United States District Court, E.D. New York
CECIL LEWIS, as Administrator of the Estate of STEPHANIE LEWIS, Plaintiff,
NEW YORK CITY TRANSITY AUTHORITY, et al., Defendants
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For Ruth D. Raisfeld, Mediator: Ruth Debra Raisfeld, LEAD ATTORNEY, Attorney at Law, Scardale, NY.
For Cecil Lewis, as Administrator of the Estate of Stephanie Lewis, Plaintiff: Arthur Z. Schwartz, LEAD ATTORNEY, Advocates for Justice, Chartered Attorneys, New York, NY; Omar T. Mohammedi, LEAD ATTORNEY, Law Firm of Omar T. Mohammedi, New York, NY.
For New York City Transit Authority, Defendant: Kavita K. Bhatt, LEAD ATTORNEY, New York City Transit, Brooklyn, NY; Richard Schoolman, New York Transit Authority, Law Dept., Brooklyn, NY; Rhonda J. Moll, Metropolitan Transportation Authority, New York, NY.
MEMORANDUM AND ORDER
SANDRA L. TOWNES, United States District Judge.
Substitute plaintiff Cecil Lewis, (" Mr. Lewis" or " plaintiff" ), brings this action as administrator of the estate of former-plaintiff Stephanie Lewis, (" Lewis" ), his deceased wife. Plaintiff alleges that the New York City Transit Authority (" the Transit Authority" ) discriminated against Lewis, formerly a Transit Authority bus driver, on account of her religion by transferring her to a bus depot and de facto terminating her employment for refusing to remove, cover with a cap, or affix a logo to her khimar, which is a headscarf worn by some Muslim women. The amended complaint alleges violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq.; New York State and City Human Rights Laws, N.Y. Exec. Law § 290 et seq. (" NYSHRL" ), N.Y.C. Admin. Code § 8-107 et seq. (" NYCHRL" ); 42 U.S.C. § 1983; the First and Fourteenth Amendments of the U.S. Constitution; and Article 1, Sections 8 and 11 of the New York State Constitution. The Transit Authority now moves for summary judgment. For the reasons set forth below, the Transit Authority's motion is denied in its entirety.
Summary judgment is appropriate only 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 the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The role of the court is not " to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A genuine issue of fact exists when there is sufficient " evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. In determining whether there is a genuine issue of material fact, a court resolves all ambiguities and draws all justifiable inferences in favor of the non-moving party. Id. at 255.
The Second Circuit has cautioned that " [w]here an employer acted with discriminatory intent, direct evidence of that intent will only rarely be available, so affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010).
With that standard in mind, the pertinent facts, undisputed, or where disputed considered in plaintiffs' favor, are as follows:
The Transit Authority is the country's largest mass transit agency, employing
about 45,000 people, including approximately 10,000 bus operators and 3,000 train operators. United States v. New York City Transit Auth., 04-CV-4237, 2010 WL 385 5191, at *1 (E.D.N.Y. Sept. 28, 2010). Lewis, a Muslim-American woman, was hired as a bus driver by the Transit Authority in 1989. (Pl.'s 56.1 Stmt ¶ ¶ 1-3.) She wore a khimar whenever she was in public, including at work. ( Id. at ¶ ¶ 2-3.) When she was first hired, she provided a letter to her supervisors from her Imam explaining that her religion required that she keep all parts of her body except her face and hands covered. ( Id. at ¶ ¶ 7-8.) Her khimar was the same color as her Transit Authority uniform, which consisted of blue pants and a blue shirt or sweater. ( Id. at ¶ 9.) On her right sleeve, which was visible to passengers who boarded her bus, she wore a patch bearing the Transit Authority logo and a metal badge with her Transit Authority identification number. ( Id. at ¶ ¶ 10-13.)
Until 2003, Lewis wore her khimar every day without incident. She received positive performance evaluations and was never reprimanded on account of her khimar. ( Id. at ¶ 5.) From March 2002 until February 3, 2003, she was out on medical leave. While on leave, a union representative contacted Lewis seeking documentation about her khimar. She and another Muslim bus driver, together, provided a letter from their Imam to the union representative, which the representative, in turn, provided to the Transit Authority's General Superintendent Richard Dicciardello. (Pl.'s 56.1 Stmt. Ex. 1, December 10, 2008 Declaration of Stephanie Lewis (" Lewis Decl." ) ¶ 9.)
A. Transit Authority Headwear Policies Governing Bus Operators
The Transit Authority's uniform policies, including those governing headwear, were published in regular " Bulletins." The parties disagree about which policy governing bus drivers was in effect in February 2003. Lewis points to a Bulletin (Pl.'s 56.1 Stmt. Ex. 10) dated September 10, 2001, which was slated to expire on May 1, 2002, which states:
Depot logo caps are optional.
Depot caps may only be worn with the bill of the cap facing forward.
(Pl.'s 56.1 Stmt. Ex. 10) (bolding in original). The Transit Authority's attorney declares that: " According to the TA policy at that time, plaintiff could wear her khimar while operating a bus in passenger service but with a TA depot logo cap on top." (Schoolman Decl. ¶ 8.) The Transit Authority has not submitted any Bulletin or other written document supporting this contention.
The Transit Authority issued a Temporary Bulletin directed at bus drivers, dated April 28, 2003, which states:
Uniform hats/Depot logo caps.
If an operator elects to wear any form of headwear, NYCT issued uniform hats, such as the depot logo caps, shall be
worn (with the bill of the cap facing forward).
(Pl.'s 56.1 Stmt. Ex. 11) (bolding in original).
On November 17, 2003, the Transit Authority issued an updated Permanent Bulletin applicable to bus drivers, which is the earliest document submitted to the Court by the parties that expressly discusses religious headwear. The detailed policy directs managers to strictly enforce the Transit Authority's policies, including the headwear policy, and to command any employee who refuses to cover his or her non-compliant headwear with a " depot logo cap" for religious reasons to " immediately visit the Depot AGM to discuss the matter." (Pl.'s 56.1 Stmt. Ex. 12 at 2.)
A. February 12, 2003 Transfer to Bus Depot
On February 6, 2003, when Lewis returned from medical leave, she was told at a required refresher training class " in a loud voice and rude tone" that her khimar violated the Transit Authority's headwear policy, and she was required to either remove it or cover it with a hat. (Lewis Decl. ¶ 11) When she refused to either remove or cover her khimar, she was asked to leave the training. Later that day, she met with Dicciardello and a union representative. At that meeting, she was told that a " new" Transit Authority policy required her to either remove her khimar or wear a baseball hat that read " Flatbush Depot Brooklyn Division" over her khimar. ( Id. at ¶ ¶ 13-14; see also Pl.'s 56.1 Stmt. Exs. 2-4, Jan. 26-27, 2005 & Nov. 16, 2005 Deposition of Stephanie Lewis (" Lewis Dep." ) at 118-19.) Although Lewis requested to see the new policy, she was never provided with any documentation of the policy effective in February 2003. (Pl.'s 56.1 Stmt at ¶ 33.)
On February 11, 2003, Lewis's first day back as a bus driver, dispatcher Richard Herman boarded Lewis's bus and issued Lewis a " Violation of Rules" for wearing " improper unauthorized headgear" and " refus[ing] to put proper headwear on." (Lewis Decl. ¶ ¶ 17-19.) Herman testified that he was directed by his supervisor to check on Lewis and that he did not want to issue a violation but that " they were forcing [him] to give her a violation." (Pl.'s 56.1 Stmt. Ex. 67 51:21-53:12.)
The next day, February 12, 2003, Lewis again reported to work wearing her khimar and not wearing a Transit Authority baseball hat on top of it. Rather than be permitted to work, she was directed to again meet with Dicciardello, a union representative, and another Transit Authority supervisor. At that meeting, she was again directed to remove her khimar or cover it with a hat. When she refused and explained that " doing so would violate my [Lewis's] religious beliefs," she was told she would no longer be permitted to work in " passenger service," i.e., in view of passengers. (Lewis Decl. ¶ 20.)
That day (February 12, 2003), Lewis was involuntarily transferred from her position as a bus driver and reassigned to work in the bus depot where the headgear policy did not apply because she would be out of the view of passengers. There, she worked with three other female Muslim bus operators who were transferred to the depot after refusing to remove or cover their khimars -- Malikah Alkebulan, Deirdre Small, and Gladys Muhammad (a/k/a Gladys Wilson). (Pl.'s 56.1 Stmt. Ex. 55 ¶ 16(d); United States v. New York City Transit Auth., 04-CV-4237, 2010 WL 3855191, at *3 (E.D.N.Y. Sept. 28, 2010)). A Sikh subway train operator who refused to remove his turban was also transferred out of " passenger service." (Pl.'s 56.1 Stmt. Ex. 55 ¶ 20.)
Plaintiff contends that other bus operators who violated the Transit Authority's headwear policy were not monitored or disciplined in the same manner as Lewis and other female Muslim bus drivers. For example, " after the terrorist attacks of September 11, 2001, many bus operators began wearing FDNY hats to work on a regular basis and continued to do so until mid- to late-2002 ... [and were never] harassed, monitored or written up by [Transit Authority] supervisors." (Pl.'s 56.1 Stmt. ¶ 25.) Moreover, a study conducted by the United States Department of Justice (" DOJ" ) revealed, over 11 hours of observation, " more than 300 instances of TA uniformed employees ... openly violating TA uniform policies. Significantly, 208 TA subway and bus employees were observed working in passenger service wearing head coverings with no visible TA logo or patch, including 103 Russian-style winter hats, 62 knit hats (plain and with brand logos, such as North Face and Columbia Sportswear), six N.Y. Yankees/Mets hats, a variety of baseball hats (including 13 plain, one with an eagle logo, and one with a New York City skyline patch[),] three head bands, eight conductor-style hats, one beret, two kufis, one head scarf/" doo rag" and one fur hat[.]" (Pl.'s 56.1 Stmt. Ex. 95 at 2.)
At the bus depot, Lewis was initially assigned janitorial tasks and then given the task of " shifting" empty buses between depots throughout the city and vacuuming the fare boxes. As a result, she was deprived of seniority -- a benefit that accrues to Transit Authority employees and allows them to control their shifts, hours, routes, and access to overtime. (Pl.'s 56.1 Stmt. ¶ ¶ 45-47.) With more than 13 years' seniority as a bus driver, Lewis had had significant control over her schedule and routes. Once transferred, she lost the benefit of her seniority, and with it, control of her schedule, access to her preferred bus routes, and overtime. ( Id.) As a result, she also lost approximately 10-20 hours of overtime pay per week. ( Id.; Decl. of Authur Z. Schwartz, General Counsel of Local 100 at ¶ 6.)
Lewis described working in the bus depot as " stressful, hectic and unpredictable; " she performed janitorial tasks such as washing windows and cleaning buses -- tasks not typically performed by bus drivers. (Lewis Decl. ¶ ¶ 27-28.) The bus depot was " full of noxious fumes." ( Id. at 33.) Additionally, her supervisors told her that her colleagues were resentful of her because her position was created by taking away overtime opportunities from other Transit Authority employees. ( Id. at ¶ 32.) Lewis was required to sign in and out of work on sign-in sheets that were made only for female Muslim employees when she arrived, took a meal break, or left work, while non-Muslim bus operators were not subjected to this requirement. ( Id. at ¶ 29.) She also was required to seek permission for bathroom breaks -- a requirement reserved only for her. ( Id.) In July 2003, supervisor Billy Pellitier told her that she and other Muslim women were assigned less desirable janitorial tasks and not permitted to select their tasks, as other employees at the depot were permitted to do, because they made a choice to work in the depot by refusing to compromise their religious beliefs. (Pl.'s 56.1 Stmt. at ¶ 57.) On October 24, 2003, in the presence of other Transit Authority employees, a dispatcher named Benny Pecorino, told Lewis that she should " work at Wendy's because 'they wouldn't mind that rag on [her] head.'" (Lewis. Decl. ¶ 31.)
B. April 3, 2003 Union Grievance
Lewis filed a grievance with Amin Khan, Vice President of the Transit Workers Union 100 on April 3, 2003 against a supervisor, Steve LoPiano, at the bus depot for
harassment, humiliation, retaliation, and hostile work environment. (Pl.'s 56.1 Stmt. ¶ 55.) Plaintiff does not indicate whether LoPiano's conduct was motivated by religious animus, and she has not submitted a copy of the grievance. Plaintiff contends that the Transit Authority did not remedy the situation and she continued to be subject to harassment. ( Id.)
C. October 27, 2003 Injury and October 27, 2004 Reclassification as a Station Agent
On October 27, 2003, Lewis tripped over a fare box hose while cleaning a bus and sustained serious injuries. (Lewis Decl. ¶ 38.) As a result, she was unable to perform her duties and took a medical absence. ( Id.) She was notified that she would be terminated after a one-year cumulative absence on October 27, 2004, unless she returned to work or sought reclassification. (Pl.'s 56.1 Stmt. Ex. 22.) On September 17, 2004, Lewis sought reclassification, and, after completing a medical examination, on October 27, 2004, she was notified that she was qualified for the position of " Station Agent," working in a token booth, but there were no vacancies available. (Lewis Decl. ¶ 45.)
D. Station Agent Bulletins dated November 15, 2004 and March 29, 2005
Shortly after Lewis received notice that she could be reclassified as a station agent and return to work, a Bulletin, dated November 15, 2004, was issued which states the following:
All Division of Stations' employees are hereby advised that uniform options have been expanded to include garments in uniform color that can be worn as turbans or khimars and can be used as substitutes for the TA issued cap. No other headwear is required over these garments and they are permitted to be worn in customer service. The headscarf khimar garment will come with an MTA logo already affixed to it. The larger garment (that can be worn as a turban) will come with an MTA logo to be pinned to it when the wearer is in customer service.
The bulletin does not indicate where the Transit Authority logo is affixed on the khimar. (Schoolman Decl. ¶ 3 and Ex. O). This policy was reiterated in a " Uniform Dress Code" Bulletin dated March 29, 2005. The Bulletin states that:
Only NYCT issued uniform hats, or other specified NYCT-issued or NYCT-approved headwear shall be worn. Alternatively, a uniformed employee may wear ... [a] headscarf or khimar made of NYCT-provided blue cotton fabric with an assigned logo affixed to the front, in center.... Managers and Supervisors must monitor this directive for strict compliance.
(Pl.'s 56.1 Stmt. Ex. 16 at 3.) The Bulletin also includes a black and white illustration of a woman wearing a khimar with a circular patch reading " MTA" affixed to the part of her khimar that covers her forehead. Id. at 4. Lewis contends that this was the first time she learned that the Transit Authority logo affixed to her khimar would have to be placed on her forehead. (Pl.'s 56.1 Stmt. ¶ 75.)
A. December 14, 2004 Social Security Disability Application
After learning that there was no position for her as a station agent and because she was unable to perform her job in the depot, Lewis submitted an application for Social Security Disability Insurance (" SSDI" ) on December 14, 2004. (Lewis Decl. ¶ 66; Pl.'s 56.1 Stmt. Ex. 45.) In her application, she stated that she was a bus operator and suffered an injury rendering
her unable to continue that work. ( Id.) Specifically, she stated that as of October 28, 2003, " back pain, hip pain, thigh pain, diabetes, [and] sleep problems" limit her ability to continue her work, i.e., " driv[ing] a bus," because " activity increases my symptoms." (Pl.'s 56.1 Stmt. Ex. 45 at 2.) On April 19, 2005, the Social Security Administration awarded Lewis $1,418.00, monthly. (Pl.'s 56.1 Stmt. Ex. 47.)
B. April 2005 Station Agent Position
On February 18, 2005, the Transit Authority conducted a second medical evaluation of Lewis and again found her medically qualified for reclassification to station agent. (Pl.'s 56.1 Stmt. ¶ 68.) A station agent position was now available. ( Id.)
Lewis began a nineteen-day training program to reclassify as a station agent on April 4, 2005. ( Id. at ¶ 74.) Superintendent Yolande Tonge was instructed to monitor Lewis's compliance with the headwear policy. ( Id. at ¶ 82.) During the training, Lewis was repeatedly asked by Tonge and other supervisors to affix a Transit Authority logo to the part of her khimar that covers her forehead. and Lewis repeatedly refused, explaining that, per her religious beliefs, placing anything on the part of her khimar that covers her forehead would interfere with her prayers, during which she must touch her forehead to the ground. ( Id. at ¶ 77; Pl.'s 56.1 Stmt. Ex. 32; Lewis Decl. ¶ 50.) On April 27, 2005, while in a booth during field training, Tonge yelled at Lewis in front of other Transit Authority employees for not wearing the Transit Authority logo on her forehead. (Lewis Dep. 331:18-332:11; Pl.'s 56.1 Stmt. ¶ 83.) Lewis was sent home for the rest of the day for refusing to remove her khimar or affix a TA logo to it. (Lewis Dep. at 334:16-23.)
On April 28, 2005, Lewis completed her training and was certified as a station agent. ( Id. at 349:2-13.) The following day, on April 29, 2005, when Lewis arrived for her first shift as a station agent, she did not have a Transit Authority logo affixed to her forehead. (Pl.'s 56.1 Stmt. at ¶ 87.) Transit Authority officials immediately tendered a letter terminating her from her station agent position and transferring her back to her position as a bus driver even though they were aware she was medically unable to perform that job. ( Id.) The letter explains that: " ... you were unable to comply with all aspects of the Station Agent position, including NYC Transit's uniform policy. You have not stated that you cannot comply with that policy. As such, you have not met the conditions for reclassification[,] ... your reclassification will be rescinded and you will be returned to your permanent title, Bus Operator ...." (Pl.'s 56.1 Stmt. Ex. 34.) All of Lewis's medical and healthcare benefits were cancelled as of April 2005, following her April 29, 2005 " termination." (Pl.'s 56.1 Stmt. ¶ 111.)
C. June 14, 2005 Termination
After rescinding Lewis's reclassification as a station agent, the Transit Authority conducted yet another medical evaluation for the purposes of reclassifying Lewis on June 3, 2005. (Pl.'s 56.1 Stmt. ¶ 99.) A June 6, 2005 " RW/Reclassification Title Transfer Form" indicates that Lewis was not medically qualified for reclassification to another position at the Transit Authority, although it does not ...