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June 28, 2005.


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 attorney's fees.

  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 (1983).

  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 purpose.
(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 motions.


  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) ...

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