Under these principles, in the present case, HRA's policy of
allowing plaintiff to take unpaid leave to observe Jewish
holidays, without more, does not constitute a violation of
Title VII. Plaintiff has not alleged that his position was
jeopardized by virtue of his religious observance. Nor has he
alleged that HRA applied its leave policy in a discriminatory
fashion. Plaintiff has not shown a failure to accommodate his
2. Retaliation. Section 704(a) of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-3(a), provides that "[i]t shall be an
unlawful employment practice for an employer to discriminate
against any of his employees . . . because he has opposed any
practice made an unlawful employment practice by this
subchapter. . . ." The purpose of this section is to forbid an
employer from retaliating against an employee who has opposed
an unlawful employment practice. Manoharan v. Columbia Univ.
College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.
1988). The statute does not proscribe every personnel decision
that has an adverse impact on an employee. Grove v. Frostburg
Nat. Bank, 549 F. Supp. 922, 944 (D.Md. 1982). Only those
actions that are discriminatory may serve as the basis of a
retaliation claim. Id. (retaliation claim dismissed where
employer cancelled insurance coverage for prescription drugs
for all employees).
In the present case plaintiff contends that HRA's deduction
of the 50 1/2 hours of paid leave constituted retaliation for
his protests against HRA's refusal to advance him annual leave
time for observance of Shemini Atzereth and Simchath Torah.
Plaintiff's retaliation claim must fail, however, because there
is no allegation that HRA treated him differently from other
employees. In deducting the 50 1/2 hours of paid leave, HRA was
not applying a special leave policy against plaintiff in
particular. HRA was applying the provisions of Informational
No. 82-35, a list which governs the leave policy for all HRA
workers. Although plaintiff may view HRA Informational 82-35 as
unfair, there is no allegation that the list is discriminatory
or that it was applied in a discriminatory fashion.
3. Hostile Environment. It is well established that a working
environment overrun by discriminatory antagonism, which has
been termed a "hostile environment", constitutes a violation of
Title VII, 42 U.S.C. § 2000e-2(a)(1). Snell v. Suffolk County,
782 F.2d 1094, 1102 (2d Cir. 1986). As stated in Snell, "a
discriminatory and offensive work environment so heavily
polluted with discrimination as to destroy completely the
emotional and psychological stability of minority group
workers" may violate Title VII. Id. at 1102-1103 [citation
omitted]. To establish a hostile atmosphere, plaintiff must
demonstrate that the religious enmity was pervasive. Id. at
1103. Casual comments or sporadic conversation will not trigger
equitable relief pursuant to the statute. Id.
In the present case plaintiff has not pleaded facts giving
rise to a hostile work environment claim. Plaintiff's complaint
details intense friction between his HRA co-workers and him.
However, the friction of which plaintiff complains was not
motivated by religious discrimination; plaintiff does not
allege even a single hostile comment pertaining to his
religious beliefs. Plaintiff alleges that the acrimony stems
from personality conflicts. Undoubtedly, such friction creates
an uncomfortable working atmosphere, but it does not support a
claim cognizable under Title VII.
In sum, plaintiff has alleged no set facts upon which a
violation of Title VII can be found and his conclusory claims
of discrimination are not persuasive. Accordingly, plaintiff's
Title VII claim must be dismissed. See Martin v. New York State
Department of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978).
B. The First, Eighth and Fourteenth Amendments.
The complaint alleges that defendants violated plaintiff's
rights under the first amendment. The question presented is
whether the economic impact of losing a day's wages in order to
observe a religious holiday is a denial of freedom of religion.
See Pinsker, 735 F.2d at 391. In determining whether an
employer's leave policy offends the first amendment, a court
must decide whether the policy puts "substantial pressure on an
adherent to modify his behavior and to violate his beliefs."
Id. (citing Thomas v. Review Board of the Indiana Employment
Security Division, 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624
(1981)). It is well settled that, without more, "[l]oss of a
day's pay for time not worked does not constitute substantial
pressure on [an employee] to modify his or her behavior" and is
consistent with the first amendment. Pinsker, 735 F.2d at 391.
Accordingly, plaintiff's first amendment claim is dismissed.
The complaint also alleges that jurisdiction is based, in
part, on the eighth and fourteenth amendments to the
Constitution. However, plaintiff has alleged no set of facts
which can be construed to show a violation of the eighth
amendment's prohibition of cruel and unusual punishment or the
fourteenth amendment's guarantee of due process. Therefore,
those claims are dismissed.
C. Sections 1981 and 1985.
It is well established that 42 U.S.C. § 1981 is primarily
grounded in racial discrimination and does not apply to actions
alleging religious discrimination. Runyon v. McCrary,
427 U.S. 160, 167, 96 S.Ct. 2586, 2592-93, 49 L.Ed.2d 415 (1976).
Because plaintiff in the present case has alleged only
religious discrimination, his cause of action pursuant to §
1981 must be dismissed.
In order to state a claim under 42 U.S.C. § 1985, a plaintiff
must show both a conspiracy to violate his or her
constitutional rights and racial or other class-based
discriminatory animus behind the conspirators' actions. Greene
v. Brown, 535 F. Supp. 1096, 1099 (E.D.N.Y. 1982). Plaintiff's
complaint does not satisfy either prong of the requirement
because it does not allege that any defendant conspired to take
any kind of discriminatory action against him.
D. Rehabilitation Act of 1973 and
42 U.S.C. § 2000d-1.
The Rehabilitation Act of 1973, 29 U.S.C. § 794(a), prohibits
discrimination against qualified handicapped individuals in any
program or activity receiving federal funding. Plaintiff stated
that in 1981 he had "had documented mental health problems."
However, there is no evidence that plaintiff has or had a
physical or mental impairment which substantially impairs one
of his "major life activities," or that he has been regarded as
having such an impairment. See 29 U.S.C. § 706(8)(B).
Furthermore, there is no allegation that HRA receives federal
funding. Accordingly, plaintiff has not stated a claim under §