The opinion of the court was delivered by: Stein, District Judge.
Pro se plaintiff Marquita Durant is a Seventh Day Adventist who
charges that her employer, NYNEX, discriminated against her by
refusing to accommodate her religious observances and retaliated
against her on the basis of her religion. Durant alleges that
this violated 42 U.S.C. § 1981, Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq., New York State Executive
Law §§ 290 et seq. and the New York City Administrative Code §§
8-101 et seq.
Defendants have moved for summary judgment on all claims. As
set forth below, defendants' motion is granted on the grounds
that (1) Durant has not stated a claim of religious
discrimination or retaliation pursuant to Title VII because NYNEX
took no adverse employment action against her, (2) NYNEX
reasonably accommodated her religious beliefs, (3) Durant was not
subject to a hostile work environment on account of her religion,
(4) Durant's claim for racial discrimination pursuant to Title
VII is procedurally barred, (5) Durant has not stated a claim for
discrimination in violation of 42 U.S.C. § 1981, and (6) her New
York state law claims are dismissed on similar grounds.
Durant, as a member of the Seventh Day Adventist Church,
observes the Sabbath as a day of rest, beginning at sunset on
Friday and continuing until sunset Saturday. See Miklave Aff.
Exs. H & I.
NYNEX*fn1 hired Marquita Durant on July 7, 1987 to work as a
Directory Assistance Operator. She continued in that job until
June 1996, when NYNEX promoted her to the position of Customer
Service Administrator ("CSA"). See Miklave Aff. Ex. K. She is
currently on a leave of absence for unrelated medical reasons.
B. Scheduling Problems Begin.
Prior to Durant's promotion to Customer Service Administrator,
NYNEX was able to arrange her schedule so that her shifts would
not conflict with her observance of the Sabbath. Customer Service
Administrators, however, are regularly assigned to tours that
cover various periods from Monday through Saturday, including
nights and Saturdays.
As part of her new responsibilities, in June of 1996 Durant
began a five week training course which met Monday through Friday
from 4pm until midnight. For the term of the training course,
NYNEX permitted Durant to leave early on Friday. The training
course did not require Saturday shifts. See Def. Statement ¶ 8.
During July and August, Durant worked a "probation" schedule
which only required weekday shifts.
In order to try to avoid any future scheduling conflict,
plaintiff notified her union representatives, NYNEX's EEO
representative, and her new supervisor, Louis DeMartino, that her
religious beliefs prevented her from working on Friday night or
Saturday. DeMartino explained that the department operates
rotating tours, including Friday nights and Saturdays, and that
he could not make an exception for her because then everyone else
would want special days off. See Durant Aff. Ex. F. (EEOC Aff.
Dated March 26, 1997). DeMartino told her that she should accept
a demotion and return to her old job if she could not work on
Saturdays. See Miklave Aff. Ex. K. Durant claims that her union
representatives and the company's EEO representative never
investigated her right to a reasonable accommodation despite her
inquiries. See id.
In the beginning of September 1996, Durant was inserted into
the regular CSA schedule. See Durant Aff. ¶ B.1. The CSAs'
collective bargaining agreement ("CBA") committed NYNEX to assign
CSA night shifts on a rotating basis to all CSAs with fewer than
25 years of experience. See Miklave Aff. Ex D. Saturday daytime
shifts are assigned as night shifts according to longstanding
union and NYNEX policy. See Fitch Aff. ¶ 22.
NYNEX's manager in charge of scheduling, Michael Casale,
excused Durant's first regular-shift absence in September 1996.
See Miklave Aff. Ex. K. Two weeks later, plaintiff was again
scheduled for a Saturday shift. She reminded Casale about the
conflict with her religious beliefs and he "shrugged his
shoulders," allegedly saying "do what you have to do and we'll do
what we have to do." Durant arrived at work four hours tardy, was
marked late and docked pay for the time period she did not work.
See Miklave Aff. Ex. K. At approximately this time, Casale
allegedly asked Durant if she was Jewish in a tone which Durant
found "condescending." See Durant Aff. ¶ B.10.
NYNEX continued scheduling Durant to work on Saturdays every
other week. See Miklave Aff. Ex. K. Durant both swapped her
assignments with other employees and used her vacation days to
avoid absences. See Miklave Aff. Ex. K. Eventually, she decided
it was unfair for her to use her vacation time to avoid being
marked late or absent. See Durant Dep., at 210. On four
occasions, plaintiff failed to take vacation time or find
replacements for her Saturday shifts, and therefore accumulated
four Sabbath-related latenesses. See Miklave Aff., Ex. U.
NYNEX issued "disciplinary warnings" pursuant to the attendance
policies it administers — the Absence Control Plan ("ACP") and
the Tardiness Control Plan ("TCP"). See Fitch Aff. ¶¶ 3-17;
Miklave Aff. Ex M & N. Both plans impose a six-step progressive
corrective scheme ending in termination of employment. An
unapproved absence will result in progression of one step
pursuant to the ACP. The employee will "retrogress" back one step
after three months, unless the employee has another unexcused
absence in which case he or she will progress to the next step.
An employee who reaches Step VI will be terminated. The TCP
operates in a similar manner based upon the length and frequency
These latenesses, in conjunction with other latenesses
unrelated to her Sabbath observances, resulted in Durant's
progression in March of 1997 to step V under the TCP. DeMartino
then warned Durant that one more lateness would cause NYNEX to
sever her from the payroll. See Durant Aff. Ex. F (E.E.O.C.
Complaint dated March 26, 97).
In addition, on various occasions, NYNEX offered Durant
overtime shifts on Saturday as required by its CBA. She declined
to accept those shifts, and NYNEX "charged" her for them and put
her on the bottom of the "order of call" list as required by its
CBA. Durant believes that the repeated offers of Saturday
overtime constituted "continued harassment" and "belittled" her
beliefs. See Durant Aff. ¶ B.8.
C. The Alleged Plan to Have Durant "Retreat" to Her Former
Durant charges the administration of the lateness policy was
part of a plan by DeMartino to force her to "retreat" to her
former position of Directory Assistance Operator. Durant cites a
note by DeMartino stating that "by 11/1 we must make a decision
to retreat her." See Durant Aff. Ex. K. According to Durant's
theory, DeMartino kept diligent notes on her absences and
latenesses and the manager assigned to mark employees late
watched Durant "like a hawk," marking her for latenesses of only
two minutes. See Durant Aff. ¶¶ 3-4. Although Durant claims
that the tardiness of other employees was never recorded, she has
never produced the notes she allegedly took regarding these
latenesses and does not dispute the accuracy of NYNEX documents
showing that other employees were in fact marked for latenesses
as short as two minutes. See Miklave Aff. Exs. A & K.