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MAN-OF-JERUSALEM v. HILL

August 14, 1991

BEN-SIYON BRASCH MAN-OF-JERUSALEM, PLAINTIFF,
v.
STANLEY HILL, AS EXECUTIVE DIRECTOR OF NEW YORK CITY DISTRICT COUNCIL 37 OF AMERICAN FEDERATION OF STATE, COUNTY & MUNICIPAL EMPLOYEES; GUIDO MENTA, AS DIVISION DIRECTOR OF PROFESSIONAL AND WHITE-COLLAR DIVISION OF NEW YORK CITY DISTRICT COUNCIL 37 OF AMERICAN FEDERATION OF STATE, COUNTY & MUNICIPAL EMPLOYEES; ROBERT CRILLY, AS PRESIDENT OF LOCAL 2627 OF NEW YORK CITY DISTRICT COUNCIL 37 OF AMERICAN FEDERATION OF STATE, COUNTY & MUNICIPAL EMPLOYEES; DAVID DINKINS, AS MAYOR OF THE CITY OF NEW YORK; BARBARA J. SABOL, AS ADMINISTRATOR/COMMISSIONER OF THE HUMAN RESOURCES ADMINISTRATION OF THE CITY OF NEW YORK; PAUL ROTH, PERSONALLY AND AS AN EXECUTIVE OF THE HUMAN RESOURCES ADMINISTRATION OF THE CITY OF NEW YORK; GARY WISELTIER, PERSONALLY AND AS AN EXECUTIVE OF THE HUMAN RESOURCES ADMINISTRATION OF THE CITY OF NEW YORK; LOUIS LISTA, PERSONALLY AND AS EXECUTIVE OF THE HUMAN RESOURCES ADMINISTRATION OF THE CITY OF NEW YORK; MITCHELL TARNAPOL, PERSONALLY AND AS EQUAL EMPLOYMENT OPPORTUNITY OFFICER FOR THE HUMAN RESOURCES ADMINISTRATION OF THE CITY OF NEW YORK; ALICE BARBOSA, PERSONALLY AND AS CONTRACT COMPLIANCE OFFICER OF THE HUMAN RESOURCES ADMINISTRATION OF THE CITY OF NEW YORK; RUBY RUFFIN, PERSONALLY AND AS AN EMPLOYEE OF THE HUMAN RESOURCES ADMINISTRATION OF THE CITY OF NEW YORK; HELEN FERRANTE, PERSONALLY AND AS AN EMPLOYEE OF THE HUMAN RESOURCES ADMINISTRATION OF THE CITY OF NEW YORK; JOHN GOOLSBY, AS AN EMPLOYEE OF THE HUMAN RESOURCES ADMINISTRATION OF THE CITY OF NEW YORK; DEFENDANTS, JOINTLY AND SEVERALLY.



The opinion of the court was delivered by: Glasser, District Judge:

MEMORANDUM AND ORDER

Plaintiff, a computer programmer employed by the New York City Human Resources Administration ["HRA"], brought this action pursuant to: 42 U.S.C. § 1981, 1983 and 1985; Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d-1; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5; the Rehabilitation Act of 1973, 29 U.S.C. § 794(a); the first, eighth and fourteenth amendments to the Constitution; and the New York City Charter and Collective Bargaining Law. Proceeding pro se, plaintiff seeks injunctive relief, compensatory and punitive damages. Defendants David Dinkins, Barbara Sabol, Paul Roth, Gary Wiseltier, Louis Lista, Mitchell Tarnapol, Alice Barbosa, Ruby Ruffin, Helen Ferrante, and John Goolsby [collectively, the "City defendants"], have moved the court for an order dismissing the complaint for failure to state a claim, pursuant to Rule 12(b)(6), Fed.R.Civ.P., or in the alternative, for an order granting summary judgment pursuant to Rule 56, Fed.R.Civ.P.

FACTS

In February 1981 plaintiff began working at the HRA in the Office of Data Processing ["ODP"]. Within a short period of time plaintiff became involved in numerous altercations with his co-workers, who allegedly subjected him to "horrendous treatment."*fn1 Plaintiff was transferred to another work group, but he did not get along with the head of the department. Plaintiff was transferred to a third group, but there, too, his colleagues allegedly "hazed and threatened him" verbally and physically. After the last transfer, HRA required plaintiff to see a psychiatrist, who ultimately found him to be healthy. HRA also brought several lengthy disciplinary actions against him. Plaintiff alleges that HRA took these actions to induce him to resign.

Plaintiff further asserts that HRA officials improperly denied him paid leave for religious holidays and family emergencies. In October 1990 plaintiff, who apparently had used all his personal and vacation days for the year, requested advance annual leave credit for two Jewish holidays, Shemini Atzereth and Simchath Torah. The holidays are among those on a list, HRA Informational No. 82-35, which requires HRA approval for leave for religious observance. HRA allegedly refused plaintiff's request and instead required plaintiff to take unpaid leave to observe the two holidays. Plaintiff complained about the decision, but HRA did not change its position. HRA also indicated that it had deducted 50 1/2 hours of religious leave that plaintiff had already been granted. HRA asserts that the hours had been deducted after it discovered that the time had been improperly advanced for holidays not listed on Informational No. 82-35. HRA asserts that plaintiff had compiled "an exceptionally poor time and attendance record over the years" and "carried a `negative' leave balance, i.e., had no leave accumulated and borrowed against future leave." The 50 1/2 hours were charged as leave without pay.

In approximately December 1990 plaintiff was told that his mother was terminally ill with bone cancer. He requested an unspecified period of leave to visit his mother. Plaintiff did not have any leave time accrued, and HRA officials declined to advance him future annual leave time. Plaintiff appealed to his group's director, with whom plaintiff exchanged angry words. The director refused to advance annual leave. Plaintiff then appealed to the director's supervisor, who, on December 26, 1990, also rejected plaintiff's request.

On November 1, 1990 plaintiff filed a religious discrimination claim with the EEOC. The EEOC took no action, but issued a letter granting plaintiff permission to litigate the matter. On February 25, 1991 plaintiff commenced the present case by filing an order to show cause why the City defendants should not be preliminarily enjoined to transfer him to a different department. This court denied plaintiff's application for injunctive relief. On April 11, 1991, the City defendants submitted the present motion. For the reasons stated below, the motion is granted.

DISCUSSION

In considering a motion to dismiss under Rule 12(b)(6), the court must accept plaintiff's claims as true and accord them a liberal construction. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972). The court must be mindful that complaints drafted by pro se litigants are to be construed liberally. Id. at 520, 92 S.Ct. at 595-96. It may dismiss the complaint "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); accord Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

A. Title VII

Plaintiff alleges that the City defendants' actions violated Title VII, which makes it unlawful 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). Construing plaintiff's allegations in a light most favorable to him, and construing his pro se complaint very liberally, plaintiff apparently contends that HRA violated Title VII in three ways. Plaintiff alleges that: (1) allowing him leave without pay to observe two Jewish holidays did not reasonably accommodate his religious practices; (2) HRA's decision to deduct the 50 1/2 hours of paid leave constituted retaliation; and (3) the poor treatment he received by his co-workers at HRA constituted a "hostile environment."

1. Accommodation. Under Title VII an employer is required to "accommodate" an employee's religious observance unless the accommodation would cause "undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j). The Supreme Court has held that section 2000e(j) prohibits an employer from refusing to make accommodations, which do not create undue hardship, for the religious practices of employees. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74, 97 S.Ct. 2264, 2271-72, 53 L.Ed.2d 113 (1977). An employer need not accommodate an employee at all costs, Ansonia Board of Education v. Philbrook, 479 U.S. 60, 70, 107 S.Ct. 367, 372-73, 93 L.Ed.2d 305 (1986), nor does Title VII require employers to accommodate religious observance in a way that spares employees of all costs. Pinsker v. Joint District Number 28J, 735 F.2d 388, 390-91 (10th Cir. 1984). An employer must make only those accommodations that are "reasonable." Ansonia Board of Education, 479 U.S. at 68, 107 S.Ct. at 371-72. The Supreme Court has held that allowing leave without pay for religious observance is generally a reasonable practice under Title VII. Id.; accord Pinsker, 735 F.2d at 391.

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 ...


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