United States District Court, N.D. New York
June 28, 2005.
YANIV NEIL SIDES, Plaintiff,
NYS DIVISION OF STATE POLICE, Defendant.
The opinion of the court was delivered by: HOWARD MUNSON, Senior District Judge
Plaintiff initiated this lawsuit pursuant to Title VII,
42 U.S.C. § 2000e-et seq., 42 U.S.C. § 1981, and New York Executive
Law § 296. Plaintiff later withdrew claims under the New York
Executive Law. Plaintiff seeks declaratory, injunctive and
equitable relief, liquidated and compensatory damages, costs and
As a preliminary matter, the Court must dismiss Plaintiff's
action based on 42 U.S.C. § 1981. By alleging discrimination
based on religion and not on race, he has failed to state a cause
of action under § 1981. St. Francis College v. Al-Khazraji,
481 U.S. 604, 107 S.Ct. 2022 (1987); Catholic War Veterans, Inc. v. New York,
576 F.Supp. 71, 74 (S.D.N.Y. 1983) (religious discrimination not covered by §
1981); Khawaja v. Wyatt, 494 F.Supp. 302, 304 (W.D.N.Y. 1980).
See also Vuksta v. Bethlehem Steel Corp., 707 F.2d 1405 (D Cir.
1982); cert. denied, 464 U.S. 835, 104 S. Ct. 121, 78 Ed.2d 195
Title VII covers discrimination based on sex, color, national
origin, and religion. A Title VII plaintiff is only entitled to
compensatory and punitive damages calibrated by employer size.
Title VII also limits back pay awards to two years,
42 U.S.C.S. 2000e-5(g)(1).
The complaint alleges that the Division of New York State
Police ("NYSP") was compelled to change its applicant processing
and scheduling of Troopers to accommodate his religious beliefs
which would not permit his working on the Jewish Sabbath.
Defendant replies that plaintiff is unable to serve as a Trooper
because his religious doctrines do not permit him to work on
certain dates, and any accommodation would have forced NYSP to
breach the terms of existing collective bargaining agreements and
seniority based systems, and would have meant incurring more than
de minimis cost.
The application process to become a New York State Police
Trooper ("NYSP" or "Trooper") consists of a written test and a
physical stage or "processing." In February 2001, plaintiff
submitted an application for employment as a Trooper. Plaintiff
passed the written test and in a letter dated July 13, 2001, was
advised that his position on the Trooper eligible candidate had
been reached and in order to continue the process, it was
necessary for him to report for further processing on August 11
and 12, 2001. The section segment consisted of a two day
examination conducted at the NYSP Academy. In response to the
NYSP's invitation, plaintiff wrote an undated letter stating that
he would not report for processing on August 11, 2001, "[d]ue to the fact that I am a Sabbath observer, I cannot
take any test on Saturday," (emphasis in original), and asked
for another weekday date to complete his processing. (Campbell
Decl. Ex. F). On August 27, 2001, Lt. Pamela answered plaintiff's
letter denying his request, explaining that:
As you know, Troopers are required to work weekends,
holidays, irregular hours and overtime. In short,
Troopers are required to be available for duty
anytime. It appears from your letter, that even if
you successfully completed the testing process and
were appointed to the State Police, you could not
work on the Sabbath. Because an accommodation to
prevent this occurrence is neither practical or
available, rescheduling the test would serve no
(Id. Ex. G).
Plaintiff replied to this letter on September 14, 2001,
articulating that he was unable to work on, "the Sabbath and
Jewish holidays (Holidays) which would not fall on regular
American holidays." (Id. Ex .H). Plaintiff was telephoned that
he could do the processing on September 29, 2001. (Id. ¶ 49).
Plaintiff then telephoned Laurel LeClair of the NYSP and clearly
informed her that he would not take part in processing on
Saturday because of his Sabbath observance. (Sides Dep. p. 99).
On October 5, 2001, Glenn Valle, Counsel for the NYSP, advised
plaintiff in a letter that his rescheduling request had been
denied due to the fact that:
Each and every member of the New York State Police
must be available to work, unconditionally, 24 hours
a day, 365 days a year. This requirement includes the
necessity to be available for work on Saturdays, and
The Jewish High Holidays, as well as other secular
and non-secular holidays. In light of your state
inability to participate in the physical ability
test, due to your religious observances, we assume
that you are unavailable to work as a New York State
Trooper on Saturdays and for religious holidays. For
this reason, there is no practical purpose to
reschedule this test at this time.
(Campbell Decl. Ex. 1).
For an Orthodox Jew who strictly practices his faith, the
Sabbath starts at sundown Friday night and ends when there are three stars in the sky on
Saturday night, a period of approximately 25 hours. (Sides Dep.
pp. 69, 76). During this length of time, plaintiff is unable to
take part in any activity considered "work" under Jewish law.
(Id. at pp. 68-69, 76-78). He also cannot engage in such
activities as answering the telephone, pushing an elevator
button, driving a car, or utilizing a police radio. (Id.).
There are also a number of holidays throughout the year where the
same work and other restrictions are applicable. (Id. pp.
78-87). In addition to the approximately 25 hour non-work period
of the Sabbath, plaintiff would need additional time to leave
work early enough to be at home one hour before sunset, and,
after leaving the synagogue after sundown on Saturday and could
not report to work until after returning to his home. (Id. p
89, 93). The only exception to plaintiff's work restriction would
involve a "catastrophic" occurrence such as September 11, 2001.
(Id. 95-98). During his deposition testimony plaintiff was
unable to specify any other catastrophic happening in the history
of New York City, where he resides, or New York State which would
be of sufficient crisis to permit his working on the Sabbath.
(Id. pp. 95-99, 110-111).
Currently before the court are cross motions for summary
judgment pursuant to Federal Rule of Civil Procedure 56(a) and
(b). The parties have entered opposition to the respective
To obtain a summary judgment there must be "no genuine issue as
to any material fact" and "the moving party [must be] entitled to
a judgment as a matter of law." Federal Rule of Civil Procedure
56(c). Genuine issues of fact are not created by conclusory
allegations. Summary judgment is proper when, after drawing all
reasonable inferences in favor of a non-movant, no reasonable trier of fact could find in favor of that party.
Matsushita Electric Industries Co. v. Zenith Radio Corp.,
475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986).
There must be more than a "scintilla of evidence" in the
non-movant's favor; there must be evidence upon which a
fact-finder could reasonably find for the non-movant. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512,
91 L. Ed.2d 202 (1986).
In this case, motions for summary judgment were filed by both
parties. When both sides move for summary judgment, neither side
is barred from asserting that there are issues of fact,
sufficient to prevent the entry of judgment, as a matter of law,
against it. Schwabenbauer v. Board of Education of Olean,
667 F.2d 305 (2d Cir. 1981). When faced with cross-motions for
summary judgment, a district court is not required to grant
judgment as a matter of law for one side or the other. Id. at
313. "Rather, the court must evaluate each party's motion on its
own merits, taking care in each instance to draw all reasonable
inferences against the party whose motion is under
consideration." Id. at 314.
The New York State Police have statewide jurisdiction and is
frequently the only law enforcement entity in many New York
communities. They are responsible for maintaining the safety and
security of the State's people, and crucial to this duty is the
ability to properly staff each shift. They must be able to
strategically spread their resources fully as needed to achieve
its mission, and it is critical that the State Police function at
acceptable force levels. If the State Police were to function
understaffed, it would certainly impact public safety, as
resources would be overstretched, and there would be less back up
available to assist on-duty personnel to make certain that there
are enough Troopers covering every shift, the 1191 203
Collective Bargaining Agreement and the Award and Clarification
("the CBA/A&C") provides that every Trooper is placed on a mandatory recall list. When a Troop experiences the
unscheduled absence of a Trooper scheduled to work, and there are
no available volunteers to take on his or her duties, off duty
Troopers from the mandatory recall list are required to report in
inverse order of seniority.
Plaintiff claims that Defendant's refusal to hire him as a
State Trooper constitutes religious discrimination under Title
VII. This statute makes it unlawful for an employer to fail or
refuse to hire an individual on the basis of that individual's
religious observances, practices or beliefs unless the employer
demonstrates that it is unable to "reasonably accommodate" the
prospective employee's religious observance or practice without
"undue hardship on the conduct of the employer's business."
42 U.S.C. §§ 2000e(j), 2000e-2(a)(1). The plaintiff bringing a
religious discrimination claim under Title VII bears the initial
burden of establishing a prima facie case by proving that: (1)
he/she has a sincere religious belief that conflicted with an
employment requirement; (2) he/she informed his/her prospective
employer of his/her religious views or practices; and (3) he/she
was not hired because of his/her inability to comply with the
conflicting employment requirement.
In employment discrimination cases, brought under Title VII, §
42 U.S.C., the "plaintiff has the burden of proving by the
preponderance of the evidence a prima facie case of
discrimination." Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L. Ed.2d 207
(1981) (Title VII claim).
Once the employee has established a prima facie case, the
burden shifts to the employer to prove either that it made good
faith efforts to accommodate the employee's religious practices
and beliefs or that it could not reasonably do so without
incurring "undue hardship." Philbrook v. Ansonia Board of Education, 757 F.2d 476, 481 (2d Cir.
1985), aff'd and remanded, 479 U.S. 60, 107 S.Ct. 367,
93 L.Ed.2d 305 (1986) Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481,
1486 (10th Cir. 1989), cert. denied sub nom., Nobel-Sysco
Foods Services Co. v. Toledo, 495 U.S. 948, 110 S.Ct. 2208,
109 L. Ed.2d 535 (1990); E.E.O.C. v. Hacienda Hotel, 881 F.2d 1504,
1512 (9th Cir. 1989).
Since the Defendant herein has acknowledged that Plaintiff has
met the requirements needed to establish a prima facie case, the
burden now shifts to the defendant to present evidence that
reasonable accommodation would entail "undue hardship."
Ansonia, 479 U.S. at 63.
Recognizing that the phrases "reasonable accommodation" and
"undue hardship" are not defined under the statutes, "[e]ach case
necessarily depends upon its own facts and circumstances, and in
a sense every case boils down to a determination as to whether
the employer has acted reasonably." United States v. City of
Albuquerque, 545 F.2d 110, 114 (10th Cir. 1976), cert. denied,
433 U.S. 909, 97 S.Ct. 2974, 53 L Ed.2d 1092 (1977). Once an
employer demonstrates that it reasonably accommodated an
employee's religious needs, the statutory inquiry ends.
Ansonia, 479 U.S. at 68, 107 S.Ct. at 371-72. "[T]he extent of
undue hardship on the employer's business is at issue only where
the employer claims that it is unable to offer any reasonable
accommodation without such hardship." Id. at 68-69,
107 S.Ct. at 372. The Supreme Court has described "undue hardship" as any
act requiring an employer to bear more than a "de minimis cost"
in accommodating an employee's religious beliefs. Trans World
Airlines, Inc. v. Hardison, 432 U.S. 63, 84 n. 15,
97 S.Ct. 2264, 2277 n. 15, 53 L. Ed.2d 113 (1977). The Court has also
recognized that the phrase "de minimis cost" entails not only
monetary concerns, but also the burdens employers bear in
conducting burden their businesses, such as scheduling difficulties, loss of efficiency, disruption
of other employees work routines, and general employment
discontent. Id.; Brener v. Diagnostic Center Hospital,
671 F.2d 141, 146 (5th Cir. 1982); Weber v. Roadway Express,
199 F.3d 270, 274-75 (5th Cir. 2000).
The Supreme Court has held that accommodation that results in
an imposition on other workers or causes the employer to bear
more than de minimis costs constitutes undue hardship. Trans
World Airlines, Inc. v. Hardison, 432 U.S. 63, 84-85, S.Ct.
(1977); Gordon, 791 F. Supp. at 436 (employer need not
accommodate by "denying the needs, rights or preferences of other
The requirement that discriminatory employment practices be
justified with a showing of business necessity reflects the law's
general approach to employment equality. An employment practice,
whether a test or not, which adversely affects minority groups
must be eliminated if it is not necessary to the conduct of the
business. Griggs v. Duke Power Co., supra; Robinson v.
Lorillard, supra; United States v. St. Louis-San Francisco Ry.
Co., 464 F.2d 301 (8th Cir. 1972). But while courts have come to
depend on science in determining test validity, no such
assistance is available in passing on the necessity of other
employment practices. When the "business" is protecting the lives
and property of a dependent citizenry, a Court should be
especially leery of reconstructing employment practices which are
ostensibly designed to increase the professional competence of
the Department. Vulcan Society v. Civil Service Commission, 5
FEP cases 699 (S.D.N.Y. 1973). In the instant case, Plaintiff was
notified that a Trooper must be unconditionally available for
work 24 hours a day 365 days a year, and that this requirement
included being prepared to work on Saturday Sabbaths, the Jewish
High Holidays and other secular and non-secular holidays. When
Plaintiff advised Defendant that he would be unable to make this
commitment, he was notified that the employment process would be
discontinued because even if he received an employment
appointment to the State Police, he could not meet the position's
work accessibility requirements.
It is apparent from Plaintiff's statements that, even if he
became a Trooper, his work schedule would not permit him to
observe the Sabbath and certain Jewish Holidays. While he might
be able to observe these religious occurrences by instituting a
series of shift-swaps with fellow Troopers for the dates on which
they fell, he would not be able to do so during his first year as
a Trooper. New York State Executive Law § 215(3) provides that
Troopers appointments shall be made for a period of one year.
The salaries, wages, work schedules, hours of work and other
terms of employment of Troopers are set forth in both the
CBA/A&C, entered between the New York State and the Police
Benevolent Association of the New York State Troopers, Inc. Each
of these documents prohibits probationary Troopers from
voluntarily swapping shifts during their one year probationary
time period. Shift-swapping is a right of seniority, and
Defendant is "not required by Title VII to carve out a special
exception to its seniority system in order to help [Plaintiff}
meet his religious obligations." Trans World Airlines v.
Hardison, 432 U.S. 63, 83, 97 S. Ct. 2264. It is well
established that the neutral operation of a bona fide seniority
system, even if it has "some discriminatory consequences," does
not violate the proscription against religious discrimination in
employment. Id. 432 U.S. at 82; 97 S. Ct. 2264, see also
42 U.S.C. § 2000e-2(h), § 703(h) ("[I]t shall not be an unlawful
employment practice . . . to apply different standards of
compensation, or different terms, conditions, or privileges of
employment pursuant to a bona fide seniority or merit system."). Id. There has been
no showing that the Defendant's seniority system is not bona
fide, or that it was created to discriminate against religious
If Plaintiff were permitted to shift-swap during his
probationary period, or exempt him from possible deployment
during his Sabbath and certain Jewish Holidays it would violate
the terms of seniority based system in the CBA/A&C. Furthermore,
courts have routinely held that the adverse effects that
accommodations for religious practices might have on other
employees can constitute undue hardship on the employer. Brener
v. Diagnostic Center Hospital, 671 F.2d 141, 147 (5th Cir. 1982)
("Brener's characterization of complaints by others as mere
grumbling underestimates the actual imposition on other employees
in depriving them of their shift preference at least partly
because they do not adhere to the same religion as Brener.");
Cook v. Chrysler Corp., 779 F.Supp. 1016, 1023 (E.D.Mo. 1991)
("Granting Cook a preference in the seniority structure . . .
would create very hard feelings among Cook's fellow
employees. . . . . The Court can only imagine the degree of
animosity and hostility such a move would create."), aff'd,
981 F.2d 336 (8th Cir. 1992). Indeed, some courts have equated a more
than de minimis impact on co-workers with a more than de minimis
cost to the employer. Bhatia v. Chevron U.S.A., Inc.,
734 F.2d 1382, 1384 (9th Cir. 1984) ("An employer may prove that an
employee's proposal would involve undue hardship by showing that
either its impact on co-workers or its cost would be more than de
minimis."). If plaintiff was granted work day exemptions for the
Sabbath and certain Jewish Holidays, and his name came up on the
mandatory recall list for emergency duty, his place would have to
be taken by a more experienced Trooper. This would mean that a
more experienced Trooper would be required to work in Plaintiff's
place while Plaintiff was exempted from this contractual responsibility. This event could
be a possible source of co-worker animosity, as well as a
violation of the CBA/A&C seniority system. "[j]uggling
assignments to make each compatible with the varying religious
beliefs of a heterogeneous police force would be daunting to
managers and difficult for other officers who would be called on
to fill in for the objectors." Enders v. Indiana State Police,
349 F.3d 922, 925 (7th Cir. 2003).
Moreover, even when the employee's proposed accommodation is
relatively innocuous, such as a shift change to permit the
employee to observe a Sabbath, Title VII is not especially
hospitable. Where, as here, the proposed accommodation could
conceivably threaten to compromise public safety, the employer's
burden of establishing an undue burden is light indeed. "[s]afety
considerations are highly relevant in determining whether a
proposed accommodation would produce an undue hardship on the
employer's business." Draper v. U.S. Pipe & Foundry Co.,
527 F.2d 515, 521 (6th Cir. 1975).
The Court finds that under the circumstances of this case, the
Defendant has satisfied its burden by establishing that any
reasonable accommodation permitting plaintiff's religious
observances would create undue hardship on the operations of the
New York State Police.
Accordingly, Plaintiff's claims under New York Executive Law §
296 are DISMISSED; Plaintiff's cross motion for summary
judgment is DENIED; Defendant's motion for summary judgment is
GRANTED, and the complaint is DISMISSED.
IT IS SO ORDERED.
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