United States District Court, S.D. New York
February 2, 2005.
ZARIN KHAN, Plaintiff,
FEDERAL RESERVE BANK OF NEW YORK, Defendant.
The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Zarin Khan, a programmer analyst, has sued the Federal Reserve Bank of
New York (the "Bank") for violation of her rights under Title VII of the
Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; the
Family and Medical Leave Act (the "FMLA"), 29 U.S.C. § 2601 et seq.;
42 U.S.C. §§ 1981 and 1983; the New York State Human Rights Law (the
"NYSHRL"), N.Y. Exec. Law § 290 et seq.; and the New York City Human
Rights Law (the "Administrative Code"), N.Y.C. Admin. Code §§ 8-107(1),
8-107(2), and 8-107(3). She also claims to have been subjected to the
intentional infliction of emotional distress. The parties consented to
referral of the case to me to decide dispositive motions and conduct
trial pursuant to 28 U.S.C. § 636(c). Each has now moved for summary
judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For
the reasons discussed below, the defendant's motion is granted.
The plaintiff*fn1 was born in India (Deposition of Zarin Khan
dated June 9, 2003 ("Khan Dep."), at 8), and she is a Muslim. (Affidavit
of Zarin Khan, dated May 22, 2004 ("Khan Aff."), ¶ 3). The defendant is
one of the twelve Federal Reserve Banks. (Defendant's Local Civil Rule
56.1 Statement of Material Facts on Motion for Summary Judgment ("Def.
56.1 Statement"), ¶ 2). Its jurisdiction covers the Second Federal
Reserve District, an area that consists of the State of New York, part of
southwestern Connecticut, and twelve northern New Jersey counties. (Def.
56.1 Statement, ¶ 2). Ms. Khan began working at the Bank as a Programmer
Analyst in the Electronic Payments Systems Department on January 12,
1998. (Affidavit of Margaret Mullins dated March 31, 2004 ("Mullins
Aff."), Exh. 6 of Defendant's Exhibits ("Def. Exh."), ¶ 5).
In June 1998, the plaintiff enrolled in a flexible work arrangement
offered by her employer. (Def. Exh. 3). Pursuant to the plan, Ms. Khan
could work for nine days over a two week period, with extended hours each
day, instead of working ten days with regular hours. (Def. Exh. 3 at
Sometime around 1998-1999, one of plaintiff's supervisors, John Lines,
was talking with two other employees about the testing of nuclear bombs
in Pakistan and India. (Khan Dep. at 18, 27-28). When the plaintiff
joined the conversation, Mr. Lines allegedly told her, "If you don't like
it, you can leave the country." (Khan
Dep. at 26-28).*fn2
On April 1, 1999, the plaintiff received her first job evaluation from
Mary Mulvey, another supervisor. (Khan Dep. at 20-21; Def. Exh. 5). Ms.
Khan did not receive any grade of "below standard." (Def. Exh. 5).
On December 9, 1999, the plaintiff asked Mr. Lines, who was Ms.
Mulvey's superior, to change her schedule for Ramadan so that she could
observe the Muslim holy month. (Khan Dep. at 18, 42-43; Khan Aff., ¶
7). Ramadan had started that day. (Ramadan Schedule for 1999-2000,
attached as Exh. A to Khan Aff.). Ms. Khan proposed to work from 8:00
a.m. to 4:00 p.m. without a lunch break, instead of from 9:00 a.m. to 5:45
p.m. with a lunch period of one hour. (Khan Aff., ¶ 6-7). Ms. Khan
explained to Mr. Lines that, as she would be fasting during each day of
Ramadan, she wished to end work earlier because an observant Muslim is
required to cease fasting as soon as the sun sets. (Khan Aff., ¶¶ 7-8).
Mr. Lines told the plaintiff that he would inform Ms. Mulvey about her
request. (Khan Dep. at 43). However, Ms. Mulvey told the plaintiff that
to allow her to work through the day without taking a lunch break would
disrupt the work of her co-employees, and Paulette Lundy, another bank
employee, told her that official bank policy barred employees from
working through lunch. (Khan Dep. at 62). The plaintiff then proposed to
work from 7:00 a.m. to 3:45 p.m., taking a lunch break of one hour. Ms.
Mulvey accepted this arrangement, but the
plaintiff immediately withdrew her proposal when she realized that it was
not workable for her. (Khan. Dep. at 56-57, 62; Khan Aff., ¶ 16).*fn3
Ms. Khan met several times with Ms. Mulvey and Mr. Lines "to come up with
the best way possible" for the plaintiff to change her schedule. (Khan
Dep. at 46).
On December 14, 1999, the plaintiff did not go to work due to illness
and she did not return until January 10, 2000. (Khan Aff., ¶ 22; Def.
Exh. 6). During this period, she was treated by a physician and a
psychiatrist for anxiety and depression. (Khan Aff., ¶ 22; Pl. Memo. at
12). When Ms. Khan did return to the bank on January 10, she believed
that she was physically attacked by someone there. (Khan Aff., ¶ 24).
However, she is not certain if she was really attacked, or if she
imagined it because of her state of anxiety and stress. (Khan Aff., ¶
24). She suffered an anxiety attack and left work that day and did not
return to work until March 23, 2000. (Khan Aff., ¶¶ 24-25; Khan Dep. at
On March 27, 2000, Ms. Khan had a meeting with Ms. Mulvey and Chuck
Badagliacca from the Electronic Payments Group. (Khan Dep. at 15-16,
108). During the meeting, the plaintiff expressed her reluctance to work
with Miriam Rubin because Ms. Rubin had allegedly posted a cartoon in her
cubicle depicting Muslims in a derogatory light. (Khan Dep. at 77-78,
109-10). Ms. Mulvey and
Mr. Badagliacca told the plaintiff that she had to "work with Miriam."
(Khan Dep. at 110). Later that day, the plaintiff wrote an e-mail to
Marge Mullins, an employee in the Department of Human Resources,
complaining that she could not work "with persons who are totally
anti-Muslim, extremely violent, and abusive and physically threatening."
(Khan Dep. at 112; Def. Exh. 11). She asked Human Resources to
"investigate the hostility by Mary [Mulvey] and Miriam [Rubin] against
all Muslims and [myself] in particular." (Khan Dep. at 111-12; Def. Exh.
On March 28, 2000, the plaintiff was given two written warnings at a
meeting with Om Bagaria, the Senior Vice President of the Electronics
Payments Department, and Ms. Mulvey. (Khan Dep. at 33, 74, 118). One
warning was for "unscheduled absences" (Khan Dep. at 120; Def. Exh. 12)
and the other for "unprofessional behavior and insubordination" because
she "refus[ed] to work with another individual on the staff." (Def. Exh.
After receiving these warnings, the plaintiff felt that she was
excluded from some projects and assigned fewer new ones. (Khan Dep. at
135-36; Khan. Aff., ¶ 31). On May 29, 2000, the plaintiff filed a charge
of discrimination with the Equal Employment Opportunity Commission (the
"EEOC"). (Khan Dep. at 168).
On September 28, 2000, the plaintiff was reclassified from a Programmer
Analyst to a Systems Programmer "B" as a result of the Bank's Progression
Program Guidelines. (Mullins Aff., ¶ 5). She kept the same salary and
benefits. (Mullins Aff., ¶ 5).
In March 2001, the plaintiff received a performance evaluation
in which she was rated below standard. (Khan Dep. at 144; Def. Exh. 14;
Khan. Aff., ¶ 33). She believed that the review constituted unfair
treatment and retaliation by her employer. (Khan Dep. at 144-46; Khan.
Aff., ¶ 33). Around the same time, she was told she was no longer
eligible to work a flexible schedule because of her "excessive absences."
(Khan Dep. at 137, 140; Khan Aff., ¶ 31).
On November 8, 2001, the plaintiff again was reclassified, this time
from Systems Programmer "B" to Business Support Analyst (Mullins Aff.,
¶ 5), and was transferred to another group. (Khan Dep. at 146). Again,
she kept the same salary and benefits. (Khan Dep. at 147-48).
Ms. Khan did not go to work on November 19, 2001, but she was present
on November 20 and 21, immediately before Thanksgiving. After the
holiday, she did not return to work because her child was ill. (Mullins
Aff., ¶ 6; Khan Dep. at 156). In December, she requested to be allowed
to work from home, but that request was denied. (Khan Dep. at 157-58).
On December 4, 2001, the plaintiff was informed by phone that if she
did not show up for work on December 6, she would be terminated. (Khan
Dep. at 159-60). Ms. Khan did not go to work on December 6, and she was
terminated from employment on December 7, 2001. (Mullins Aff., ¶ 5).
On September 30, 2002, the EEOC issued a right-to-sue letter,
indicating that it was unable to conclude that the information obtained
in its investigation established any violation of law.
(Def. Exh. 17). On November 26, 2002, Ms. Khan filed this lawsuit,
alleging violation of her rights under federal, state, and local laws.
The defendant moves for summary judgment on the grounds that: (1) the
plaintiff has not established a prima facie case of discrimination based
on religion or national origin; (2) the plaintiff has not made out a
prima facie case of retaliation; (3) the plaintiff's claims under
42 U.S.C. § 1981 & § 1983 fail as a matter of law; (4) the Bank did not
violate the FMLA; (5) the plaintiff's claims under New York state and
local laws fail for lack of jurisdiction; and (6) the plaintiff has not
made out a claim of intentional infliction of emotional distress.
(Memorandum of Law in Support of Defendant's Motion for Summary Judgment
("Def. Memo.") at 11-25).
The plaintiff asserts four arguments in her cross-motion for summary
judgment. She contends that: (1) she has satisfied her burden of proving
a prima facie case of religious discrimination, while the defendant has
failed to show that it provided her with a reasonable accommodation for
her religious observance; (2) she was subjected to a hostile work
environment on the basis of her religion and national origin; (3) she was
demoted in retaliation for engaging in protected activity; and (4) the
defendant is subject to New York State and City laws. (Plaintiff's
Memorandum of Law in Support of her Cross-Motion for Summary Judgment and
in Opposition to Defendant's Motion for Summary Judgment ("Pl. Memo.")
A. Summary Judgment Principles
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary
judgment is appropriate where "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c); accord Marvel Characters, Inc. v. Simon, 310 F.3d 280,
285-86 (2d Cir. 2002); Andy Warhol Foundation for the Visual Arts, Inc.
v. Federal Insurance Co., 189 F.3d 208, 214 (2d Cir. 1999). The moving
party bears the initial burden of demonstrating "the absence of a genuine
issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Where the moving party meets that burden, the opposing party must
come forward with "specific facts showing that there is a genuine issue
for trial," Fed.R.Civ.P. 56(e), by "a showing sufficient to establish the
existence of [every] element essential to that party's case, and on which
that party will bear the burden of proof at trial." Celotex,
477 U.S. at 322.
In assessing the record to determine whether there is a genuine issue
of material fact, the court must resolve all ambiguities and draw all
factual inferences in favor of the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986); Vann v. City of New York,
72 F.3d 1040, 1048-49 (2d Cir. 1995). But the court must inquire whether
"there is sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party," Anderson, 477 U.S. at 249 (citation
omitted), and grant summary judgment where the nonmovant's evidence is
conclusory, speculative, or not significantly probative. Id. at 249-50.
"The litigant opposing summary judgment may not rest upon mere conclusory
allegations or denials, but must bring forward some affirmative
indication that his version of relevant events is not fanciful." Podell
v. Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir. 1997) (internal
quotations and citations omitted); see also Matsushita Electric
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (a
nonmoving party "must do more than simply show that there is some
metaphysical doubt as to the material facts"); Goenaga v. March of Dimes
Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995) (nonmovant "may
not rely simply on conclusory statements or on contentions that the
affidavits supporting the motion are not credible"). In sum, if the court
determines that "the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party, there is no `genuine
issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First National
Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289 (1968)).
Courts are particularly cautious about granting summary judgment to an
employer in a discrimination case when the employer's intent is in
question. See Gallo v. Prudential Residential Services, Ltd.
Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994); Meiri v. Dacon,
759 F.2d 989, 998 (2d Cir. 1985). Because direct evidence of an
employer's discriminatory intent will rarely
be found, "affidavits and depositions must be carefully scrutinized for
circumstantial proof which, if believed, would show discrimination."
Gallo, 22 F.3d at 1224. However, even in the discrimination context, a
plaintiff must provide more than conclusory allegations of discrimination
to defeat a motion for summary judgment. See Meiri, 759 F.2d at 998.
B. Title VII Religious Accommodation
Title VII provides that "[i]t shall be an unlawful employment practice
for an employer . . . 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. . . ." 42 U.S.C. § 2000e-2(a)(1). It further defines
religion as including "all aspects of religious observance and practice,
as well as belief." 42 U.S.C. § 2000e(j). Claims of religious
discrimination under Title VII can be framed under at least three
theories. First, a plaintiff may advance a claim based on disparate
treatment, that is, she may assert that her employer treated her less
favorably than other similarly situated employees because of her
religious beliefs or practices. See Peterson v. Hewlett-Packard Co.,
358 F.3d 599, 603 (9th Cir. 2004); Mandell v. County of Suffolk,
316 F.3d 368, 379 (2d Cir. 2003). Second, a plaintiff may claim that she
has been subjected to a hostile work environment by, for example, being
exposed to pervasive religious slurs or insults. See Feingold v. State of
New York, 366 F.3d 138, 149-50 (2d Cir. 2004). Third, a
plaintiff can argue that an employment requirement, although evenhandedly
implemented by the employer, conflicts with her religious practices.
Enforcement of such a requirement against the plaintiff constitutes a
violation of Title VII unless the employer demonstrates that it is unable
to accommodate the employee's religious practices without undue
hardship. See 42 U.S.C. § 2000e(j); Cosme v. Henderson, 287 F.3d 152,
157-58 (2d Cir. 2002).
In this case, Ms. Kahn argues, in part, that the Bank failed to
accommodate her religious beliefs. To make out a prima facie case of
religious discrimination under this theory, she must, according to the
formulation developed by the Second Circuit, prove that: (1) she held a
bona fide religious belief that conflicts with an employment
requirement; (2) she informed the employer of this belief; and (3) she
was "disciplined for failure to comply with the conflicting employment
requirement." Knight v. Connecticut Department of Public Health,
275 F.3d 156, 167 (2d Cir. 2001) (citing Philbrook v. Ansonia Board of
Education, 757 F.2d 476, 481 (2d Cir. 1985), aff'd and remanded on other
grounds, 479 U.S. 60 (1986)). If the employee establishes a prima facie
case, the burden then shifts to the employer to show that it could not
reasonably accommodate the employee's religious practices and beliefs
without incurring undue hardship. Knight, 275 F.3d at 167.
The Bank contends that Ms. Khan cannot establish a prima facie case,
primarily because she cannot satisfy the third element.*fn4
This element in effect encompasses two distinct principles: the plaintiff
must be the subject of discipline, and the discipline must be the
consequence of the plaintiff's exercise of her religious beliefs.
Although in the specific contexts of the Knight and Philbrook cases the
Second Circuit referred to "discipline," the standard necessarily reaches
a broader range of action by the employer. To be sure, a plaintiff must
show that she has suffered a cognizable injury. See Storey v. Burns
International Security Services, 390 F.3d 760, 764 (3d Cir. 2004). But
that injury may occur whenever,
in the language of Title VII, the employer's action affects the
employee's "compensation, terms, conditions, or privileges of
employment." 42 U.S.C. § 2000e-2(a)(1). It is not limited to what is
conventionally understood to be "discipline." Thus, courts generally
characterize the requirement as one of demonstrating that the plaintiff
has suffered an "adverse employment action." See, e.g., Peterson,
358 F.3d at 606; Reyes v. New York State Office of Children and Family
Services, No. 00 Civ. 7693, 2003 WL 21709407, at *7 (S.D.N.Y. July 22,
2003), aff'd, 109 Fed. Appx. 466 (2d Cir. 2004); Durant v. NYNEX,
101 F. Supp. 2d 227, 233 (S.D.N.Y. 2000). Accordingly, actions not
normally considered "discipline," such as a failure to hire, may give
rise to liability when an employment requirement conflicts with an
applicant's religious practices. See, e.g., Gordon v. MCI
Telecommunications Corp., 791 F. Supp. 431, 434-35 (S.D.N.Y. 1992).
Furthermore, an employee faced with an employer's refusal to
accommodate is not required to violate employment rules and suffer the
consequences before she is able to bring suit. See Rodriguez v. City of
Chicago, No. 95 C 5371, 1996 WL 22964, at *3 (N.D. Ill. Jan. 12, 1996)
("It is nonsensical to suggest that an employee who, when forced by his
employer to choose between his job and his faith, elects to avoid
potential financial and/or professional damage by acceding to his
employer's religiously objectionable demands has not been the victim of
religious discrimination[.]"). Rather, the threat of an adverse action is
sufficient to meet this element of the prima facie case, provided that
the plaintiff can
prove that the employer is in fact intransigent and that the threatened
action is causally related to the conflict between the employer's policy
and the plaintiff's religion. See Opuku-Boateng v. State of California,
95 F.3d 1461, 1467 n. 9 (9th Cir. 1996) (employer "threatened"
discriminatory treatment); Reznick v. Aramark Corp., No. 97-CV-18977,
1999 WL 287724, at *10 (E.D.N.Y. May 5, 1999) (employee must show that
she "faced discipline"); Rodriguez, 1996 WL 22964, at *3 ("threat" of
discharge sufficient); but see Chaplin v. DuPont Advance Fiber Systems,
293 F. Supp. 2d 622, 627 (E.D. Va. 2003) (insufficient for plaintiffs
to speculate that they "could" be reprimanded or discharged).
Even under this broader articulation of the standard, however, Ms. Khan
has not presented evidence from which the finder-of-fact could conclude
that she had met the third prong of the prima facie case. First, she
argues that the Bank's failure to accommodate her caused her to suffer
mental and emotional illness, which in turn resulted in her being absent
from work and forfeiting compensation as well as losing less tangible
benefits such as prospects for advancement. (Pl. Memo. at 12-13). But
Ms. Khan has produced no evidence apart from her own speculation that
would support a causal connection between the employer's policies and her
illness. Even if she had, the fact that there was ultimately some loss of
employment benefits to the plaintiff does not in itself mean that she
suffered an adverse employment action. Where the action of the employer
could not reasonably be expected to result in the employee's loss of
benefits, no Title VII liability attaches. That
is the case here: an employer could not reasonably be expected to
anticipate that the failure to accommodate religious needs would so
affect an employee's mental health that she would lose time from work.
Next, Ms. Khan argues that she was, in fact, disciplined in the more
conventional sense. (Pl. Memo. at 14-16). First, on March 28, 2000, she
received two written warnings that informed her that she was "not
eligible for salary increases [and] promotions" during a probationary
period of three months for the first warning and an indefinite period for
the second warning.*fn5 (Def. Exhs. 12, 13). Second, when the plaintiff
was transferred to a new position in 2001, her responsibilities
encompassed doing "inventory of computers" and "backups" (Khan Dep. at
146-47), but no longer entailed programming. (Khan Dep. at 148). Thus,
taking the plaintiff's representations as true, a juror could conclude
that Ms. Khan had materially diminished responsibilities and that,
therefore, she was subject to adverse action.
However, the plaintiff does not provide any evidence to support her
claim that she was penalized because of her request for accommodation or
because she did not work during Ramadan. The Bank, on the other hand, has
submitted both direct and circumstantial evidence that the plaintiff was
not disciplined because of her religious beliefs. The plaintiff received
written warning because of "unscheduled absences" taken from November
30, 1999 to December 12, 1999 and from March 10, 2000 to March 22, 2000.
(Def. Exh. 12). Clearly, the unscheduled leaves for which Ms. Khan was
disciplined were not taken during Ramadan. In addition, the record shows
that the plaintiff received a second warning because she did not "accept
[some] assignments from her management," she "refuse[d] to work with
another individual on the staff," and she "use[d] threatening language."
(Def. Exh. 13). Therefore, she was disciplined for her "inappropriate
behavior and insubordination" (Def. Exh. 13), and the two warnings were
unrelated to her request for an accommodation during Ramadan. Moreover,
with regard to the plaintiff's alleged demotion, the record shows that it
occurred more than a year after her request for a religious
accommodation. (Mullins Aff., ¶ 5; Khan Dep. at 146). Thus, a reasonable
jury could not conclude that the plaintiff was disciplined because she
requested an accommodation for Ramadan more than a year earlier.
As discussed above, an instance of actual discipline is not necessary
to establish an adverse employment action: the threat of a sanction is
enough. However, Ms. Khan has not argued that she was constructively
discharged, that is, that she ceased reporting for work because of an
irreconcilable conflict between her religion and the requirements of the
job. See Equal Employment Opportunity Commission v. Delta Airlines,
Inc., No. 97 CV 5646, 2002 WL 1447582, at *4-5 (E.D.N.Y. June 26, 2002)
(plaintiff claims failure to accommodate "forced" her to resign; claim
rejected on facts);
Johnson v. KMart Corp., 942 F. Supp. 1070, 1072-73 (W.D. Va.
1996) (same). Moreover, now that she is no longer employed by the
Bank, there is no present threat of an adverse employment action.
In short, because Ms. Khan has not presented evidence that she has
suffered or will suffer negative employment consequences because of her
religion, she cannot satisfy the third element of the prima facie case,
and her claim of religious discrimination based on a failure to
accommodate must be rejected. Accordingly, there is no need to address
whether any proposed accommodation would have imposed an undue burden on
C. Title VII Hostile Environment
The plaintiff also argues that there is a triable issue of fact as to
whether she was subjected to a hostile work environment on the basis of
her religion and national origin. (Pl. Memo. at 16-17). The defendant
contends that the alleged incidents of discrimination do not rise to the
level of a hostile environment and that there is no proof that they were
motivated by discriminatory animus. (Def. Memo. at 13-17; Defendant's
Reply Memorandum in Further Support of Defendant's Motion for Summary
Judgment ("Def. Reply") at 6-8).
In order to survive summary judgment on a claim of a hostile work
environment, a plaintiff must produce evidence that "the workplace is
permeated with `discriminatory intimidation, ridicule, and insult,' that
is `sufficiently severe or pervasive to alter the conditions of the
victim's employment.'" Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993) (quoting Meritor Savings
Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986)). Isolated instances of
harassment ordinarily do not rise to this level. See, e.g., Kotcher v.
Rosa and Sullivan Appliance Center, Inc., 957 F.2d 59, 62 (2d Cir.
1992). "Casual comments, or accidental, or sporadic conversation" are not
sufficient to establish a hostile atmosphere. Snell v. Suffolk County,
782 F.2d 1094, 1103 (2d Cir. 1986) (citation omitted). "[P]laintiffs must
prove more than a few isolated incidents of racial enmity". Id. "`Mere
utterance of an . . . epithet which engenders offensive feelings in an
employee' does not sufficiently affect the conditions of employment to
implicate Title VII. Conduct that is not severe or pervasive enough to
create an objectively hostile or abusive work environment an
environment that a reasonable person would find hostile or abusive is
beyond Title VII's purview." Harris, 510 U.S. at 21 (quoting Meritor
Savings Bank, 477 U.S. at 67). Rather, the plaintiff must demonstrate
either that a single incident was extraordinarily severe, or that a
series of incidents were "sufficiently continuous and concerted" to have
altered the conditions of her working environment. Perry v. Ethan Allen,
Inc., 115 F.3d 143, 149 (2d Cir. 1997) (quoting Carrero v. New York City
Housing Authority, 890 F.2d 569, 577 (2d Cir. 1989)). In evaluating
whether a hostile work environment exists, courts must look at "all the
circumstances," including "the frequency of the discriminatory conduct;
its severity; whether it was physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interferes with an
performance." Harris, 510 U.S. at 23.
In this case, the record does not contain sufficient evidence of
harassment based on national origin or religion to create a triable
question with respect to Ms. Khan's hostile work environment claim.
1. Purported Anti-Muslim and Anti-Indian Conduct
The plaintiff alleges that Ms. Rubin's "racist cartoon," Mr. Lines'
comments, and the failure to accommodate her scheduling request for
Ramadan are clear evidence of a work environment hostile to her religion
and national origin. (Pl. Memo. at 17-21).
The plaintiff remembers only vaguely the context in which Mr. Lines
stated that "if [the plaintiff] do[es] not like it, [she] can leave the
country." (Khan Dep. at 26-28). She believes that the statement was made
in reference to testing of nuclear bombs in Pakistan and India but cannot
remember exactly what prompted it. (Khan Dep. at 26-28, 30). Indeed, Ms.
Khan could not tell from his tone of voice whether Mr. Lines was serious
or joking. (Khan Dep. at 32). Thus, the meaning of Mr. Lines' comment is
unclear, and this is not a case where a supervisor used an unambiguous
racial slur to refer to the plaintiff. See Richardson v. New York State
Department of Correctional Service, 180 F.3d 426, 439 (2d Cir. 1999)
("Perhaps no single act can more quickly `alter the conditions of
employment and create an abusive working environment' than the use of an
unambiguously racial epithet such as `nigger' by a supervisor in the
presence of his subordinates.") (quoting Rodgers v. Western-Southern Life
Insurance Co., 12 F.3d 668, 675 (7th Cir.
1993)). Accordingly, Mr. Lines' comment was not severe enough to create
an objectively hostile or abusive work environment. See Harris,
510 U.S. at 20-21.
Next, the plaintiff alleges that the cartoon hung in Ms. Rubin's
cubicle depicted Muslims in a derogatory light. (Pl. Memo. at 17-18; Khan
Dep. at 77-78). However, Ms. Khan does not remember anything specifically
offensive about the cartoon, except that it made "fun of [Muslims']
clothing" and beards. (Khan Dep. at 80-81). Even taking the plaintiff's
assertions as true, this is certainly not severe enough to withstand
summary judgment. See id. at 21.
The plaintiff testified that apart from Mr. Lines' comments and the
cartoon, there were no other comments she perceived to be anti-Muslim or
anti-Indian. (Khan Dep. at 125). Indeed, the plaintiff recalled no other
occasion on which Mr. Lines brought up her national origin. (Khan Dep. at
32). Thus, the incidents offered by the plaintiff as proof are not enough
to demonstrate an objectively hostile work environment, either separately
or in combination. See id.
Finally, Ms. Mulvey and Mr. Lines met several times with the plaintiff
to find a compromise with respect to Ms. Khan's request for a schedule
modification for Ramadan. (Khan Dep. at 45-46). Therefore, even though no
accommodation was ultimately agreed upon, the conduct of these
supervisors was hardly severe enough to create a hostile or abusive
2. Workplace Friction
The plaintiff also asserts that other incidents contributed to a
hostile work environment. (Pl. Memo. at 16-17). Specifically, she alleges
that she was subjected to a hostile environment (1) by being "yelled at"
and "by being given the silent treatment," (2) "by being given undeserved
written warnings for excessive absences . . . and for insubordination,"
(3) by being criticized for leaving her desk to go to the lavatory, (4)
by being required to e-mail notice of her arrival, (5) by no longer being
permitted to work from home or on a flexible schedule, (6) by being kept
out of meetings, and (7) by being transferred to a "secretarial type
position." (Pl. Memo. at 16-17).
First, Ms. Khan has failed to provide any evidence in support of some
of these claims. Her allegations of being shouted at, being criticized
for leaving her desk, and being excluded from meetings are entirely
conclusory, and thus are not sufficient to defeat a motion for summary
judgment. See Bickerstaff v. Vassar College, 196 F.3d 435, 451-452 (2d
Second, to sustain a Title VII hostile environment claim, "[the
plaintiff] . . . must produce evidence that she was discriminated against
because of her race [or religion, or national origin]. Richardson,
180 F.3d at 440 (citation omitted) (emphasis added). Here, there is no
evidence that any of the events described above was motivated by
discriminatory animus. To the contrary, there is evidence that the
written warnings the plaintiff received were issued for legitimate
reasons. As previously
discussed, the written warnings indicate that the plaintiff was being
disciplined because of unscheduled absences and insubordination. (Def.
Exhs. 12 & 13). The plaintiff has not submitted any evidence that could
lead a jury to conclude that these reasons are pretextual. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 804 (1973).
Moreover, the defendant argues that the reason why Ms. Mulvey asked the
plaintiff to acknowledge her arrival by e-mail if she were to work from 7:45
a.m. to 3:45 p.m. is because the Bank had to know when employees began
work when their schedules fall outside of normal working hours. (Def.
Memo. at 14). The plaintiff has presented no evidence that this reason is
pretextual. In addition, Ms. Khan was told by Mr. Badagliacca that the
discontinuation of her flex-time was due to excessive absences. (Khan.
Dep. at 137-40). The plaintiff has produced no evidence to contradict
that rationale. And, although the plaintiff complains that she was not
permitted to work from home, she also testified that she had worked from
home only sporadically in the past. (Khan Dep. at 81). Finally, assuming
that the plaintiff's transfer to a secretarial position was a demotion,
there is no evidence that it was motivated by discriminatory animus.
In addition, Ms. Khan asserts that her "employer treated [her]
differently . . . than it did other employees with respect to time and
attendance issues." (Pl. Memo. at 5). However, she has not
shown that any of the other employees she identifies*fn6 were similarly
situated. See Schumway v. United Parcel Services Inc., 118 F.3d 60, 64
(2d Cir. 1997) (inference of discrimination possible only if plaintiff
shows that she was "similarly situated in all material respects" to the
individuals with whom she seeks to compare herself). Therefore, the
plaintiff has not provided any circumstantial evidence that would permit a
jury to draw an inference of discrimination.
Since there is no evidence that the employer tolerated a work
environment hostile to the plaintiff's national origin or religion, the
defendant's motion for summary judgment is granted on this issue and the
plaintiff's motion is denied.
D. Title VII Retaliation
Title VII prohibits employers from discharging workers in retaliation
for their opposing discriminatory employment practices. Section 704(a)
provides in relevant part that:
It shall be an unlawful employment practice for an
employer to discriminate against any of his employees
or applicants for employment . . . because he has
opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a
charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing
under this subchapter.
42 U.S.C. 2000e-3(a).
To establish a prima facie case of retaliation, a plaintiff must show
that: (1) she was engaged in an activity protected under
the discrimination laws; (2) the employer was aware of this fact and
subjected her to an adverse employment action; and (3) there is a causal
connection between the protected activity and the adverse employment
action. See Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir.
1996); Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991). The term
"protected activity" refers to actions taken to protest or oppose
statutorily prohibited discrimination. 42 U.S.C. § 2000e-3; see also
Wimmer v. Suffolk County Police Department, 176 F.3d 125, 134-35 (2d
Cir. 1999) (discussing scope of statute's "protected activity"
Ms. Khan contends that she was retaliated against when she was demoted
to a "clerk/secretarial type of position" in 2001.*fn7 (Pl. Memo. at
21). She also asserts that she was mistreated by her employer, given an
unfair evaluation, and threatened with termination in retaliation for her
complaining about religious discrimination. (Compl. ¶ 64). Her claim is
somewhat cryptic since she does not identify which specific complaints
she is referring to. She may be alluding to the fact that on March 27,
2000, she complained to Ms. Mullins about colleagues who were
"Anti-Muslims" (Def. Exh. 11), to her complaint to the internal EEO
office on April 17, 2000 (Khan Dep. at 126-28), or to her charge of
discrimination filed with the EEOC on or about June 1, 2000.
(Compl. ¶ 11). All of these complaints about discrimination could be
considered protected activities within the meaning of Title VII. The law
is clear that opposition to a Title VII violation need not rise to the
level of a formal complaint in order to receive statutory protection. The
notion of "opposition" includes activities such as "making complaints to
management, writing critical letters to customers, protesting against
discrimination by industry or by society in general, and expressing
support of co-workers who have filed formal charges." Sumner v. United
States Postal Service, 899 F.2d 203, 209 (2d Cir. 1990).
Nevertheless, the plaintiff has not made out a prima facie case of
retaliation because she has failed to demonstrate a causal connection
between the protected activities in which she engaged and the employer's
adverse actions. A plaintiff may establish a causal connection through
either direct or indirect evidence. An inference of retaliation could be
established with circumstantial evidence, for example, by showing that
the protected activity was closely followed by discriminatory treatment
or by showing that employees who engaged in similar conduct were treated
differently. See DeCintio v. Westchester County Medical Center,
821 F.2d 111, 115 (2d Cir. 1987); Grant v. Bethlehem Steel Corp.,
622 F.2d 43, 46 (2d Cir. 1980).
Here, each of the defendant's alleged adverse employment actions took
place more than nine months after the plaintiff
engaged in "protected activity."*fn8 Such a long delay between the
protected conduct and the adverse action negates any inference of a causal
connection. See Zenni v. Hard Rock Cafe International, Inc.,
903 F. Supp. 644, 656 (S.D.N.Y. 1995) (plaintiff failed to establish
prima facie case of discrimination when "full year passed between the
filing of the charge and [the] allegation of retaliatory conduct"); Fitch
v. R.J. Reynolds Tobacco Co., 675 F. Supp. 133, 138 (S.D.N.Y. 1987)
(that plaintiff received lowest performance evaluation seven months after
he filed EEOC charge "is insufficient to make out a prima facie case of
In addition, there is no evidence in the record showing that other
employees who engaged in conduct similar to the plaintiff's were treated
differently. Thus, no connection has been established between the
protected activity and the alleged adverse employment actions, and the
defendant's motion for summary judgment on this claim must be granted.
E. Section 1981
Next, the plaintiff alleges that the conduct of her employer created a
discriminatory work environment in violation of 42 U.S.C § 1981. (Compl.
¶ 60). That statute provides that "all persons within the jurisdiction of
the United States" shall enjoy the same
rights and benefits of law as are "enjoyed by white citizens."
42 U.S.C. 1981(a). To sustain a claim under § 1981, a plaintiff must show
(1) that she was subjected to intentional discrimination*fn9 and (2)
that this discrimination interfered with a contractual relationship.
Krulik v. Board of Education of the City of New York, 781 F.2d 15, 23
(1986) (citation omitted). Because, as discussed above, the record is
barren of any evidence of intentional discrimination on the basis of the
plaintiff's national origin or religion, the defendant's motion for
summary judgment with regard to plaintiff's § 1981 claim is granted.*fn10
F. Section 1983
The plaintiff contends that the defendant deprived her of "equal
protection of the laws" and "due process" under the Fourteen Amendment by
discriminating against her based on her religion, national origin, and
race, and that, as a result of this constitutional violation, she is
entitled to the remedies available under 42 U.S.C. § 1983. (Compl. ¶¶
87-90). Section 1983 provides that:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects,
or causes to be subjected, any citizen of the United
or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for
redress. . . .
Accordingly, to state a claim for relief under § 1983, a plaintiff must
allege that (1) some person has deprived her of a federal right; and (2)
that person acted "under color of state . . . law." Scott v. Federal
Reserve Bank of New York, 704 F. Supp. 441, 446 (S.D.N.Y. 1989)
(quoting Gomez v. Toledo, 446 U.S. 635, 640 (1980)).
The Federal Reserve Bank of New York is an instrumentality of the
United States because it derives its powers from and is chartered
pursuant to the Federal Reserve Act. Scott, 704 F. Supp. at 446-47.
Thus, the Bank "derives its authority to act from federal law, not state
law." Id. at 447. Accordingly, the defendant's motion for summary
judgment with regard to the plaintiff's § 1983 claim is granted.
G. State and City Laws
The plaintiff also contends that the defendant discriminated against
her in violation of the NYSHRL and the Administrative Code. (Comp. at 1,
8-12). The defendant argues that New York State and New York City cannot
"regulate a federal instrumentality, such as the New York Fed . . .
because there has been no clear and unambiguous authorization by Congress
for state or local regulation of the employment practices of Federal
Reserve Banks." (Def. Memo. at 24-25).
Currently, there is a split in authority concerning whether
state and local laws are preempted by the Federal Reserve Act and other
banking provisions containing similar language. Compare Ana Leon T. v.
Federal Reserve Bank of Chicago, 823 F.2d 928, 931 (6th Cir. 1987)
(rights under Michigan law preempted by federal law), and Osei-Bonsu v.
Federal Home Loan Bank of New York, 726 F. Supp. 95, 98 (S.D.N.Y.
1989) (state human rights agency's jurisdiction over claim of racial
discrimination against bank preempted by Federal Home Loan Bank Act),
with Katsiavelos v. Federal Reserve Bank of Chicago, No. 93 C 7724, 1995
WL 103308, at *4 (N.D. Ill. March 3, 1995) (bank subject to provisions of
Illinois Human Rights Act), and Moodie v. Federal Reserve Bank,
835 F. Supp. 751, 752-53 (S.D.N.Y. 1993) (New York State Human Rights
Law not preempted by Federal Reserve Act).
That issue need not be decided here because the "consideration of
claims brought under the state and city human rights laws parallels the
analysis used in Title VII claims." Cruz v. Coach Stores, Inc.,
202 F.3d 560, 565 n. 1 (2d Cir. 2000) (citations omitted). Since the
plaintiff has failed to make out a prima facie case under Title VII, the
defendant's motion for summary judgment on the corresponding State and
City Human Rights Law claims must be granted.
H. Infliction of Emotional Distress
The plaintiff also alleges that the defendant, by permitting her to be
exposed to harassment and other offensive conduct, caused her to suffer
severe emotional distress. (Comp. at 12-13).
"Liability [for intentional infliction of emotional distress]
has been found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious, and utterly intolerable in a
civilized society." Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999)
(quoting Murphy v. American Home Products Corp., 58 N.Y.2d 293, 303,
461 N.Y.S.2d 232, 236 (1983)). The facts alleged by the plaintiff
concerning the defendant's adverse employment actions fall far short of
this standard since they fail even to constitute a hostile work
environment. Therefore, the defendant's motion for summary judgment on
the claim of intentional infliction of emotional distress is granted.
I. Family and Medical Leave Act
Finally, the plaintiff alleges that she had a serious health condition
that kept her out of work for less than a twelve week period and that the
warnings she received because of her absences were therefore in violation
of the FMLA, 29 U.S.C. § 2615(a)(2). (Compl. at 13-14).
The FMLA provides in pertinent part that "an eligible employee shall be
entitled to a total of 12 workweeks of leave during any 12-month period
. . . [b]ecause of a serious health condition that makes the employee
unable to perform the functions of the position of such employee."
29 U.S.C. § 2612(a)(1)(D). Pursuant to 29 U.S.C. § 2615(a)(1), an
employer cannot "interfere with, restrain, or deny the exercise of or the
attempt to exercise, any right provided under this subchapter."
Therefore, an employer is prohibited from discriminating or taking an
adverse action against
an employee because the employee has taken FMLA leave.
29 C.F.R. § 825.220(c); accord Hodgens v. General Dynamics Corp.,
144 F.3d 151, 159-60 (1st Cir. 1998). However, an employee must expressly
request FMLA leave. FMLA defines "eligible employee" as "an employee who
has been employed (i) for at least 12 months by the employer with respect
to whom leave is requested under section 2612 of this title. . . ."
29 U.S.C. § 2611(2)(A)(i) (emphasis added); see also Sampson v.
Citibank, 53 F. Supp. 2d 13, 19 (D.C. Cir. 1999) (plaintiff's FMLA
claim failed because employee never expressly requested FMLA leave and
FMLA not automatically triggered when an employee takes days off for
Here, the record shows that the plaintiff received warnings because of
absences not covered by the FMLA. According to the written warnings
received by the plaintiff, she was penalized for unscheduled absences
between November 30, 1999 and December 2, 1999, and between March 10,
2000 and March 22, 2000, which were not "related to the FMLA." (Time &
Labor Activity Entitlement Summary, attached to Mullins Aff.). The
defendant's time and labor records likewise show that these absences were
not part of the plaintiff's FMLA leave. (Time & Labor
Activity/Entitlement Summary, attached to Mullins Aff.). The plaintiff
has not brought forth any evidence to show that the absences for which
she was issued a warning were indeed FMLA leave. Therefore, the
defendant's summary judgment motion must be granted with regard to this
For the reasons discussed above, the defendant's motion for summary
judgment is granted and the plaintiff's cross-motion for summary judgment
is denied. The Clerk of the Court shall enter judgment in favor of the
defendant dismissing the complaint.