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 ...