Durant had a verbal altercation with Casale. Casale approached
Durant in a hallway near her office and asked her if she wished
to work an overtime shift on Saturday. She ignored Casale and
walked away from him. Casale again approached Durant and asked
for an answer. Durant jumped up, telling Casale to "get out of my
face," and then called the police. According to plaintiff, Casale
uttered unspecified racial slurs in the presence of the police.
See Durant Aff. ¶¶ B.8-B.10. In her complaint, Durant had
claimed that Casale told her that she used words which could only
be understood in her "hood." In her deposition, Durant instead
stated that Casale asked her whether the term "in your face" was
from her "neighborhood." See Durant Dep., at 368. Durant had
also called an ambulance, but when it never came the police took
her to Coney Island Hospital. See id., at 374. The police
apparently told her that Casale did not make any threats, though
she claimed to feel intimidated. See Durant Aff. ¶ B.9.
Durant charges that the incident reflects ongoing harassment by
NYNEX because Casale knew that she was a Sabbath observer and
offered her the overtime shift solely to antagonize her. She also
charges that Casale would sometimes ask her repeatedly whether
she wanted to work Saturday overtime, and then tell her he was
"only kidding." See Miklave Aff. Ex L, at ¶ 12. NYNEX states
that Casale was simply following his obligation under the CBA to
offer overtime in rotating shifts to all eligible employees, a
suggestion that Durant dismisses stating that she had previously
offered to sign a statement preventing him from offering her
overtime on the Sabbath. See Durant Aff. ¶ B.8. NYNEX denies
that Durant made any such offer to waive her rights under the
CBA. See Reply Memo., at 5-6.
After the altercation with Casale, Durant left work on
disability leave to receive psychological care she states she
required as a result of the altercation with Casale. See Durant
Aff. ¶ B.11. She also requested a transfer to the Manhattan
office. See, e.g., Miklave Aff. Ex. X.
F. Durant's Final Leave of Absence
Durant returned to work in November 1997, and NYNEX honored her
request to be transferred to its Manhattan office. See Durant
Aff. ¶ 12.
Durant believes that the harassment continued. The basis for
her belief is apparently that she was not given "her computer
codes" and two managers asked her to work Saturday overtime. See
id. She was also assigned to work on rotating Saturdays, but
told that she did not have to work those shifts and would not
receive a salary for them. See id.
In April 1998, she suffered an unrelated back injury caused by
a defective chair. See id., at ¶ B.15. She continued working
until August 30, 1999, when the pain became too severe to sit for
a nine-hour shift. See id. Plaintiff remains on leave of
She filed the complaint in this action on April 16, 1998. In
the complaint, she asserts that she has suffered from insomnia,
loss of appetite and emotional distress as a result of her
A. Summary Judgment Standard.
Summary judgment may be granted "only when the moving party
demonstrates that `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.'" Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir.
1995) (quoting Fed.R.Civ.P. 56(c)); accord Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). The Court must "view the evidence in the light most
favorable to the non-moving party and draw all reasonable
inferences in its favor, and may grant summary judgment only when
`no reasonable trier of fact could find in favor of the nonmoving
party.'" Allen, 64 F.3d at 79 (citation omitted) (quoting
Lund's, Inc. v.
Chemical Bank, 870 F.2d 840, 844 (2d Cir. 1989)).
Since Durant is proceeding pro se, this Court will hold her
pleadings to "less stringent standards than formal pleadings
drafted by lawyers. . . ." Haines v. Kerner, 404 U.S. 519, 521,
92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam). Her supporting
papers have been read liberally and interpreted "to raise the
strongest arguments that they suggest." Burgos v. Hopkins,
14 F.3d 787, 790 (2d Cir. 1994).
B. Title VII Claim.
1. Discrimination Claim.
Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-2(a)(1) provides that:
"(a) It shall be an unlawful employment practice for
an employer . . . (1) 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 race, color,
religion, sex, or national origin."
Accordingly, "an employer cannot discriminate against any
employee on the basis of the employee's religious beliefs unless
the employer shows that he cannot `reasonably accommodate' the
employee's religious needs without `undue hardship on the conduct
of the employer's business.'" Philbrook v. Ansonia Bd. of