Opinion
99 Civ. 4313 (RWS).
December 4, 2000.
JEAN STEPHEN, Plaintiff Pro Se, Brooklyn, NY.
LAWRENCE N. ROGAK, LLC, Attorney for Defendant, Oceanside, NY. By: EILEEN H. PERSKY, ESQ., Of Counsel.
OPINION
Defendant Maximum Security Investigations, Inc. ("Maximum") has moved under Rule 56, Fed.R.Civ.P., to dismiss the complaint of plaintiff pro se Jean Stephen ("Stephen") alleging discriminatory discharge for practicing his religion. For the reasons set forth below, the motion is granted.
Prior Proceedings
The initial pro se complaint in this matter alleging discrimination on the basis of religion was filed on June 15, 1999, and was amended on February 29, 2000 to change the dates of the religious convention, originally alleged to have been on August 28, 29 and 30, 1996 to August 2, 3 and 4, and to change the date of termination from August 31, 1996 to August 6, 1996; and to substitute the defendant employer Maximum for the original named defendant.
The pro se amended complaint asserts one cause of action only against defendant Maximum: a claim of termination because of his faith or religion and, arguably, a claim for failure to accommodate religious preferences, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
The parties exchanged documents and Maximum took the deposition of Stephen on April 20, 2000. The instant motion was deemed fully submitted on November 22, 2000.
The Facts
The facts set forth below are gleaned from Maximum's Rule 56.1 statement, Stephen's deposition transcript, and the affidavits and exhibits, with any factual inferences drawn in Stephen's favor. They do not constitute findings of fact by the Court.
Stephen did not submit a Rule 56.1 Statement.
Maximum has provided security services and private investigations to the commercial and business communities since October 1983. It is a state licensed and mid-size company in the industry employing about 130 employees, principally as security guards.
Stephen has been a member of the Jehovah's Witnesses since about 1995 and testified that Jehovah's Witnesses do not observe any particular day as a holy or Sabbath day when working is prohibited. Stephen preferred not to work on Wednesday afternoons when his prayer meetings were held and concedes he was given Wednesday afternoons off at Maximum. Stephen's religion requires him to proselytize every day at every opportunity. Generally, there are no particular forms of observance that would conflict with his availability for work, although he states he would work only the night shift on Sundays. At the time Stephen was hired by John Cortes ("Cortes"), the hiring manager for Maximum, on May 30, 1996, Stephen was aware that a three-day religious convention was scheduled for August 2, 3 and 4, 1996 that he wished to attend. However, he did not advise his employer at the time he was hired or ask for any other accommodation.
At the time of his employment, Stephen represented that he was seeking a full-time permanent position, which amounted to an eight-hour shift five days per week. Stephen was hired as a full-time permanent security guard at $5.00 per hour and during his employment was assigned to various client locations throughout the city as well as being assigned to the Maximum office as a standby relief for absent security guards. Stephen was not entitled to any paid sick or annual leave and was required to call in four hours ahead of his scheduled tour to notify his supervisor if he was going to be absent.
The Employee Handbook, which is given to each and every employee upon appointment, including Stephen, clearly states that Maximum is an equal opportunity employer who does not discriminate on the basis of religion or any other basis. Maximum employs several individuals who are members of the Jehovah's Witnesses. Anthony McGregor, Stephen's supervisor while he worked at COMPUSA, has been employed since 1995 and belongs to the Jehovah's Witnesses.
The Employee Handbook states that:
The absence of any employee, including reporting late or quitting early, means less service to our customers and additional workloads for other personnel. For these reasons, it is expected that you will be present and on time each day you are scheduled to work. Perfect Attendance is the goal! Anything less may result in counseling and/or corrective action.
(Employee Handbook at p. 16.)
Stephen was absent without calling on July 15, he appeared one hour late to work on July 18, and on August 1 he notified his supervisor one or two hours before his shift that he had overslept and would not appear for work. He did not appear or call on August 2, 3, and 4, the dates he alleges that he attended a religious convention. He did not appear or call on August 5.
Stephen did not ask Cortes for permission to attend the three-day conference, but testified that he notified a "lady" at the office, probably the receptionist or dispatcher, who he concedes did not have authority to grant leaves. According to Stephen, one week before the convention he reminded Cortes of the convention, who allegedly responded, "No problem," an allegation Cortes denies. Stephen did not submit a note or leave slip or receive written approval for his request. When he called the office on August 1 to advise that he would not appear for work, he did not confirm any permission to attend the conference on August 2, 3 and 4.
When Stephen appeared for work on August 6, 1996, he was summarily terminated by Cortes.
Maximum contends that its decision to terminate Stephen was based on his pattern of "no-calls/no shows," his failure to follow his supervisor's directions, and his apparent lack of availability for work. Stephen's last full week on the payroll was the week ending July 27, 1996. In all, Stephen worked two months at Maximum. He worked only 22.25 hours his last full week of work.
Stephen has alleged that being assigned to the office as a standby relief worker was not part of his job and did not require him to report on time although he received the same rate of pay whether he reported to the office to or a client location.
Cortes made two remarks to Stephen which Stephen contends were disparaging of his faith. The first comment was "I don't care what religion a person is," as to which comment Stephen was unable to establish a context, time or place it occurred but which was admittedly unrelated to his termination. The second statement was "Say goodby to Jehovah for me," made at the time Cortes discharged Stephen. No other statements or bases for the claim of religious discrimination are asserted by Stephen.
Prior to working at Maximum, Stephen had been unemployed for more than one year. Subsequent to his termination, Stephen was unemployed for almost two years and did not mitigate his damages.
Discussion
I. Standard for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides that a motion for summary judgment may be granted when "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The Second Circuit has repeatedly noted that "as a general rule, all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party." Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 330 n. 2 (1986) (Brennan, J., dissenting)); see Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir. 1995); Burrell v. City Univ., 894 F. Supp. 750, 757 (S.D.N Y 1995). If, when viewing the evidence produced in the light most favorable to the nonmovant, there is no genuine issue of material fact, then the entry of summary judgment is appropriate. See Burrell, 894 F. Supp. at 758 (citing Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991)).
Materiality is defined by the governing substantive law. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[T]he mere existence of factual issues — where those issues are not material to the claims before the court — will not suffice to defeat a motion for summary judgment." Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985).
For a dispute to be genuine, there must be more than "metaphysical doubt." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
Additional considerations factor into a summary judgment motion in an employment discrimination action. See Gallo v. Prudential Residential Services, L.P., 22 F.3d 1219, 1224 (2d Cir. 1994); see also Montana v. First Fed. Sav. Loan Ass'n, 869 F.2d 100, 103 (2d Cir. 1989); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). Because writings directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer's documents, a trial court must be particularly cautious about granting summary judgment when the employer's intent is at issue. Affidavits and depositions must be scrutinized for circumstantial evidence which, if believed, would show discrimination. See Gallo, 22 F.3d at 1224. This does not suggest, however, that summary judgment is never appropriate in an employment discrimination action. The Second Circuit has made clear that the "impression that summary judgment is unavailable to defendants in discrimination cases is unsupportable." McLee v. Chrysler Corp., 38 F.3d 67, 68 (2d Cir. 1994); see Meiri, 759 F.2d at 998.
Where no evidence exists or only conclusory allegations of discrimination have been offered to suggest that an employer's motives are improper, summary judgment may be appropriate. See Meiri, 759 F.2d at 998; see also Woroski v. Nashua Corp., 31 F.3d 105, 109-10 (2d Cir. 1994). After all, a party seeking to defeat a summary judgment motion cannot rely upon "conclusory allegations or denials," but rather must set forth "`concrete particulars'" showing that a trial is needed. National Union Fire Ins. Co. v. Deloach, 708 F. Supp. 1371, 1379 (S.D.N.Y. 1989) (quoting R.G. Group, Inc. v. Horn Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984)). Mere speculation or conjecture as to the true nature of facts cannot overcome the motion. See Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir. 1995); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986). The responding party "must show the existence of a disputed material fact in light of the substantive law." Peer Int'l Corp. v. Luna Records, Inc., 887 F. Supp. 560, 564 (S.D.N Y 1995). In the absence of any disputed material fact, summary judgment is appropriate.
II. The Legal Standards Governing Title VII
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 with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . religion. . . ." 42 U.S.C. § 2000e-2 (a)(1); see also 42 U.S.C. § 2000e(j).
The "ultimate issue" in any employment discrimination case is "whether the plaintiff has met her burden of proving that the adverse employment decision was motivated at least in part by an `impermissible reason.'" Stratton v. Department for the Aging, 132 F.3d 869, 878 (2d Cir. 1997). The basic framework for Title VII discrimination claims is the three-step burden shifting analysis developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under McDonnell, in a termination case the plaintiff has the initial burden of establishing a prima facie case of unlawful race discrimination by showing that he is (1) a member of a protected class (2) who was qualified for the position, (3) who suffered an adverse employment action, (4) under circumstances giving rise to an inference of discrimination. See McDonnell, 411 U.S. at 802; Austin v. Ford Models, Inc., 149 F.3d 148, 152 (2d Cir. 1998); see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). The requirements for establishing a prima facie case are not onerous. See Hicks, 509 U.S. at 506; Austin, 149 F.3d at 152.
If a plaintiff makes out a prima facie case, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory purpose for the adverse employment decision. See McDonnell, 411 U.S. at 802; Austin, 149 F.3d at 153; Woroski, 31 F.3d at 108. "This burden is one of production, not persuasion." Reeves v. Sanderson Plumbing Prods., Inc., ___ U.S. ___, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 105 (2000).
Once the employer articulates such a purpose, the burden shifts back to the plaintiff to show by a preponderance of the evidence that the "employer's proffered reasons are shown to be a pretext for discrimination." Austin, 149 F.3d at 153 (citations omitted). The presumption of discrimination "drops out of the picture" once the defendant meets its burden of production. See Reeves, 120 S.Ct. at 2106 (quoting Hicks, 509 U.S. at 510). However, the trier of fact may consider the evidence establishing the plaintiff's prima facie case "and inferences properly drawn therefrom" in determining whether the defendant's explanation is pretextual. See Reeves, 120 S.Ct. at 2106 (quoting Burdine, 450 U.S. at 255, n. 10). Indeed, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit a jury to find intentional discrimination. See Reeves, 120 S.Ct at 2108-09.
In order to demonstrate a prima facie case of religious discrimination based on failure to accommodate, plaintiff must demonstrate that "(1) he . . . has a bona fide religious belief that conflicts with an employment requirement; (2) he . . . has informed the employer of this belief; [and] (3) he . . . was disciplined for failure to comply with the conflicting employment requirement." Hussein v. Hotel Employees and Restaurant Union, 108 F. Supp.2d 360, 368 (S.D.N.Y. 2000) (citing Ansonia Bd. of Educ. v. Philbrook, 79 U.S. 260, 65-66 (1986)) (internal quotation marks and citation omitted); see Weber v. Roadway Exp., Inc., 199 F.3d 270 273 (5th Cir. 2000) (citing Brener v. Diagnostic Center Hosp., 671 F.2d 141, 144 (5th Cir. 1982)). If the plaintiff establishes a prima facie case, then the burden shifts to the employer to demonstrate that no reasonable accommodation was possible without subjecting it to undue hardship. See Hussein, 108 F. Supp.2d at 370 n. 8 (citing Cook v. Chrysler Corp., 981 F.2d 336, 339 (8th Cir. 1992).
III. Summary Judgment Will Be Granted
A. Stephen Has Not Met His Burden To Show A Discriminatory Discharge
Stephen has satisfied two elements of a prima facie case for discriminatory termination, namely, he is a member of a protected class (he is an adherent of the Jehovah's Witnesses), and he was discharged. Maximum contends that Stephen has not satisfied the other two elements of a prima facie case, however, because (1) his absenteeism record rendered him unavailable for work as needed and, therefore, not qualified for the position, and (2) he has not shown circumstances giving rise to an inference of discrimination.
Although Stephen's prima facie case is weak, it will be assumed arguendo that he has met his de minimis burden. See Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995); Velasquez v. Goldwater Mem'l Hosp., 88 F. Supp.2d 257, 261 (S.D.N.Y. 2000); see also Griffin v. Ambika Corp., 103 F. Supp.2d 297, 307 (S.D.N Y 2000) (assuming prima facie burden met and noting that Reeves decision eliminates for all practical purposes potential distinction between evidence used to meet prima facie burden and evidence used to show pretext). However, Stephen has not made a sufficient showing to rebut Maximum's asserted non-discriminatory reason for firing him, i.e., his absenteeism.
Stephen claims that he was given permission by Cortes, his supervisor, to attend a three-day religious convention and then terminated when he returned from a five-day absence, during which he failed either to show up or call. Stephen also points to two remarks made by Cortes, which he interprets as disparaging references to his faith.
Stephen testified that he called an unnamed "lady" in the office — either a dispatcher or receptionist — whom he concedes did not have the authority to grant such leaves and assumed that she had conveyed the request to Cortes and that one week before the convention he told Cortes he would attend the three-day convention and Cortes is alleged to have responded, "No problem." However, when Stephen testified he called the office on August 1 to advise he would be absent that day, he states that he did not seek permission to attend the conference on August 2, 3 and 4. Stephen had been previously scheduled and expected to work at least on Thursday, August 1, Friday, August 2, either Saturday, August 3, or Sunday, August 4, and August 5.
Stephen does not dispute that: (1) he was absent without calling on July 15; (2) he was an hour late reporting to work on July 18; (3) he failed to appear for work on August 1, stating he had "overslept" and could not make it in; (4) he failed to appear or call on August 2 (arguably a scheduled day of work); (5) he failed to appear or call on August 3; (6) he failed to appear or call on August 4; and (7) he failed to appear or call for reassignment on August 5. Indeed, with the absence on August 5, Stephen actually exceeded the three days off he asserts he was granted.
Stephen's history of "no-shows/no-calls" and the perception of his increasing unavailability for work constituted a legitimate, nondiscriminatory reason for his termination. See Bottini v. Sandore Mgmt. Corp., No. 83 Civ. 8000, 1987 WL 16147 (S.D.N.Y. August 18, 1987) (finding after bench trial that plaintiff had not established prima facie case of religious discrimination, where plaintiff, a Jehovah's Witness, was not entitled to longer absences than other employees to attend church on his scheduled Sundays and where plaintiff's inability to perform assigned tasks and lack of cooperation rendered him unqualified for job); see also Jaffe v. Aetna Casualty and Surety Co., No. 93 Civ. 0385, 1996 WL 337268 at 3-6 (S.D.N.Y. June 19, 1996) (plaintiff's claim he was not selected for management job because he was Jewish did not raise a triable issue as to whether circumstances gave rise to inference of discrimination where employer's proffered legitimate reason for not promoting plaintiff was supported by record).
Indeed, as held by the Second Circuit, it is not the province of the court to "second-guess" an employer's decision-making with respect to an employee's job performance:
In determining whether an employee's job performance is satisfactory, courts may — as they often must — rely on the evaluations rendered by supervisors. After all, job performance cannot be assessed in a vacuum; the ultimate inquiry is whether an employee's performance "meets his employer's legitimate expectations."
Meiri, 759 F.2d at 995 (granting summary judgment for employer where employer held "honest belief that [employee's] job performance simply did not measure up").
Finally, the remarks made by Cortes fail to establish a pattern of religious discrimination. In Kazin v. Metro-North Commuter R.R., 91 Civ. 1331, 1994 WL 68167 (S.D.N.Y. February 28, 1994), a Jewish plaintiff alleged that a decision-maker distributed a Jewish joke, told the plaintiff that he "did not fit the corporate culture," and said that he did not want the plaintiff to explain something in "talmudic detail." Id. at *14. These statements were insufficiently concrete to defeat a defendant's motion for summary judgment because they were neutral on their face and did not specifically refer to the fact that plaintiff was Jewish or to the suitability of plaintiff or Jews in general for employment. Id. at *16-*19. Similarly, in Bottini v. Sadore Mgmt. Corp., No. 83 Civ. 8000, 1987 WL 16147 (S.D.N.Y. August 18, 1987), the plaintiff, a Jehovah's Witness, alleged his supervisor made disparaging remarks about his religious beliefs and practices when he referred to the plaintiff as a "holy roller," which he defined as one who is a religious fanatic. Id. at *11. The court held that the characterization hardly reflects adversely upon the Jehovah's Witnesses, "admittedly, a respected religious sect." Id. Here, the statements attributed to Cortes do not reflect adversely upon the Jehovah's Witnesses. They fail to satisfy Stephen's burden to that the reason asserted by Maximum for his discharge — i.e., his absences — was pretextual.
Therefore, summary judgment is warranted because Stephen cannot demonstrate, as he must, that the legitimate, nondiscriminatory reasons for his termination were pretextual — i.e., that Maximum's attendance and tardiness-based reasons for terminating plaintiff were false, and that plaintiff's religion was in fact the real reason for his termination. See Hicks, 509 U.S. 502.
B. Stephen Has Not Met His Burden To Show A Failure To Accommodate His Religious Beliefs
Stephen has failed to make a sufficient showing of failure to accommodate his religious beliefs to establish a prima facie case. More specifically, he has not made a sufficient showing as to the third element, i.e., that he was terminated for failure to comply with an employment requirement that conflicted with his religion, rather than for his absenteeism record as a whole. In addition to the incidents in July (one absence without calling in and one instance of reporting an hour late), Stephen was absent in August not only for the three days of the religious convention but also on the day preceding and the day after that event. This evidence is insufficient as a matter of law to establish a prima facie case of a failure to accommodate his religion.
C. Supplemental Jurisdiction Is Declined
To the extent that the amended complaint alleges a claim of religious discrimination under New York State or New York City Human Rights Laws, supplemental jurisdiction over those claims will be denied because the standards under those laws are the same as under Title VII and, as discussed above, Stephen has failed to make the necessary showing under Title VII. See Schibrat v. N.Y.S. Housing Fin. Agency, No. 96 Civ. 2004, 1998 WL 118171, at *4 (S.D.N.Y. 1998) (citing Tomka, 66 F.3d at 1305 n. 4).
Moreover, Stephen's filing of his complaint initially with the New York State Division of Human Rights constituted a binding "election of remedies" that conferred exclusive jurisdiction on the Division, absent a dismissal on grounds of "administrative convenience." See N.Y. Exec. Law § 297(9); Kelber v. Forest Elec. Corp., 799 F. Supp. 326, 341 (S.D.N.Y. 1992). Here, the Division concluded its determination and made a finding of "No Probable Cause" as to Stephen's claim of religious discrimination. Thus, Stephen's state law claim is barred. In addition, with respect to any claim Stephen may assert under the New York City Human Rights Law, Stephen has failed to exhaust his administrative remedies and failed to allege compliance with the conditions precedent to a civil suit based on a violation of this law. See N.Y.C. Admin. Code. § 8-107; Branker v. Pfizer, 981 F. Supp. 862, 865 (S.D.N.Y. 1997).
Conclusion
Therefore, for the reasons set forth above, the motion for summary judgment is granted and the complaint in this action is dismissed in its entirety.
It is so ordered.