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RIVERA v. CHOICE COURIER SYSTEMS

June 24, 2004.

PEDRO ANTONIO RIVERA, Plaintiff,
v.
CHOICE COURIER SYSTEMS, INC., Defendant.



The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge

OPINION

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.

  I. BACKGROUND

  A. Facts

  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." Id.

  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." Id.

  Plaintiff commenced this action on March 13, 2001. He moved for summary judgment, as did defendant, on March 29, 2002. Oral argument on ...


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