The opinion of the court was delivered by: Barbara S. Jones United States District Judge
Plaintiff Warren Bowles ("Bowles"), who at all times relevant was an employee of Defendant New York City Transit Authority ("Transit," "NYCTA"), originally brought these two suits as separate actions. In the first-captioned matter (the "Accommodation Action"), Bowles alleges that Transit's delay in granting his request for a religious accommodation to his work schedule violated his "free exercise rights under the First Amendment pursuant to 42 U.S.C. § 1983;" Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. ("Title VII"); and the New York State Human Rights Law ("NYSHRL"), McKinney's Exec. Law § 296(10)(a).*fn1 First Amended Complaint in the Accommodation Action (the "Accommodation Complaint"), at 13.
In the second-captioned matter (the "Retaliation Action") Bowles alleges that he was subjected to various adverse employment actions including dismissal in retaliation for his having filed the Accommodation Action, in violation of his free speech rights under the First Amendment;*fn2 Title VII; the NYSHRL, McKinney's Exec. Law § 290 et seq.; and the New York City Civil Rights Law, Administrative Code of the City of New York, § 8-101 et seq. ("NYCCRL").
Before the Court are the cross-motions of Transit and of Bowles for summary judgment in both actions. Also before the Court is Bowles's motion to consolidate the two actions. Because these actions clearly involve common questions of law and fact, Bowles's motion to consolidate them is GRANTED, pursuant to this Court's authority under Rule 42(a) of the Federal Rules of Civil Procedure. For the reasons set forth below, Bowles's motions for summary judgment are DENIED and Transit's motions for summary judgment are GRANTED, in their entirety.
This Court has jurisdiction over claims under Title VII pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over the state and city law claims under 28 U.S.C. § 1367(a).
Plaintiff Warren Bowles is one of several ordained ministers of the Fellowship Tabernacle Ministries, Church of God in Christ (the "Church"), located in the Bronx, New York, where he has been an active member since about 1994. In addition to serving as one of the Church's ministers, Bowles is also a Superintendent of the Church's Sabbath School. The Church holds Sunday services at noon and 3:30 p.m., and a Sabbath School class at 10:45 a.m.
There is evidence in the record that the Church teaches that its members are to observe the Sabbath by refraining from work on Sundays. There is a conflict in the record, however, as to the precise parameters of this teaching. At his deposition, Bowles testified that he understood that he was forbidden to work at any time during the 24 hours from midnight Saturday until midnight Sunday. See Transcript of Bowles's Deposition ("Bowles Dep."), attached as Exhibit J to Defendant's Statement of Material Facts Pursuant to Local Rule 56.1 ("Def. 56.1 Statement"), at 409 l. 22-24, 418 l. 14-17. However, two letters written by Bowles's Pastor, described more fully below, seem to indicate that the prohibition is against work only "from sun-up till sun-down" on Sundays.
In 1999, Bowles was hired as a Subway Cleaner in Transit's Division of Stations. In April of that year he reported for two weeks of classroom training, after which he received a work assignment as a "Night Extra." In that capacity he worked from 10:00 p.m. to 6:00 a.m., with Saturdays and Sundays as his regular nights off.
In or around June 1999, Bowles was instructed to report to the Division of Stations to participate in the job assignment "Pick System." This is a system whereby employees are allowed to choose particular work "tours" -- including work location, hours, and regular days off -- within their job classifications. The Division of Stations holds Picks every six months. Thus, the tour an employee selects at a Pick is the one he will have for the following six months.
An employee is required to select a tour at each Pick. Under the system, each employee chooses from available tours when his turn comes up. The most senior employees pick first, and accordingly they have the widest range of choices available to them.
At the June 1999 Pick Bowles, as a very recent hire, was rather far down in the pick order. By the time his turn came, there were no tours left that did not require some Sunday work hours. He selected a tour that required him to work from 11:00 p.m. until 7:00 a.m., Friday through Tuesday, with Wednesdays and Thursdays as his regular nights off, beginning in July, 1999. The assignment thus required that he work a full eight hours on Sundays, from midnight until 7:00 Sunday mornings and from 11:00 p.m. until midnight Sunday nights -- leaving him off only from 7:00 a.m. to 11:00 p.m. Sundays.
B. The Accommodation Action
According to Bowles, immediately after making his pick he went to Station Command and requested help in obtaining a religious accommodation to his new work schedule. He was given the appropriate form, known as a "G2." In the subject line of the G2, attached as Exhibit D to Def. 56.1 Statement, Bowles wrote "Sabbath Observation," and explained, "I am requesting to have Sundays off so that I may attend religious services to [sic] which I am a part of." The form is signed and dated June 9, 1999.
According to Bowles, when he returned the completed G2 to Superintendent Maureen Campo of Station Command, she told him "something to the effect that it will be denied," Bowles Dep. at 77 l. 19-20. He showed her his minister's license, which she photocopied. Campo then told Bowles to have his Church Pastor provide a letter in support of his request. Bowles apparently was not asked for and did not offer any explanation of his request other than the written form.
As Campo had instructed, Bowles obtained a letter from Rev. Jay Gooding, the Pastor and Founder of the Church, and submitted it to Amelia Harrison, then Acting General Superintendent of the Division of Stations, to whom Campo had forwarded Bowles's G2 for action. The letter, on Church letterhead, is dated June 14, 1999 and reads in its entirety:
Dear Superintendent Campo,
This letter is in reference to the request of Mr. Warren Bowles, that he not be scheduled to work on Sundays, due to our Sabbath observance. Mr. Bowles is an associate minister, as well as the Sabbath school superintendent at the Fellowship Tabernacle Ministries. He is an integral part of our church ministry, and his absence would create a serious void in our Sabbath services.
It is our religious belief that we observe our Sabbath day as a day of giving our all (including service) to God.
We would pray that you would consider this letter, when scheduling Mr. Bowles's working shift.
If there are any questions regarding this matter, please do not hesitate to contact Pastor Gooding at [telephone number].
Thanking you in advance, [signature]
Pastor Jay Gooding Bowles testified that when he submitted the letter he asked Harrison whether his request for religious accommodation had been approved and she told him it had not. He asked why and, according to Bowles, she replied that there was "no such policy," Bowles Dep. at 187 l. 8-9. She then said Bowles could have Thursdays and Fridays off, and that if he were not satisfied with that he should seek work in the private sector. At her deposition Harrison testified that she did make such a statement, telling Bowles that "the private industry was the only industry that I still knew that gave every Saturday and Sunday off," Transcript of Harrison's Deposition ("Harrison Dep."), attached as Exhibit H to Plaintiff's Rule 56.1 Statement ("Pltf. 56.1 Statement"), at 109 l. 21-23.
As with Campo earlier, Bowles does not claim that he explained to Harrison his understanding that the Church prohibited work for the 24 hours of Sunday. Harrison stated frequently in her deposition that she understood that Bowles was requesting only that he not be scheduled to work at times that would conflict with his attendance at Church services, see, e.g., Harrison Dep. at 99 l. 3-7, 163 l. 6-14, and 196 l. 6-9, and that Bowles never informed her that he wanted all of Sunday off. Harrison testified that she became aware of the true nature of Bowles's request only when she received a letter on his behalf from his union some time later, see Harrison Dep. at 196 l. 15-25. Bowles does not contradict any of this testimony.
It is undisputed that Transit does in fact have policies whereby an employee can request and be granted a religious accommodation to his work schedule.*fn3 The written policies state that such requests and their supporting documents are to be sent by the department to Transit's Office of Labor Relations for action. However, deposition testimony revealed that an operating department -- such as the Division of Stations, to which Bowles reported - that receives a request will sometimes grant it without review by the Office of Labor Relations, if the department has a job available that will accommodate the request without negative financial impact. See Transcript of Deposition of Charles Glasgow, attached as Exhibit J to Pltf. 56.1 Statement, at 36 l. 12-21. The policies do not specify what if any recourse is available to an employee whose request is denied.
Campo testified that Transit has "always" offered Thursdays and Fridays off to those employees who work nights and request religious accommodation, Transcript of Campo's Deposition ("Campo Dep."), attached as Exhibit M to Def. 56.1 Statement, at 29 l. 15 -- 30 l. 23.*fn4 There is testimony and documentary evidence, which was authenticated as all requests for religious accommodations received by Stations 1999-2000, see Exhibit H to Affidavit of Joann Gundersen, Zone Superintendent in the Division of Stations ("Gundersen Aff."), that numerous requests for religious accommodation have been received and granted by that division, some of which were for time off on Sundays. Harrison also testified that she "quite frequently" has reviewed religious accommodation requests for the entire day of Sunday off, Harrison Dep. at 43 l. 2-25.
After Harrison denied Bowles's request she told Bowles that he should speak with Bill Jones in Policy Compliance if he was dissatisfied with her decision. It is undisputed that Bowles did not speak with Jones, but instead went to Transit's Equal Employment Opportunity Office and spoke with Michael Fyffe, who was then employed as an investigator for that office. According to Fyffe's notes from that meeting, taken on a "Counsel and Advise" form, dated June 14, 1999, which is attached as Exhibit F to Def. 56.1 Statement,
Complainant [Bowles] stated that he needs Sundays off as a religious accommodation because he leads worship services at his church. He further stated that he currently receives Saturday and Sunday off but that he will not be entitled to those days off for the upcoming employee pick. He stated that he submitted a letter from his pastor but he was told by Station Command that unless a Saturday [and] Sunday job is available when he picks he could not be accommodated. Fyffe referred Bowles to Transit's Office of Labor Relations. Bowles called and spoke to Charles Glasgow, Director of Labor Relations for Bowles's division. Glasgow referred Bowles to Barry Callwood, a supervisor in Labor Relations. Cato prepared a "Change of Assignment / Vacation" form, attached as Exhibit F to Def. 56.1 Statement. On the form Callwood changed Bowles's shift and days off for the period July 11 through September 18, 1999, subject to approval by Bowles's department. Callwood signed the form, dated it June 28, 1999, gave Bowles a copy, and forwarded the form to Harrison for approval. In early July, Harrison telephoned Callwood and informed him that, based on her previous review of his G2, Bowles already had the accommodation he needed, since his schedule did not prevent his attendance at Church services. Harrison Dep. at 122 l. 7 -- 10.
On July 9, Callwood telephoned Bowles at home to let him know that the Change of Assignment form had not been approved.
Shortly thereafter, Bowles called the Transport Workers Union ("TWU") and spoke with Loretta Mines, an organizer. She asked him to fax her both a letter from his Pastor and the form he had received from Callwood.
Bowles obtained a second letter from Pastor Gooding, dated July 14, 1999. This second letter reiterates the first, but substitutes a new second paragraph which reads "It is our religious belief and Christian commitment to observe our Sabbath day, which is Sunday, from sun-up till sun-down as a day of giving our all (including service) to God." Bowles faxed this letter and the form from Callwood to Mines sometime in mid-July.
Bowles eventually obtained a third letter from Pastor Gooding, dated July 21. This letter also reiterates the June 14 letter, but its second paragraph reads "It is our religious belief and Christian commitment to observe our Sabbath Sunday. Nevertheless, our Christian doctrine, forbids Christians of any work on the Sabbath Sunday. It is our lawful ...