The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge
Plaintiff Pedro Rivera brings a claim of religious
discrimination against defendant Choice Courier Systems, Inc.
Plaintiff brings this action pursuant to Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., New
York Executive Law Section 296, and New York City Administrative
Code, Title 8, Section 8-107.
Both plaintiff and defendant have moved for summary judgment
pursuant to Fed.R.Civ.P. 56. Both plaintiff's motion and
defendant's motion are denied.
Plaintiff was employed by defendant as a "Time service" courier
from mid-May, 2000, to June 20, 2000, when plaintiff was
dismissed. Defendant provides messenger services to business
customers located throughout the New York metropolitan area and
in surrounding states. Def.'s Rule 56.1 Statement ¶ 2. "Time
service" couriers provide mail and messenger services at
customers' business locations. Id. ¶ 3. "Time service"
personnel perform tasks such as answering the telephone and
delivering mail between floors, and they are defendant's premier
courier employees. Id. ¶ 4. Defendant also employs "street messengers,"
who pick up and deliver packages and mail on a per-order basis.
Id. ¶ 3.
Defendant requires all courier employees to comply with its
standards of conduct and personal appearance for courier
employees while at work. Id. ¶ 12. The courier regulations
state that, "[a]ll couriers are required to dress neat and in
good taste," and that "[c]ouriers are expected to conduct
themselves in a professional manner at all times." Yarmark Ex. 7.
Frank Rivera, the Manager of Courier Staffing for defendant, has
testified that the enforcement of the personal appearance
standard is "[v]ery strict." Frank Rivera Dep. at 42. Frank
Rivera has described as "crucial" to defendant's business that
its messenger employees promote a professional appearance. Id.
at 41. There is a specific dress code for time service personnel.
Yarmark Dep. at 26. As stated in the list of rules and
regulations for time service personnel, "Collared shirt and tie
are mandatory for all Time Service Personnel, unless a client
specifies differently, in which case you will be expected to
dress neat and in good taste." Yarmark Ex. 5. The dress code for
street couriers is less stringent than that for "time service"
couriers. Frank Rivera Dep. at 26. Anne L. Yarmark ("Yarmark"),
Vice President of Human Resources for defendant, has stated that
"time service personnel are held to a higher standard because
they work offsite at a client facility with little, if any
supervision by Choice," and that "it is very important they be
reflective in their dress and their demeanor of what Choice is
trying to protect itself with [sic] as far as its image and in
holding itself out to be the premier service." Yarmark Dep. at
72-73. Street couriers have "[n]o requirement like a uniform,"
but are "only asked to dress in neat and good taste." Frank
Rivera Dep. at 10. Defendant has no written policy prohibiting
employees from engaging in religious expression or practice.
Def.'s Resp. to Pl.'s Rule 56.1 Statement ¶ 16.
Plaintiff is an evangelical Christian. Def.'s
Rule 56.1 Statement ¶ 17. As part of his evangelizing, plaintiff began
attaching lettering to his jackets in 1998. Pl.'s Dep. at 67.
Plaintiff wears the message "Jesus is Lord" on a daily basis, but
he does not always wear the same "outerwear." Def.'s
Rule 56.1 Statement ¶ 39. At various times, plaintiff has worn the message
"Jesus is Lord" on an overcoat, a raincoat, a parka, a vest, and
a backpack. Id. ¶ 43.
On or about May 12, 2000, Rivera applied for employment with
defendant. Id. ¶ 45. Frank Rivera interviewed plaintiff and
hired him as a time service courier. Id. ¶ 46-47. On or about
June 16, 2000, plaintiff went to work wearing a vest with two
cloth badges sewn into it. Id. ¶ 51. The badge on the front had
letters approximately 1½ inches high and the badge on the back
had letters approximately 3 inches high. Def.'s
Rule 56.1 Statement ¶ 51. Each badge contained the words "Jesus is Lord."
On or about June 16, 2000, a supervisor in the messenger room
of DMB&B, one of defendant's clients, called Tavon Tucker
("Tucker"), who was then the Time Service Coordinator for Choice,
and told her that he had a concern about Rivera's vest. Velasquez
Aff. ¶ 2, 3. He told her that someone at the customer's location
could be offended by that clothing, and asked Tucker to examine
it and determine whether it complied with defendant's dress code
policy. Id. ¶ 3. Tucker told plaintiff that he could not wear
the jacket, and that he should take it off. Pl.'s Dep. at 92, 93
She told plaintiff that her reason was that it "might offend a
customer or one of [plaintiff's] co-workers." See Tucker Mem.
She told plaintiff that no customers had called about him, but
that she wanted to "prevent this call." Id. Plaintiff asked to speak to
Tucker's supervisor, Frank Rivera. Pl.'s Dep. at 103.
Tucker met with plaintiff again on June 20, 2000. She told
plaintiff that "because there are customers that don't appreciate
some logos or don't believe in Jesus there is a chance that it
can cause a problem." Tucker Mem. On June 20, 2000, plaintiff had
a conversation with Frank Rivera. Frank Rivera Mem. Frank Rivera
has testified that plaintiff "came to my office about 8 o'clock
in the morning, and he started saying something along the lines
that he felt the time service coordinator was being
discriminative to his beliefs. And I asked what exactly happened,
and he told me she's telling me I can't express myself what I
believe in." Frank Rivera Dep. at 14. Frank Rivera told plaintiff
that the message "seemed inappropriate attire for time service."
Frank Rivera Mem. He stated to plaintiff that "this was more of a
personal expression not one that was reflected by the company,
and by wearing it while working for Choice could be interpreted
as such by our clients." Id. Frank Rivera noted in a memorandum
that plaintiff "insisted that he would continue to wear this no
matter what." Id. Plaintiff said that he "need[ed] to have a
rock solid bottom line on this where we're going to go from here
because I'm not going to change something very important that I
practice." Pl.'s Dep. at 105. Rivera "explained to [plaintiff]
that a vest with large letters on the back, and letters on the
front, were just not part of the dress code." Frank Rivera Mem.
Frank Rivera indicated to plaintiff that he had no choice but to
"terminate [him] for not adhering to the Time Service dress
code." Id. According to Frank Rivera, "[t]he fact he was
persistent, and didn't want to compromise in any way, he left me
with no choice to terminate him." Frank Rivera Dep. at 30. Frank
Rivera has testified that he "tr[ied] to reach a point of
compromise" with plaintiff, and that he "asked him is there any
way he can express himself in a more suttle [sic] way, and he
refused. Kept insisting this is what I want to wear. This is my
belief, and you can't tell me how to express myself. That's what
I choose to wear." Id. at 22.
Plaintiff told Frank Rivera that he wanted to speak to someone
in a higher position. Id. at 31. Plaintiff subsequently met
with Melissa Clewner ("Clewner"). Pl.'s Dep. at 206-08. Clewner
was defendant's human resources manager. Def.'s Resp. to Pl.'s
Rule 56.1 Statement ¶ 27. Clewner "said something in the sense of
we can't allow that. It is against company policy. Some of our
clients may be offended . . ." Pl.'s Dep. at 207. In a memorandum
concerning the conversation, Clewner wrote that she told
plaintiff that it was "company policy that all time service
personnel wear a collared shirt and tie to all assignments," and
that plaintiff "could not wear his `summer vest' with the patches
on it." Clewner Mem. When plaintiff asked whether he could wear
the "Jesus plaque" without the vest, Clewner responded that he
could not, and "told him that the company prefers that employees
keep such religious statements private, and not displayed
outwardly," and "explained that as respectful as we are of his
personal beliefs, we needed to be equally respectful of our other
employees beliefs [sic], our clients, and company policy."
Clewner Mem.; Def.'s Resp. to Pl.'s Rule 56.1 Statement ¶ 29.
Plaintiff told her that "I couldn't remove [the message] or stop
doing or practicing this evangelizing, and that was pretty much
it." Pl.'s Dep. at 209. Clewner wrote that plaintiff told her
"that he did not agree with what was being told to him," and that
she told him that "if he refused to follow the dress policy, then
he would have to seek employment elsewhere." Clewner Mem.
B. Procedural History On or about June 22, 2000, plaintiff filed a charge of
discrimination with the Equal Employment Opportunity Commission
("EEOC"). Def.'s Rule 56.1 Statement ¶ 60. On or about October
19, 2000, EEOC Enforcement Supervisor Electra Yourke ("Yourke")
wrote to plaintiff to notify him that the EEOC had "concluded its
inquiry' and that the EEOC's "review fails to indicate that a
violation has occurred." Wynne Aff. Ex. C. Yourke concluded,
among other things, that "[i]n view of the fact that wearing the
patch on all occasions is not an essential practice in the
exercise of [plaintiff's] religious belief, [defendant] is not
obligated to accommodate [plaintiff's] wish to do so at
[plaintiff's] discretion." Id. Yourke also advised plaintiff of
his right to file a lawsuit within 90 days of receipt of the
Notice of Right to Sue. Id. On or about November 27, 2000,
plaintiff wrote to EEOC District Director Spencer H. Lewis
("Lewis") to request a reinvestigation. Wynne Aff. Ex. D. In a
letter dated December 1, 2000, Lewis informed plaintiff that a
review of the investigative file did not "indicate a basis to
reconsider the final dismissal issued for [plaintiff's] charge."
Plaintiff commenced this action on March 13, 2001. He moved for
summary judgment, as did defendant, on March 29, 2002. Oral
argument on ...