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KHAN v. FEDERAL RESERVE BANK OF NEW YORK

United States District Court, S.D. New York


February 2, 2005.

ZARIN KHAN, Plaintiff,
v.
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.

Background

  The plaintiff*fn1 was born in India (Deposition of Zarin Khan Page 2 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 1-2).

  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 Page 3 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 Page 4 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 89-90).

  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 Page 5 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. 11).

  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. 13).

  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 Page 6 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. Page 7 (Def. Exh. 17). On November 26, 2002, Ms. Khan filed this lawsuit, alleging violation of her rights under federal, state, and local laws.

  Discussion

  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.") Page 8 at 11-22).

  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 Page 9 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 Page 10 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 Page 11 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 Page 12 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, Page 13 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 Page 14 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 Page 15 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 the first Page 16 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); Page 17 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 the Bank.

  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 Page 18 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 employee's work Page 19 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. Page 20 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 environment. Page 21

  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 Cir. 1999).

  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 Page 22 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 Page 23 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 Page 24 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" provision).

  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. Page 25 (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 Page 26 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 retaliatory discrimination").

  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 Page 27 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 States Page 28 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 Page 29 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] Page 30 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 Page 31 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 illness).

  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 claim. Page 32

  Conclusion

  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.

  SO ORDERED.


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