United States District Court, E.D. New York
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For Gladys Muhammad, also known as Gladys Wilson, Plaintiff: Armani B. Scott, LEAD ATTORNEY, West Orange, NJ.
For New York City Transit Authority, Defendant: Kavita K. Bhatt, LEAD ATTORNEY, New York City Transit, Brooklyn, NY; Richard Schoolman, LEAD ATTORNEY, New York Transit Authority Law Dept., Brooklyn, NY; Gabriella D Palencia, New York City Transit Authority, Brooklyn, NY.
MEMORANDUM AND ORDER
SANDRA L. TOWNES, United States District Judge.
Plaintiff Gladys Muhammad alleges that the New York City Transit Authority discriminated against her, a Transit Authority bus driver, on account of her religion by transferring her to a bus depot after she refused to remove or cover her khimar -- a headscarf worn by some Muslim women. As relevant here, the amended complaint alleges violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq. and the First Amendment of the U.S. Constitution. The Transit Authority now moves for summary judgment. For the reasons set forth below, the Transit Authority's motion is denied.
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 Plaintiff's 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 3855191, at *1 (E.D.N.Y. Sept. 28, 2010); Def.'s 56.1 Stmt. at ¶ 14.
Muhammad, a Muslim woman, was hired as a bus driver by the Transit Authority in November 2001. (Def.'s 56.1 Stmt ¶ 2; Pl.'s 56.1 Stmt. ¶ 2.) She wore a khimar to work every day, without incident, until July 2002. (Pl's 56.1 Stmt. at ¶ 3; Compl. ¶ 14.) In July 2002, she was told by the general manager of the East New York Depot where she was assigned that she either had to remove her khimar or wear a Transit Authority issued baseball cap on top of her khimar. ( Id. at 18.) When she refused to remove or cover her khimar -- citing a religious objection -- a meeting between Muhammad, her union representative, and Transit Authority officials was called. After the meeting, she was permitted to continue operating a bus out of the East New York Depot. At some point, she was transferred to the 126th Street Depot, where she continued operating a bus without incident until November 2003.
The Transit Authority promulgated a " Temporary Bulletin," the periodic uniform guidelines published by the Transit Authority, dated September 13, 2002 and slated to expire on May 1, 2003, which provided, in relevant part:
Depot logo caps are optional. Depot caps may only be worn with the bill of the cap facing forward.
(Pl.'s Ex. C-1) (bolding in original). The Bulletin made no mention of religious headwear. The Transit Authority issued another Temporary Bulletin, dated April 28, 2003, which states, in part:
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 Ex. C-2) (bolding in original).
In early November 2003, after Muhammad received a violation for failing to comply with the Transit Authority's uniform policies, she was again taken off of her bus route for refusing to remove her khimar or cover it with a Transit Authority baseball cap. (Compl. at ¶ ¶ 25-28; Muhammad 12/11/13 Decl. ¶ 10). She explained to her supervisor that her religious beliefs did not permit her to remove or cover her khimar. General Superintendent Cordell Rogers demanded that Muhammad prove the sincerity of her religious beliefs. (Compl. at ¶ ¶ 25-29.) Muhammad provided a letter, dated November 9, 2003, from Minister Kevin Muhammad, the minister of Nation of Islam's Muhammad Mosque No. 7, which explained that as an active member of the mosque, Muhammad is required to wear " a modest head covering." ( Id. at ¶ 30 and Ex. B.)
Following her meeting with Rogers, Muhammad was taken out of " passenger service" -- that is, any position in which she might interact with the Transit Authority's customers -- and instead assigned to cleaning buses in the 126th Street Depot. The Transit Authority admits that after Muhammad " expressed unwillingness to comply with the headwear portion of the uniform policy," it " reassign[ed] her, [without changing her] title, to a non-passenger service bus operator assignment -- one created for her by taking away overtime from more senior bus operators -- as a 'shifter' in her depot." (Def.'s 56.1 Stmt at ¶ 5.) Before she could begin as a " shifter," Muhammad had to be retrained, and in the interim, she was assigned to cleaning buses. ( Id. at ¶ 6.) The Transit Authority contends that it " was doing [Muhammad] a favor in giving her paid work during a period in which she could not yet be assigned
to actual shifting work (due to her failure [to be retrained].)" (Def.'s 56.1 Stmt. at ¶ 8.)
For the following two weeks, Muhammad reported to work but did not receive any assignments, other than miscellaneous janitorial tasks. After complaining to her union, Muhammad spent two weeks in late November and early December performing work for the union while her grievance was investigated. When she returned to the 126th Street Depot in mid-December, she was again assigned cleaning duties, although she had received " shifter" training on December 1, 2003. (Compl. ¶ ¶ 39-40; Def.'s 56.1 Stmt. at ¶ 6).
On November 17, 2003, after Muhammad was taken out of passenger service, the Transit Authority issued an updated " Permanent Bulletin" applicable to bus drivers. This is the earliest document submitted to the Court by the parties that expressly discusses religious headwear. The detailed uniform policy directs managers to strictly enforce the Transit Authority's headwear policies and to command any employee who refuses to remove or 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 Ex. C-3 at 2.)
A month after completing " shifting" training, on December 31, 2003, Muhammad was officially involuntarily transferred to " shifting" duty -- that is, moving empty buses back and forth within the bus depot and between depots. (Compl. Ex. D.) Muhammad declares that " [s]hifting is not desirable work due to the strenuous nature of the work and the noxious fumes which accumulate in the bus yard." (Muhammad 12/11/13 Decl. ¶ 17.) She testified at her deposition that she was required to fuel the buses using a heavy metal hose that hurt her shoulders and wrists to operate. (Muhammad Dep. 8:20-9:2.) This transfer also caused Muhammad to be stigmatized by her colleagues, because she was involuntarily assigned to a highly-coveted shift, one that included regular Saturdays and Sundays off. Typically, more senior Transit Authority employees are entitled to exercise their seniority to secure their desired shifts. As a result of being assigned a shift with weekends off " she became the object of scorn and ridicule from more experienced employees" who were angry that Muhammad had been assigned to the " most coveted" days off. (Compl. at ¶ ¶ 42-44.) Employees with less seniority than Muhammad were permitted to select their shifts in light of their seniority, but Muhammad was not. ( Id. at ¶ ¶ 44-45.) Muhammad had no control over her schedule and " absolutely no contact with [Transit Authority] customers since late November of 2003." ( Id. at ¶ 46.) Muhammad continued to work as a " shifter" in the 126th Street Depot until the fall of 2005, when the Transit Authority terminated her employment. (Def.'s 56.1 Stmt. at 13.)
Muhammad filed a charge of discrimination with the EEOC, which was signed on October 24, 2003 and received by the EEOC on December 10, 2003, and which provides:
Complainant is of the Islamic faith. Her religious beliefs require her to cover her head with a Khimar (obligatory headdress). Nothing is to be worn over the khimar.
Complainant commenced employment with the NYC Transit Authority as a bus operator in November 2001. Complainant was informed that ...