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) ...