that I refused to do so.” (St. Juste Aff. ¶ 80; see also Am. Compl. ¶ 38.)
A Stipulation of Settlement (“Stipulation”), dated January 11, 2010, stated the terms of Plaintiffs reinstatement. (Def. Ex. Z.) The terms of the Stipulation included an acknowledgment that the Plaintiff “pleads no contest and accepts the disciplinary penalty of a suspension with
g. Plaintiffs reinstatement
Plaintiff was reinstated in December 2009 and transferred to a team in the Bronx, where he worked under the supervision of Regina Joseph. (Def. 56.1 ¶¶ 130-31; PI. 56.1 ¶¶ 129-30.) Plaintiff was happy to be out from under the supervision of Alaniz and Florentino but wanted to continue working in Brooklyn, where he lived. (St. Juste Dep. 196:2-8.) Metro Plus informed Plaintiff that there was no availability on any of the Brooklyn teams. (Id. at 196:16-22.) Plaintiff was unaware if there was any available space on any of the Brooklyn teams. (Id. at 196:7-9.) Chasse directed Plaintiff to speak with the supervisors of various Brooklyn teams to determine if they had space. (Def. Ex. F, Deposition of Joseph Chasse (“Chasse Dep.”) 60:25-61:8.) Chasse states that Plaintiff was not transferred to one particular team in Brooklyn because that team required special language skills that Plaintiff did not have, and that another team at Kings County Hospital was full. (Chasse Dep. 60:3-18; Def. 56.1 ¶137.) While at the Bronx site, Plaintiff received a counseling memorandum from Joseph for his low enrollment numbers. (Def. 56.1 ¶ 138; PI. 56.1 ¶ 137.)
h. Plaintiffs security incident
Plaintiff believes that he was blacklisted from all North Brooklyn Metro Plus work sites. On February 9, 2010, Joseph sent an email to her employees informing the employees that due to an upcoming snow storm, they could work from any Metro Plus work site in close proximity to their home. (PL Ex. 18 at 322.) Plaintiff went to Woodhull Hospital, the closest work site to his home, but he was denied entrance and forced to travel to the Bronx. (St. Juste Aff. ¶ 16.) A few days later on February 11, 2010, Alaniz sent an email to Joseph, Chasse, Florentino and Plaintiff stating that it was “not acceptable” for Plaintiff to work at Woodhull Hospital because he represented a “security concern.” (PL Exs. 19, 22.) Florentino also sent an email on February 11, 2010, stating that Plaintiff “cannot report to Woodhull or any other site in the North Brooklyn network. Hospital police will not allow him on the premises.” (PL Ex. 22.) Alaniz was not aware of any policy that prohibited Plaintiff from working from any other North Brooklyn hospital other than Woodhull Hospital. (Alaniz Dep. 171:13-17.) Alan-iz’s supervisor, Chasse, stated that there was no policy that prohibited Plaintiff from working anywhere in Brooklyn. (Chasse Dep. 113:8-10, 114:8-23.) Florentino agreed that “after [Plaintiff] was reinstated, he had access to all sites because he was an employee.” (Florentino Dep. 193:13-24.)
II. Discussion
a. Standard of Review
Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, “there is no
b. City of New York
Plaintiff names the City of New York as a separate Defendant. However, Plaintiff has not made any allegations against the City of New York or its agencies. Instead, Plaintiff has made allegations against Metro Plus, a subsidiary of HHC. It is well-established that for the purposes of Title VII litigation, HHC and the City of New York are considered two distinct entities. Where, as here, there are no allegations against the City of New York or any of its agencies but rather against HHC, a separate entity, the City of New York has improperly been named as a Defendant to this suit. See Samuel v. Bellevue Hosp. Ctr.,
c. Florentino, Alaniz and Stocker
Plaintiff asserts a Title VII claim against Florentino, Alaniz and Michael
Although “Title VII claims are not cognizable against individuals, individuals may be held liable under ...[§] 1983 for certain types of discriminatory acts, including those giving rise to a hostile work environment.” Patterson,
d. Religious Discrimination Claims&emdash; Title VII, Section 1983 and NYSHRL
Plaintiff alleges that Defendants discriminated against him on the basis of his religion in violation of Title VII, § 1983 and NYSHRL. Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual ... because of such individual’s ... religion[.]” 42 U.S.C. § 2000e-2(a)(l). An individual’s “religion” includes not just religious beliefs, but “all aspects of religious observance and practice,” unless the employer demonstrates that it is unable to reasonably accommodate that observance or practice “without undue hardship on the conduct of the employer’s business.” § 2000e(j); see also Cosme v. Henderson,
i. Disparate Treatment Religious Discrimination Claim
Under Title VII, § 1983 and the NYSHRL, disparate treatment religious discrimination claims are assessed using the burden-shifting framework established by McDonnell Douglas Corp. v. Green,
1. Prima Facie Case
To establish a prima facie case of religious discrimination based on disparate treatment, a plaintiff must show that: “(1) he belonged to a protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.” Brown v. City of Syracuse,
Defendants do not dispute that Plaintiff, as a Muslim, is a member of a protected class. (Def. 56.1 ¶ 1; PI. 56.1 ¶ 1.) See Jiggetts v. Laguardia Airport, No. 04-CV-3969,
A. Adverse Employment Action
Plaintiff alleges the following constitute adverse employment actions: (1) the termination of the use of compensatory time to attend Friday prayers, (PI. Mem. 8), (2) Plaintiffs suspension in connection with fraud charges, (PI. Mem. 9-10; Transcript of Oral Argument (“Tr.”) 48:6-7), (3) the termination of the Masjid-At-Taqwa as an
The Second Circuit has made clear that an “[a]n adverse employment action is a materially adverse change in the terms and conditions of employment.” Mathirampuzha v. Potter,
(1) Termination of use of compensatory time
Plaintiff argues that Alaniz’s termination of the use of compensatory time was an adverse action. Plaintiff had an informal agreement with Florentino that he could take an extra 30 minutes to attend Friday prayers, without documenting the time on his time sheet, in exchange for working an extra 30 minutes after hours. When Alan-iz became Plaintiffs supervisor in April 2009 and learned of this arrangement, he terminated it, and told Plaintiff that he should either use annual leave or unpaid time to account for the extra 30 minutes each Friday, although in his affidavit in opposition to the motion, Plaintiff claims that Alaniz told him that he had to use unpaid leave. Alaniz also emailed Plaintiff a copy of HHC’s Operating Procedure policy regarding leave for ethnic and religious holidays, told Plaintiff that he would make a genuine effort to accommodate Plaintiffs needs and directed Plaintiff to contact the director of labor relations if he had any questions.
Plaintiff argues that these events establish that Alaniz prevented Plaintiff from using compensatory time to attend Friday prayer. The record is devoid of detail as to whether Plaintiff read the HHC operating policy regarding leave for religious observances and subsequently made a formal request to take compensatory leave that was denied by Alaniz. Nor is there evidence that Alaniz pre-emptively told Plaintiff not to bother making such a request. However, viewing the evidence in the light most favorable to the Plaintiff, a reasonable jury could credit Plaintiffs last recollection that Alaniz insisted that Plaintiff use only unpaid leave, or find that by failing to verbally inform Plaintiff that he had the right to use compensatory leave, Alaniz denied Plaintiff the ability to use compensatory leave to attend Friday prayers. Plaintiff took the time off each week as unpaid leave for a period of two to three months, although the parties dispute whether he did so by choice or because
With this view of the record, in light of the fact that Plaintiff was not paid for approximately 30 minutes that he took off for religious observances on Friday afternoons, for a period of two to three months, the termination of Plaintiffs ability to use compensatory time had a materially adverse impact on Plaintiff sufficient to establish an adverse employment action. See Alfano v. Costello,
(2) Suspension resulting from charges of fraud
Plaintiffs October 2009 suspension without pay is an adverse employment action. See Weber,
(3) Discontinuation of mosque as enrollment site
Plaintiff alleges that the discontinuation of Masjid-Ab-Taqwa as an enrollment site constitutes an adverse employment action, because it had an adverse impact on Plaintiffs ability to enroll new participants in Medicaid, thereby affecting his productivity. (PI. Mem. 16; Tr. 33:11-13.) Defendants argue that the discontinuation of the use of the mosque as an enrollment site amounts to nothing more than Plaintiffs “subjective dissatisfaction” with his job assignment. (Def. Reply 6.) As evidence that the mosque had been productive and that its discontinuation therefore adversely affected Plaintiffs ability to enroll new participants, Plaintiff relies on the fact that the mosque had been open for a period of ten months prior to Alaniz’s decision to discontinue it as an enrollment site, four months longer than the initial period required for an enrollment site to be considered productive according to Plaintiff. (Tr. 38:22-39:6.) Plaintiffs argument that the mosque must have been productive because it was open for ten months, without any evidence showing the productivity of the mosque, is speculative. Plaintiff does not present any evidence of the number of people he enrolled at the mosque during the time he worked at that location in support of his claim that it was productive. Plaintiff instead points to his performance evaluation for 2008-09, which shows the total number of participants enrolled by Plaintiff in each month between October 2008 and September 2009. (Def. Ex. R at 55.) However, this evaluation does not specify the location where Plaintiff recruited these individuals, nor does it indicate any specific number of individuals Plaintiff en
(4) Counseling memorandum for sick days
Plaintiff argues that the notice he received on August 17, 2009, requiring him to appear for a counseling session constitutes an adverse employment action because it is the first step in the disciplinary process, and it remains on Plaintiffs record. (PI. Mem. 8 (citing Harris Dep. 98-99).) Plaintiff emphasizes that “the basis for the ‘excessive unscheduled days taken’ was simply fabricated.” (PI. Mem. 9.) However, even if Plaintiff is correct that the counseling memorandum was unjustified, such a counseling memorandum, standing alone, does not constitute an adverse employment action. See Morales v. NYS Dep’t of Labor,
Although the record is unclear as to whether the memorandum generated on August 17, 2009 resulted in a counseling session in August 2009 (in addition to the counseling session scheduled for October 17, 2009), even if such a session had been held, according to Plaintiff the charges were dropped at that session. In the absence of any resulting discipline, the issuance of a counseling memorandum or even attendance at a counseling session is not an adverse employment action as there is no evidence that this had a materially adverse effect on Plaintiffs employment.
(5) Transfer to the Bronx
Plaintiffs transfer from a Brooklyn work site to a Bronx site upon his reinstatement after his suspension was not an adverse employment action. Nor was Defendant’s failure to transfer him back to Brooklyn. While a “nominally lateral transfer, even without any loss in salary, can constitute an adverse employment action under Title VII,” the plaintiff must “show that the transfer created a materially significant disadvantage.” Pacheco v. New York Presbyterian Hosp.,
Plaintiff was transferred to the Bronx after he was investigated and suspended for fraud while working at Woodhull Hospital in Brooklyn. Plaintiff did not want to continue working under Florentino and Alaniz at Woodhull Hospital. (Def. 56.1 ¶ 135; PI. 56.1 ¶ 135.) Plaintiff has not proffered evidence to demonstrate that his transfer to the Bronx “alter[ed] the terms and conditions of [his] employment in a materially negative way.” See Ayiloge v. City of New York, No. 00-CV-5051,
Defendants’ failure to transfer Plaintiff back to Brooklyn is also not an adverse employment action. Plaintiff requested to be transferred to an office in Brooklyn but was told that none were available. A denial of a lateral transfer is not an adverse employment action. See Taylor v. New York City Dep’t of Educ., No. 11-CV-3582,
In sum, the termination of Plaintiffs ability to use compensatory time to attend Friday prayers, and Plaintiffs suspension without pay in October 2009 qualify as materially adverse employment actions for purposes of his disparate treatment religious discrimination claim.
B. Inference of Discrimination
Inference of discrimination “is a ‘flexible [standard] that can be satisfied differently in differing factual scenarios.’ ” Howard v. MTA Metro-N. Commuter R.R.,
However, a plaintiffs own subjective belief that he was discriminated against because of his religion is insufficient to sustain a religious discrimination claim. See Boyar v. City of New York, No. 10-CV-65,
Plaintiffs burden at this stage of the prima facie case is to show that the adverse employment actions he experienced took place under circumstances giving rise to an inference of discrimination. See Marmulszteyn,
Here, the termination of Plaintiffs use of compensatory time to attend Friday prayers and Plaintiffs suspension without pay as a result of disciplinary charges are adverse employment actions. Plaintiff argues that when Alaniz’s actions are viewed collectively, an inference of discrimination can be drawn based on the numerous negative actions that Alaniz took with respect to the mosque and the fact that Plaintiff is Muslim. (Tr. 51:5-10.) Plaintiffs argument is that an inference of discrimination can be drawn from the combined facts of: Alaniz refusing to permit Plaintiff to arrive late to a meeting on April 3, 2009, Alaniz’s verbal remarks that Plaintiffs thawb was “unprofessional according to American culture,” and remarks that Plaintiffs attendance at Friday prayers was subject to Alaniz’s discretion and was “stealing company time,” Alaniz looking for Plaintiff at Plaintiffs station at a time that he knew Plaintiff was attending Friday prayers, Alaniz’s discontinuance of the use of compensatory time by Plaintiff to attend Friday prayers, the initiation of a counseling session based on unscheduled absences that Plaintiff alleges were “fabricated” by Alaniz, and the initiation of fraud charges against Plaintiff that Plaintiff likewise alleges were fabricated by Florentino, at Alaniz’s urging.
The evidence before the Court does not support the inference that Alan-iz’s conduct was motivated by Plaintiffs religion. Moreover, even assuming that it did, there is no evidence that Alaniz’s bias was a cause of Plaintiffs 60-day suspen
Viewing all of Alaniz’s conduct and statements together, the picture that emerges is of a manager with a “hard knock” managerial style that, in Plaintiffs own words, “made a very uncomfortable work environment for everyone.” (See PI. Ex. 13; Tr. 59:22) Plaintiff contends that Alaniz’s refusal to permit Plaintiff to arrive late to the April 8, 2009 meeting, when juxtaposed with the latitude afforded to other employees from Woodhull Hospital and Alaniz’s subsequent termination of Plaintiffs use of compensatory time to attend Friday prayers, is evidence of religious bias. However, Plaintiff does not present any evidence that other individuals were permitted to arrive late for the meeting,
Likewise, there is also no evidence to support Plaintiffs allegation' that Alaniz patrolling the office and looking to ensure that “people are where they are supposed to be,” (Alaniz Dep. 123:23-24), is indicative of any religious discriminatory animus. Alaniz went to look for Plaintiff when he discovered that there was no documentation providing for Plaintiff to be on an extended lunch hour on Fridays. Plaintiff has not presented any evidence that Alaniz did not require the same documentation for non-Muslim co-workers or that he did not check up on non-Muslim co-workers in the same manner. To the contrary, Plaintiff asserts that Alaniz created an uncomfortable work environment for everyone. (PI. Ex. 13.) Absent any evidence that Alaniz did not look for other, non-Muslim co-workers in a similar manner or require documentation for their absence, or that Alaniz was otherwise motivated by religious bias, this level of excessive monitoring and scrutiny by Alaniz is insufficient to raise an inference of discriminatory bias.
Plaintiff also argues that the issuance of the August 17, 2009 counseling memorandum for excessive unscheduled absences creates an inference of discrimination because the basis for the issuance of the memorandum was entirely fabricated by Alaniz. Even if this speculative allegation were true, Plaintiff still has not shown that Alaniz fabricated such charges because of religious bias. See Watson v. Geithner, No. 11-CV-9527,
As to the statements by Alaniz that Plaintiffs thawb was “unprofessional according to American culture,” and that Plaintiff was “stealing company time” by using compensatory time to attend Friday prayers, (St. Juste Aff. ¶ 51; St. Juste Dep. 174:18-174:25), and Alaniz’s decision to close the Masjid-At-Taqwa as an enrollment site, the Court does not find them to be examples of any overt religious discriminatory animus. Likewise, Alaniz’s termination of Plaintiffs ability to informally use compensatory time to attend Friday prayers is not intrinsically susceptible to a conclusion of bias. If Plaintiff had produced other evidence, such as evidence that Alaniz did not manage non-Muslim employees in a similarly rigid fashion, through which to read these otherwise facially neutral actions by Alaniz, then Alan-iz’s actions towards Plaintiff could be more susceptible to reading as motivated by bias against Plaintiffs religion. As presented, however, the record only demonstrates that Alaniz treated Plaintiff in a microman-agerial and tough manner, and appears to have treated all employees similarly, according to Plaintiff. (See St. Juste Aff. ¶ 58 (“[notwithstanding what I perceived as religious animus, Alaniz was generally dictatorial, threatening and inconsiderate”).) The record is insufficient to permit a jury to infer religiously biased motivation on Alaniz’s part.
However, even assuming that Alaniz’s actions are indicative of an underlying religious bias, Plaintiff has still not established the necessary inference that either the unpaid suspension for fraud in October 2009 or the termination of his informal use of compensatory time were motivated by Alaniz’s bias. As Plaintiff concedes, the disciplinary charges were initiated by Flo-rentino and not Alaniz, and there is no evidence to suggest that, even if Florenti-no had fabricated the charges against Plaintiff, as Plaintiff contends, that she did so at the behest of Alaniz.
Plaintiff has not alleged that Barneys’s independence is disputed. Thus Plaintiff cannot establish any inference of discrimination. In any event, even if the Court assumes that Plaintiff could raise an inference of discrimination with regard to his suspension or the termination of his compensatory time for Friday prayers, and thereby establish a prima facie case of disparate treatment, Plaintiffs claim fails nevertheless because he cannot show that Defendants’ nondiscriminatory reason for their actions were mere pretext.
2. Non-Discriminatory Explanation
Once a plaintiff establishes a prima fa-cie case of discrimination, “the burden shifts to the defendant to offer a legitimate nondiscriminatory reason for the [employment action].” Ruis,
3. Pretext
Once a defendant has proffered a nondiscriminatory reason for its adverse action, the burden shifts back to the plaintiff to show that this reason is pretextual. Holcomb,
Plaintiff has not established that Metro Plus’s legitimate and non-discriminatory fraud investigation which resulted in his post-hearing suspension was merely pretext for discrimination. Plaintiff has failed to demonstrate that his suspension was motivated in part by religious discrimination. Plaintiff claims that Alaniz and/or Florentino fabricated the documents that gave rise to his fraud charges, but has no evidence on which to base this speculation. Essentially, Plaintiff asks the Court to make several assumptions without any evidence to support them. Plaintiff wants the Court to assume that his supervisor Florentino, who had always been extremely accommodating of Plaintiff, decided to fabricate evidence against Plaintiff because Alaniz wanted her to do so, and that Alaniz somehow influenced not just Florentino, but also prevented Plaintiff from contesting his innocence at his disciplinary hearing. Plaintiff agreed to resolve the charges with Metro Plus in exchange for his reinstatement. Other than speculation that Metro Plus was motivated in part by religious animus in bringing fraud charges against him, Plaintiff has presented no evidence, and therefore cannot show pretext. See Farias v. Instructional Sys., Inc.,
As for the termination of Plaintiffs compensatory time, Plaintiff argues that the reason proffered by Defendants is pretextual because of an inconsistency between Harris’s explanation of the policy and Alaniz’s explanation of the decision, and the fact that Alaniz claimed in his deposition to be unfamiliar with Metro Plus’s policy regarding religious needs. (PI. Mem. 14-15 (citing Alaniz Dep. 52).) However, even under Harris’s more generous explanation of Metro Plus’s policy regarding religious leave, managers maintain discretion to determine whether to permit employees to take leave, and Plaintiff has not pointed to any evidence indicating that Alaniz abused that discretion. Furthermore, although the evidence, viewed in the light most favorable to Plaintiff, is sufficient to establish a genuine issue of fact regarding whether Alaniz required Plaintiff to take only unpaid leave or annual leave, Plaintiff has not submitted any evidence indicating that he requested and was denied the ability to formally request and take compensatory leave. Plaintiff has not alleged that he submitted an SR-70 form requesting compensatory time off to attend Friday prayers. While it is undisputed that Alaniz terminated Plaintiffs ability to informally use compensatory time, and accepting Plaintiffs presentation
Defendants’ motion for summary judgment as to Plaintiffs disparate treatment religious discrimination claim is granted.
ii. Failure to Accommodate Religious Discrimination Claim
To establish a claim for failure to accommodate, a plaintiff has the initial burden to prove a prima facie case of discrimination. Bowles v. New York City Transit Auth.,
1. Prima Facie Case
To establish a prima facie case of religious discrimination based on failure to accommodate, a plaintiff must prove that: “(1) he or she has a bona fide religious belief that conflicts with an employment requirement; (2) he or she informed the employer of this belief; [and] (3) he or she was disciplined for failure to comply with the conflicting employment requirement.” Bowles,
Here, there is no dispute that Plaintiff had a bona fide religious belief and that his employer Metro Plus knew about his religious belief. (Def. Mem. 8.) Defendants argue that Plaintiff cannot satisfy the third prong because Plaintiff was never prevented from, or disciplined for, taking longer than one hour for lunch on Fridays.
Although the Second Circuit has not directly addressed what the “discipline” prong of a failure to accommodate religious discrimination claim requires, it has suggested that this can be equated with an adverse employment action. See Marmulszteyn,
The case law is clear that requiring an employee to use paid leave to attend religious services does not constitute an adverse employment action. See Guy,
However, it is less clear that being required to take unpaid leave for religious observances comprises an adverse action for purposes of a failure to accommodate claim. See Guy,
Plaintiff needed more than his allotted hour for lunch in order to attend prayer services on Fridays. (Def. 56.1 ¶ 54; PI. 56.1 ¶ 54.) Florentino allowed Plaintiff to use compensatory time to account for the additional time beyond Plaintiffs lunch hour. (Def. 56.1 ¶ 58; PI. 56.1 ¶ 58.) Flo-rentino also did not require Plaintiff to report any additional time used during lunch on his time sheets. (Def. 56.1 ¶ 56; PL 56.1 ¶ 56.) When supervised by Alaniz, Plaintiff claims that he was required to use unpaid leave rather than compensatory time, (PI. Mem. 13; St. Juste Aff. ¶ 66), even though the policy of Metro Plus allowed for the use of compensatory time for religious observances, (PI. Ex. 4). Plaintiff acknowledged that Alaniz gave him a choice of using his vacation days or taking unpaid leave in order to attend Friday prayer, (St. Juste Dep. 146:13-16), but claims that Alaniz later told Plaintiff that he had to document the time as unpaid leave because “he told me that I was stealing company time,” (St. Juste Dep. 174:18-24).
HHC’s Operating Procedure on Ethnic and Religious Holidays provides that approved leave for observance of ethnic or religious holidays could be charged to annual leave or compensatory time credits, and leave could be taken and charged against future accumulation of either annual or compensatory time if an employee had insufficient vacation days or accumulated compensatory time. (PI. Ex. 4, Operating Procedure No. 20-18.) After meeting with Harris from the human resources department, Alaniz concluded that the hospital “could not reasonably accommodate his request for more than a one-hour lunch” on Fridays. (Alaniz Dep. 114:12-17.) Whether or not Plaintiff was required by Alaniz to do so, it is undisputed that he took unpaid leave to attend Friday prayers for a period of two to three months. (Def. 56.1 ¶ 94; PI. 56.1 ¶ 94; see also PL Dep. 174:3-24.) Defendants argue that “[PJlaintiff was never prevented from attending Friday prayer services,” and he was not disciplined for attending Friday
In light of the fact that this prong of the analysis in a failure to accommodate claim is viewed in the same manner as the “adverse employment action” requirement in the discrimination context, and since in the discrimination context courts find that being required to take unpaid leave can be an adverse employment action, the Court will assume Defendants’ failure to pay for time off to be “discipline” for purposes of Plaintiffs prima facie case, and assume that he has established a prima facie case.
2. Reasonable Accommodation
Once Plaintiff establishes a prima facie case of failure to accommodate, “the employer must offer him a reasonable accommodation, unless doing so would cause the employer to suffer an undue hardship.” Baker,
Plaintiff argues that Guy and McLaughlin are inapposite because the plaintiffs in those cases were unhappy with the accommodations provided to them, while Plaintiff has suffered a unique harm of having a particular accommodation rescinded. (PI. Mem. 24.) Plaintiffs attempt to distinguish these cases fails. The ultimate issue here is the fact that Plaintiff was required to take unpaid leave to attend Friday prayer services, and such an accommodation is one that courts in this Circuit have found to be a reasonable accommodation. Plaintiff cannot maintain a failure to accommodate claim merely because he did not receive his preferred accommodation. See Cosme,
The Court is aware that the Supreme Court has cautioned that “unpaid leave is not a reasonable accommodation when paid leave is provided for all purposes except religious ones,” Ansonia,
Plaintiff argues that such discretion amounts to “allowing managers to simply make up their own rules,” opening the door to abuse in contravention of the HHC’s own written policy. (PI. Mem. 25.) Plaintiffs argument has some support in Ansonia, where the Supreme Court noted that “[a] provision for paid leave ‘that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free ... not to provide the benefit at all.’ ” Ansonia,
e. Retaliation Claims — Title VII and the NYSHRL
Plaintiff claims that Defendants retaliated against him for complaining about Alan-iz’s conduct and for “defending himself against Alaniz’s actions.” (PI. Mem. 26-
i. Prima Facie Case
In order to establish a prima facie case of retaliation, a plaintiff must establish “(1) she engaged in protected activity; (2) the employer was aware of this activity; (3) the employee suffered a materially adverse employment action; and (4) there was a causal connection between the alleged adverse action and the protected activity.” Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs, P.C.,
Defendants argue that Plaintiff cannot establish a prima facie case of retaliation because Plaintiff did not engage in any protected activity prior to experiencing any of his allegedly adverse actions, and that Plaintiff cannot show that he experienced an adverse action. (Def. Reply 14-15.) Defendants further argue that even if Plaintiff could establish a prima facie case, Defendants had nonretaliatory reasons for their actions. (Def. Mem. 11-13.)
1. Protected Activity and Defendants’ Knowledge
Plaintiff alleges that he participated in various protected activities including: (1) sending an email on May 19, 2009 to Harris regarding “a meeting [Plaintiff] had with Alaniz, asking to meet with Harris “in reference to my religion,” (PL Ex. 8), (2) sending an email to Florentino on June 17, 2009, listing his complaints against Alaniz which he then forwarded to Barneys and Harris in the human resources department, (3) verbally complaining to Harris, Alaniz, and Chasse about Plaintiffs interactions with Alaniz, and (4) resisting Alan-iz’s ill treatment based on animus to Plaintiffs religion, (PI. Mem. 26).
Title VIPs antiretaliation provision is “construed to cover a broad range of employer conduct.” Thompson v. N. Am. Stainless, LP,
The complaint can be informal&emdash; an employee does not need to lodge a formal complaint of discrimination. See Cruz v. Coach Stores, Inc.,
However, while such complaints may be informal, they cannot be so vague or “generalized” that the employer could not “reasonably have understood[ ] that the plaintiffs complaint was directed at conduct prohibited by Title VII.” Rojas v. Roman Catholic Diocese of Rochester,
Plaintiff claims that his protected activity consists of email and verbal communications with his supervisors and the human resources department.
However, Plaintiffs communication approximately one month later to his supervisor is a protected activity. In an email sent to Florentino on June 17, 2009, Plaintiff stated:
[M]r. Alaniz told me ... that the way I dressed was not professional and that me attending religious services was in violation of the operations regulations. [I] questioned him about his tactics because it appeared to me that he was trying to make me choose between my job and my religion. [I] even mentioned to him about federal laws to prevent such incidents from [occurring, his response was that me attending religious services was at his discretion .... [h]e even accused me of stealing company time when [I] go to services.
(Pl. Ex. 13 at 2). Plaintiff forwarded this email to Barneys and Harris on June 19, 2009. (Id. at 1.) Such language falls within the scope of the type of “informal” complaints to management that are protected by Title VII. See Hubbard v. Total Commc’ns, Inc.,
Plaintiff also argues that he engaged in protected activity each time he “defended himself against Alaniz’s actions,” such as “defending his right to attend Friday prayers.” (PL Mem. 26-27.) Although resistance to discrimination has been found to be protected activity under Title VII, courts in the Second Circuit are divided on this issue. Compare Johnson v. Medisys Health Network, No. 10-CV-1596,
According to Plaintiffs view of the facts, he told Alaniz that he was required by his faith to attend Friday prayers, and when Alaniz told him that his ability to take an extended lunch in order to attend was subject to Alaniz’s discretion, Plaintiff continued to attend. Plaintiff explains that this continued attendance was his form of resisting Alaniz’s wrongful efforts to make Plaintiff choose between his job and his religion, and in his email of June 17, 2009 to Florentino, which was forwarded to Barneys and Harris on June 19, 2009, Plaintiff complained that Alaniz’s comments “appeared to me that he was trying to make me choose between my job and my religion.” (PL Ex. 13 at 2.) The Court assumes for purposes of this motion that Plaintiffs resistance can be construed as a form of opposing Alaniz’s actions as discriminatory. In sum, Plaintiffs email communications of June 17, 2009 to Flo-rentino, which was forwarded on June 19, 2009 to Barneys and Harris, were protected activity, and the Court assumes without deciding that Plaintiffs continuing to attend Friday prayers was also protected activity.
In addition, because the emails were sent to Plaintiffs supervisor Floren-tino and forwarded to individuals in the human resources department, Defendants had knowledge of those emails. Plaintiff does not have to prove that other specific actors knew of the protected activity as long as Plaintiff can demonstrate general corporate knowledge. See Gordon v. New York City Bd. of Educ.,
2. Adverse Actions
Plaintiff alleges the same adverse actions under his retaliation claim as he did with respect to his discrimination claim: (1) the termination of the mosque as an enrollment site, (2) the generation of a counseling memorandum and counseling session on or around August 17, 2009, regarding excessive unscheduled absences, (3) Plaintiffs suspension in connection with fraud charges, and (4) Plaintiffs transfer to the Bronx after he was reinstated. In addition, Plaintiff claims that Defendants retaliated against him by eliminating his ability to use compensatory time to attend Friday prayers. (PL Opp. 26-27.)
To establish an adverse action for purposes of a retaliation claim, “[a] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Fincher,
A. Use of unpaid leave
Construing the facts in the light most favorable to Plaintiff, requiring him to use unpaid leave, rather than compensatory time, to attend Friday prayers does have a
B.Disciplinary charges and suspension
As discussed above, the initiation of fraud charges against Plaintiff, which resulted in a suspension without pay, is a “materially adverse” action taken against Plaintiff. See Burlington Northern,
C.Termination of Mosque as enrollment site
The termination of the Masjid-Ab-Taqwa as an enrollment site, as discussed supra in part d.i.l.A.3, did not have a materially adverse impact on Plaintiff, as there is no evidence that the discontinuation harmed Plaintiffs personal productivity. Although an adverse action, in the retaliation context, does not have to be related to the terms and conditions of employment, no reasonable employee would have found the discontinuance of the mosque as one enrollment site out of many to be materially adverse. While Plaintiff had “good community standing” at the mosque and may have had a personal preference to be stationed there, it remained one among many sites to which Plaintiff was assigned by his supervisors. In this sense, the discontinuance of the mosque as an enrollment site is tantamount to a reassignment of tasks and is not an adverse action. See Cayemittes v. City of New York Dep’t of Hous. Pres. & Dev.,
D.Counseling memorandum
The counseling memorandum issued to Plaintiff on August 17, 2009, with a copy to Chasse and the human resources department, can be considered a materially adverse action, in the retaliation context. A formal reprimand can be an adverse action for purposes of a retaliation claim, “even when ... the letter does not directly or immediately result in any loss of wages or benefits, and does not remain in the employment file permanently,” because “it can reduce an employee’s likelihood of receiving future bonuses, raises, and promotions, and it may lead the employee to believe (correctly or not) that his job is in jeopardy.” Millea v. Metro-N. R. Co.,
Although the Second Circuit has found that rescinded discipline cannot constitute material adversity, where an employee is never placed in an active disciplinary process, see Tepperwien,
E. Transfer to the Bronx
Plaintiffs transfer to the Bronx upon his reinstatement in December 2009 is not an action that a reasonable employee would find to be adverse, particularly in light of the fact that the transfer was provided as a mutually-desirable way to remove Plaintiff from a worksite with Florentino and Alaniz. “A lateral job transfer that does not affect an employee’s salary or title may be the basis for a Title VII retaliation claim only if the reassignment would have been viewed by a reasonable employee as being materially adverse.” Kaytor v. Elec. Boat Corp.,
In sum, the Court will consider (1) the disciplinary charges resulting in a 60-day suspension, (2) the August 17, 2009 counseling memorandum issued in connection with excessive absences, and (3) the requirement that Plaintiff use either annual
3. Causal Connection
Plaintiff argues that the adverse actions took place between April 2009 through January 2010, and occurred in close temporal proximity to Plaintiffs protected activity, thereby establishing a causal connection for purposes of his prima facie case. (PI. Mem. 28.)
“[A] plaintiff can indirectly establish a causal connection to support a discrimination or retaliation claim by showing that the protected activity was closely followed in time by the adverse employment action.” Gorzynski,
Of the adverse actions established by Plaintiff, the termination of his use of compensatory time to attend Friday prayers took place prior to any protected activity. The first protected activity that Plaintiff engaged in was his June 17, 2009 email to Florentino complaining about Alaniz’s conduct. Because this email was sent subsequent to, and as a result of, the conversation with Alaniz in which Alaniz informed Plaintiff that he was required to use either annual leave or unpaid leave to attend Friday prayers, the email cannot be the cause of the allegedly retaliatory action
The remaining two adverse actions— the August 2009 counseling memorandum and session, and the October 2009 suspension — occurred two and four months, respectively, after Plaintiffs email communication of June 17, 2009. Plaintiff was formally charged with fraud on October 16, 2009, and the final decision suspending Plaintiff for 60 days without pay took place on or about October 29, 2009. (Def. 56.1 ¶ 107; PI. 56.1 ¶ 107; Def. Ex. V, Letter dated Oct. 16, 2009; Def. Ex. Y.) The lapse of four months between Plaintiffs June 17, 2009 email to Florenti-no and his pre-hearing suspension is sufficient to establish a causal connection at the prima facie stage. See Gorzynski
ii. Non-Discriminatory Reason
“Once the plaintiff has established a pri-ma facie showing of retaliation the burden shifts to the employer to articulate some legitimate, non-retaliatory reason for the employment action.” Vivenzio v. City of Syracuse,
Defendants have satisfied their burden of production in articulating a nondiscriminatory reason for initiating fraud charges against Plaintiff and for issuing the counseling memorandum and scheduling a counseling session.
iii. Pretext
Although Plaintiff has established a prima facie case of retaliation, Plaintiff cannot prove that but for his email complaints and his resistance to Alaniz’s behavior, he would not have been suspended for sixty days without pay. Under the recent Supreme Court decision in Nassar, “Title VII retaliation claims must be proved according to traditional principles of but-for causation.... This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” 570 U.S. at -,
Defendants argue that Plaintiff cannot meet his burden to show causation at this pretext stage, where mere temporal proximity is insufficient. (Def. Mem. 17.) Plaintiff argues that Defendants’ failure to provide legitimate reasons for the actions that it took is evidence of pretext, and concludes that “a jury may reasonably] conclude that the employer’s decision was motivated by an intent to retaliate.” (PI. Mem. 29-30.) As discussed supra in section II.d.i.3, Plaintiff cannot meet his burden to show that Defendant’s stated reasons for initiating disciplinary charges against Plaintiff and the concomitant pre-hearing and post-hearing suspensions are pretextual. Plaintiffs reliance on the entirely speculative allegation that the charges were fabricated is insufficient to meet his burden at this stage.
Plaintiff argues that Defendants’ reasons for generating the August 17, 2009 counseling memorandum were entirely fabricated and therefore pretextual. (Tr. 40:20-41:5.) Plaintiff asserts that he was at work on the days that he was marked as absent. However, other than Plaintiffs conclusory statement that he was not absent, there is no other evidence in the record to support this claim. This claim, standing alone, is insufficient to establish that Defendants’ reason for generating the memorandum is pretextual.
In sum, while Plaintiff can state a prima facie case of retaliation under Title VII, he cannot establish that, but for his June 17, 2009 email complaints (forwarded to Harris and Barneys on June 19, 2009) about the lack of accommodation to his religious needs, and Plaintiffs “resistance” to Alan-iz’s conduct, he would not have been suspended or issued the counseling memoran
e. Hostile Work Environment Under Title VII, the NYSHRL and § 1983
Plaintiff argues that the totality of events between April and October 2009 demonstrate a hostile work environment claim. (PI. Mem. 30-31.) Defendants argue that the incidents relied on by Plaintiff to establish a hostile work environment are, at best, “episodic” or “boorish,” but not “severe or pervasive” as required under Title VII and the NYSHRL. (Def. Mem. 18, 20.)
In order to establish a hostile work environment claim under Title VII, a plaintiff must produce evidence that the complained of conduct “(1) is objectively severe or pervasive — that is, creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiffs sex, or another protected characteristic.”
While “the central statutory purpose [of Title VII was] eradicating discrimination in employment, Title VII does not set forth a general civility code for the American workplace.” Redd v. New York Div. of Parole,
Plaintiff alleges the following facts in support of his hostile work environment claim: (1) Alaniz’s purportedly derogatory comments about Plaintiffs religious dress, (2) Alaniz’s refusal to allow Plaintiff to arrive late at the April 3, 2009 meeting, (3) the termination of Plaintiffs use of compensatory time to attend prayers, (4) termination of the Mosque as an enrollment site, (5) scheduling Plaintiff for a counseling session in August 2009 based on excessive absences, (6) Plaintiffs October 2009 suspension, and (7) the deposition of Steven Rovt in which Rovt describes feeling intimidated or singled out for being Jewish. (PI. Mem. 31.) In weighing the “the totality of the circumstances” the Court concludes that these incidents, even when considered in the aggregate, did not create a workplace “so severely permeated with discriminatory intimidation, ridicule, and insult, that the terms and conditions of [Plaintiffs] employment were thereby altered.” See Mills,
The Court assumes without deciding that the incidents that have an arguable connection to Plaintiffs attendance at Friday prayers or to Plaintiffs religion— Alaniz’s comments that Plaintiffs religious garb is “unprofessional according to American culture,” and that Plaintiff was “stealing time” by not formally documenting his extended lunch on Fridays to attend prayer, his refusal to approve Plaintiffs late arrival at the April 3, 2009 meeting, his termination of Plaintiffs use of compensatory time to attend Friday prayer, and his discontinuance of the mosque as a work site — are discriminatory. However, even assuming that they are, they do not, individually or collectively, provide sufficient support to satisfy the high burden of showing that Plaintiff was subjected to “severe or pervasive” hostility because of religion.
Plaintiff is required to show that “a single incident was extraordinarily severe, or that a series of incidents were ‘sufficiently continuous and concerted’ to have altered the conditions of [his] working environment.” See Alfano,
As for the remaining incidents — Plaintiffs suspension without pay in October 2009 and the August 2009 counseling memorandum and session — there is no evidence, as discussed supra in part II.d.i.l.B, that either of these actions were “because of’ Plaintiffs religion. See Alfano,
In support of his hostile work environment claim, Plaintiff presents a sworn deposition testimony of a former employee of Metro Plus, Steve Rovt. Plaintiff proffers this testimony as further proof that Metro Plus subjected Plaintiff to a hostile work environment on the basis of his religion because Metro Plus has a pattern of discriminating against religious minorities. Steven Rovt is an Orthodox Jew. (PL
In sum, because Plaintiff has not produced any evidence to show that he was subject to either a “severe” or “pervasive” hostile work environment amounting to an alteration in Plaintiffs work conditions, the Court grants summary judgment to Defendants on Plaintiffs hostile work environment claims under Title VII, the NYSHRL and § 1983.
f. NYCHRL claims
Plaintiff brings claims of religious discrimination in violation of the NYCHRL. (Am. Compl. ¶¶ 69-76.) “District courts may decline to exercise supplemental jurisdiction over a claim if the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). “[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims.” Pension Ben. Guar. Corp. v. Morgan Stanley Inv. Mgmt. Inc.,
III. Conclusion
For the foregoing reasons, the Court grants Defendants’ motion for summary judgment as to Plaintiffs claims brought pursuant to Title VII, NYSHRL and § 1983. The Court declines to exercise supplemental jurisdiction over Plaintiffs claims brought pursuant to the NYCHRL and dismisses those claims without prejudice. The Clerk of the Court is directed to close the case.
SO ORDERED.
Notes
. Defendant Michael Stocker is the Chairman of the Board of HHC. (Def. 56.1 ¶ 2; Pl. 56.1 ¶ 2.).
. Plaintiff's Rule 56.1 Statement of Undisputed Facts omitted a response to paragraph 20 of Defendant’s Rule 56.1 Statement; as a result, the subsequent paragraphs in Plaintiffs Rule 56.1 Statement correspond to the previously-numbered paragraph in Defendant’s Rule 56.1 Statement.
. The dates on which the mosque was first appointed as an enrollment site, and later discontinued are not in the record before the Court. Plaintiff states that the mosque site was discontinued a few days after a meeting with Alaniz in which Alaniz "insulted my wearing of the thawb and negatively commented on my attendance of Friday prayers." (St. Juste Aff. ¶ 97.) The record elsewhere indicates that a meeting between Plaintiff and Alaniz, in which Alaniz commented on the wearing of the thawb and on Plaintiff's attendance at Friday prayers, took place on or about April 10, 2009. (St. Juste Aff. ¶ 51.).
. Counseling is part of Metro Plus's disciplinary process. (56.1 V 62) During counseling, management speaks with an employee and the employee’s union representative about the employee's performance, attendance or a variety of other issues. (Florentino Dep. 57:5-12.) Counseling is followed first by a warning, then a request for disciplinary action, and finally, a request for termination. (Florentino Dep. 57:20-23.) It appears from the record that a counseling memorandum is generated to apprise the employee of the situation. A counseling session is then scheduled between the supervisor, employee and his Union Representative. After this counseling session, an employee is then provided with the Counseling Record which describes the misconduct, the corrective action plan to fix the misconduct, any additional comments, and the signatures of all involved parties. (Def. Ex. Q Counseling Record for Plaintiff's April 13, 2009 Counseling.).
. It is not clear whether this counseling session had been automatically generated when Plaintiff received his Counseling Memorandum on August 17, 2009, or if it was subsequently scheduled even after Plaintiff presented doctor’s notes for the absences. Plaintiff received the notice to appear at the October 17, 2009 counseling session shortly after receiving the counseling memorandum. (St. Juste Aff. ¶ 74; see also PL Ex. 11, undated "Record of Employee Counseling Session” scheduled for October 17, 2008 [sic].) Plaintiff's affidavit indicates that the notice to appear, also referred to here as the counseling memorandum, was dated August 17, 2009. (PI. Ex. 9, St. Juste Aff. ¶ 71.) The record is also unclear as to whether a counseling session with regard to the August 17, 2009 memorandum took place in August 2009. According to Plaintiff, "a counseling session was held on April [sic] 17, 2009 and was dismissed.” (St. Juste Aff. ¶ 72). Plaintiff also refers to this incident in Plaintiff's opposition memorandum and at oral argument as a "counseling session” scheduled for August 17, 2009. (See PI. Opp. 8, Tr. 39:23-40:2.) Assuming that a formal or informal counseling session took place on or about August 17, 2009, Plaintiff concedes that the charges were dismissed at that "hearing.” (St. Juste Aff. ¶¶ 72-73.).
. According to Plaintiff, one of the elements of his reinstatement was that he no longer wear his thawb, (St. Juste Aff. ¶ 93), although this does not appear in the Stipulation. Plaintiff states that after his reinstatement, his faith in Metro Plus was so diminished that he did not try to fight this edict. (St. Juste Dep. 182:15-22.).
. The burden of proof and production for employment discrimination claims under Title VII and the NYSHRL are identical. Hyek v. Field Support Servs., Inc.,
. The Court assumes that a counseling session did take place on August 17, 2009, in which the charges against Plaintiff were dropped. See St. Juste Aff. ¶¶ 72-73.
. Even assuming that the mosque was discontinued in mid-April and any change in Plaintiff's total enrollment numbers before and after the discontinuation could be attributed entirely to its discontinuance, Plaintiffs evaluation presents at best a mixed picture. The total number of individuals recruited by Plaintiff in the months prior to May 2009 decreased from an average of 41 members in gross during the seven months prior to May 2009, to an average of 35 members in gross during the five months beginning in May 2009. However, that same comparison shows that Plaintiffs "net” enrollment figures increased from 28 members to 35 for those same time periods. Plaintiff offers no interpretation for these figures, but they undermine Plaintiff's argument that the closing of the mosque as a recruitment site adversely affected his productivity. More importantly, Plaintiff does not explain the number of enrollments that could have been attributable to the mosque location. While the evaluation indicates that Plaintiff organized two events at the mosque in early 2009, it does not show whether he recruited any individuals or otherwise improved his productivity as a result of those events.
. Contrary to Plaintiffs argument, the fact that other employees from Woodhull Hospital were granted one hour of travel time to permit them to arrive at the meeting site on time does not mean that employees were treated differently than Plaintiff; all employees were required to arrive at the meeting by 3 p.m.
. Plaintiff argues that evidence that Alaniz was subsequently discharged for falsifying his educational credentials supports the inference that "Alaniz was also capable of fabricating or forging documents to use against Plaintiff.” (PL Mem. 19.) Plaintiff also argues that the fact that Florentino drafted the August 17, 2009 counseling memo for unscheduled absences although she did not agree with the memorandum supports the inference that she was being "puppeteered” or controlled by Alaniz. (Tr. 55:14-23.) Thus, Plaintiff appears to argue that Florentino’s actions are attributable to Alaniz. Plaintiff concedes that the "direct connection between Alaniz and the fraud charges is attenuated.” (Tr. 56:11-12.) Assuming that Alaniz's past acts of falsifying documents regarding his educational credential are admissible to support Plaintiff’s argument here, see Fed.R.Evid. 404(b)(1) ("[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character”), this evidence still does not explain how Alaniz exerted enough control over Flo-rentino to persuade her to falsify the documents, as Plaintiff alleges. Furthermore, the investigation by the Compliance Department resulted in the charges and an independent individual, Barneys, concluded that, of the three enrollment documents that Plaintiff was charged with fabricating, one was likely authentic, the authenticity of one could not be determined, and one was fabricated. The opportunity for Plaintiff to raise the defense that someone other than himself had fabricated the enrollment documents was at his disciplinary hearing, where he was present with a union representative, not before this Court.
. To the extent that Plaintiff seeks to challenge Alaniz’s requirement that he appear on time for the April 3, 2009 meeting which was scheduled on a Friday afternoon when Plaintiff may have been attending Friday prayer or traveling from the mosque, such a challenge fails since Plaintiff has not shown that he was disciplined for arriving five minutes late to the meeting.
. Although Plaintiff asserts a retaliation claim under § 1983, (Tr. 2:19-24), it is not clear that such claims are cognizable in the Second Circuit. See Bernheim v. Litt,
. It is unclear whether the Supreme Court decision in Nassar, which changed the standard for establishing causation in a retaliation claim from showing that retaliation was a "motivating factor,” to showing that it is a "but-for” cause of the adverse employment action, applies to retaliation claims brought pursuant to the NYSHRL. New York State courts have yet to directly address the impact of the Supreme Court's recent holding in Nas-sar on the NYSHRL, nor has the Second Circuit had the opportunity to address this issue. See Giudice v. Red Robin Int’l, Inc.,
Traditionally, “[t]he standards for evaluating ... retaliation claims are identical under Title VII and the NYSHRL.” Kelly v. Howard I. Shapiro & Assocs. Consulting Eng'rs, P.C.,
. Plaintiff argues that he also made "verbal complaints” to his supervisors as part of his protected activity, (PL Mem. 26 (citing St. Juste Aff. 11 92)), but neither party addressed these allegations in the briefings or at oral argument, and there is no further detail about such verbal complaints in the record. Accordingly, the Court assumes that these verbal complaints occurred concurrently with the email correspondence, and treats both as one allegation.
. Defendants point to evidence in the record that Florentino, upon hearing Plaintiffs protest to the counseling memorandum, met with Plaintiff and Plaintiff’s union representative to discuss the matter, and Plaintiff produced doctor’s notes to explain the undocumented absences. While Plaintiff suggests that "perhaps Ms. Florentino is confusing the two,” Plaintiff had the opportunity to clarify this issue during Florentino's deposition and did not.
. The same standards apply to the plaintiffs hostile environment claim arising under the NYSHRL and § 1983. See Rivera v. Rochester Genesee Reg'l Transp. Auth.,