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Jamil v. Sessions

United States District Court, E.D. New York

March 6, 2017

LIRON JAMIL, Plaintiff,
v.
JEFF SESSIONS, as Attorney General, Defendant.

          MEMORANDUM & ORDER

          PAMELA K. CHEN, United States District Judge.

         Plaintiff Liron Jamil brings this action against Defendant Jeff Sessions, [1] alleging religious discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), on the basis that the Bureau of Prisons (“BOP”) failed to accommodate his religion (Orthodox Judaism). Defendant[2] now moves for summary judgment. For the reasons discussed below, the Court DENIES Defendant's Motion for Summary Judgment, finding that a reasonable jury could conclude that Defendant failed to prove that it reasonably accommodated Plaintiff or that it would be unable to do so without incurring undue hardship.

         BACKGROUND[3]

         I. THE FACTS

         A. The Parties

         Plaintiff Liron Jamil (“Plaintiff” or “Jamil”) is an Orthodox Jew who refrains from work on the Sabbath as part of his faith. (Dkt. 24 (“Def's Exs.”), Ex. B, at 9-10, 19-20). The Sabbath is a 25-hour period starting at sunset on Friday and ending one hour after sunset on Saturday. (Dkt. 24-2 (“Def. 56.1”) ¶ 2.)

         Metropolitan Detention Center (“MDC”) Brooklyn is the largest federal detention center within the Bureau of Prisons (“BOP”). (Def. 56.1 ¶ 9.) MDC Brooklyn receives and discharges inmates 24 hours per day and seven days per week. (Def. 56.1 ¶ 10.) During Plaintiff's employment, MDC Brooklyn housed approximately 2, 500 inmates and employed more than 500 staff members, 320 of whom were correctional officers. (Def. 56.1 ¶¶ 11, 20; Def. Ex. K (“Hess Deposition”) at 6.) According to Defendant, during a 25-hour period, approximately 176 officers were required to maintain the security of MDC Brooklyn. (Def. 56.1 ¶ 12.)

         Frank Strada became the warden of MDC Brooklyn in approximately June 2011. (Def. 56.1 ¶ 13.) As the warden, he was responsible for the overall security and safety of the institution and the correctional officers. (Def. 56.1 ¶¶ 16, 82.)

         Douglas Hess was a captain at MDC Brooklyn during Plaintiff's employment at the facility, and was the chief correctional services supervisor. (Def. 56.1 ¶¶ 17-18.) Hess oversaw the staffing of the correctional services roster, “making sure that no post went unassigned and that security was not compromised.” (Def. 56.1 ¶ 19.) He oversaw the staffing of approximately 320 correctional officers to fill 200 different posts at MDC Brooklyn. (Def. 56.1 ¶ 20.) Staff requests for sick time, days off, and annual leave were handled by the Administrative Lieutenant or the Deputy Captain, who in April 2013 was Richard Wolfe. (Def. 56.1 ¶¶ 24-25.)

         During Plaintiff's employment at MDC Brooklyn, Elizabeth Marin-Rodriguez was the Human Resources manager, and was responsible for coordinating staffing, training, benefits, and incentive awards, as well as responding to labor grievances. (Def. 56.1 ¶¶ 27, 29.)

         B. Plaintiff's Application Process and Initial Employment

         Plaintiff applied to work as a correctional officer with the BOP in 2013. (Def. 56.1 ¶¶ 30-31.) He submitted an online application, his resume, and other documentation, and had two interviews. (Def. 56.1 ¶¶ 31-32.) In the course of the interviewing process, Plaintiff was told that correctional officer shifts varied, that the position included work on holidays and during weekends, and that correctional officers worked rotating schedules. (Def. 56.1 ¶ 33.) Plaintiff was not asked if he would be able to work Friday evenings or Saturdays, and Plaintiff did not inform anyone during the interview process that he would be unable to work during those hours. (Def. 56.1 ¶ 34; Pl. 56.1 Counterstatement ¶ 34.)

         The correctional officer job description stated that “[d]uring institution emergencies or other periods of heavy workload or limited staff, correctional officers may be required to work long and irregular hours, unusual shifts, Sundays, holidays, and unexpected overtime.” (Def. 56.1 ¶ 35.)

         BOP hired Plaintiff as a correctional officer at MDC Brooklyn, and he started work there on or about March 25, 2013. (Def. 56.1 ¶¶ 36, 40.) As a new hire, he was a probationary correctional officer, meaning that he worked on a training roster with a rotating schedule. (Def. 56.1 ¶¶ 41, 44, 92-93) Probation “generally lasts about a year, but can be reduced to six months.” (Def. 56.1 ¶ 46.) In contrast, non-probationary employees bid on their work schedules based on seniority. (Def. 56.1 ¶ 43, 91-92.) Senior officers “[g]enerally” bid to have Friday evenings and Saturdays off.[4] (Def. 56.1 ¶ 94.) Probationary officers “generally did not have Saturdays off.” (Def. 56.1 ¶ 96.)

         C. Plaintiff's Scheduling Conflicts

         In March 2013, Plaintiff was scheduled to complete a two-week training period. (Def. 56.1 ¶¶ 36, 47.) Three to four days of the training fell on Passover. (Def. 56.1 ¶¶ 50-51.) Plaintiff informed Human Resources that he could not attend some of the training dates because they coincided with Passover. (Def. 56.1 ¶ 55.) The BOP did not require Plaintiff to attend training on days that coincided with Passover, allowing him to make up the training on different days. (Def. 56.1 ¶ 53.)

         Plaintiff received his first work schedule at the end of the training period; that schedule contained his work hours for the following two weeks. (Def. 56.1 ¶¶ 55-56.) Plaintiff told someone at Human Resources[5] that he had a conflict with his assigned shift on Saturday, April 13, 2013, because of his Sabbath observance. (Def. 56.1 ¶ 58-59; Def's Ex. B at 29.) Plaintiff also spoke with Captain Hess about his conflict, and Captain Hess told him “that's not going to be a problem.” (Def's Ex. B at 29-30.)[6] Upon being instructed to do so by someone at Human Resources, Plaintiff submitted a written request on April 5, 2013 to the Associate Warden and to Captain Hess asking “permission to have any/all work scheduling to be generated outside of the Sabbath time frame.” (Def. 56.1 ¶¶ 60-61.) In the meantime, Marin-Rodriguez told Plaintiff that he could try to alleviate his scheduling conflict by swapping shifts with other officers or putting in a request for leave without pay. (Def. 56.1 ¶¶ 62-63.) Strada was the only person with the authority to grant requests for leave without pay, and the ability to obtain such leave was subject to staff availability. (Def. 56.1 ¶¶ 72, 109.)

         On April 17, 2013, Plaintiff submitted a letter to Strada, stating that he had not received a response to his April 5, 2013 request to be permanently excused from all Sabbath shifts, and requesting retroactive leave without pay for April 13, 2013, and leave without pay for Friday, April 19, 2013 and Saturday, April 20, 2013. (Def. 56.1 ¶¶ 70-71.) Strada granted Plaintiff's requests for leave without pay for the three specified shifts. (Def. 56.1 ¶¶ 72-73; Def's Ex. B, at 50.)

         D. Defendant's Response to Plaintiff's Request for Permanent Accommodation

         Strada and Marin-Rodriguez discussed Plaintiff's request to be permanently excused from Friday evening and Saturday shifts; that discussion included consideration of the proper response to the request pursuant to the Master Agreement between the correctional officers' union (“the Union”) and the BOP. (Def. 56.1 ¶ 75; Pl. 56.1 Counterstatement ¶¶ 132, 135.) The Master Agreement was a collective bargaining agreement (“CBA”) that covered non-probationary employees, but did not govern probationary employees, such as Plaintiff. (Def. Ex. L, at 17.) Although Strada appears to have told Marin-Rodriguez that he would follow agency protocol, (Def's Ex. L, at 54-55, ) Strada himself was unaware of any company policy or protocol concerning religious accommodations, as this was the first or second religious accommodation request he had received. (Pl. 56.1 Counterstatement ¶ 134; Def's Ex. H, at 20- 21.) Marin-Rodriguez had encountered only one previous request from a correctional officer for a religious accommodation during her seven years in the Human Resources Department. (Def's Ex. L, at 6-7, 49.) There is no evidence that Marin-Rodriguez and Strada discussed the financial impact, scheduling impact, or impact on employee morale that would have resulted from granting Plaintiff's request. (Pl. 56.1 Counterstatement ¶ 142; Def's Ex. L, at 59-60.)[7] Both Marin-Rodriguez and Strada acknowledged that they were not involved in the roster assignments, and that Hess and the Lieutenants had that role. (Def's Ex. H, at 45; Def's Ex. L, at 23-24.) Hess testified that he had no recollection of Marin-Rodriguez or anyone else from Human Resources asking him for any information about the effect of accommodating Plaintiff's request on staffing, or for any rosters to review. (Def's Ex. K, at 39-40.) Hess also testified that he never brought Plaintiff's request to the attention of any of the Union representatives. (Def's Ex. K, at 36.)

         Marin-Rodriguez researched the issue, and sent a draft response memorandum to the BOP's Employment Law Branch in Washington, D.C. for legal review. (Def. 56.1 ¶ 77; Pl. 56.1 Counterstatement ¶¶ 136, 138.) The draft memorandum denied Plaintiff's request to be permanently given days off on the Sabbath. (Id.) Marin-Rodriguez sent the draft memorandum, and may have sent Plaintiff's request letter, to the Employment Law Branch, but she did not send any additional documentation, and the Employment Law Branch never requested any additional information or documents. (Def's Exhibit L, at 44-47.) Marin-Rodriguez stated that her draft was based on “training received, . . . on the law, [and] . . . on the DOJ Reasonable Accommodation Manual, ” but that she did not have access to the Accommodation Manual that day, “which is why [the draft] went for Legal Review as well.” (Id. at 60-61.) Marin-Rodriguez had received yearly training about how to handle religious accommodation requests by employees, although the training was not specific to correctional officers. (Id. at 62.) At the time of her deposition in this case, Marin-Rodriguez stated that she “believe[d]” there was a section in the DOJ Reasonable Accommodation Manual about religious accommodation but did not “know it off the top of [her] head.” (Id. at 61.)

         After the Employment Law Branch reviewed the response memorandum, Marin-Rodriguez made “minor” changes, consisting of an additional citation, and gave it to Strada, who reviewed the memorandum, signed it, and gave it to Plaintiff on April 22, 2013. (Def. 56.1 ¶¶ 78-79; Pl. 56.1 Counterstatement ¶ 141.) In the memorandum, Strada denied Plaintiff's request to be permanently excused from Friday night and Saturday shifts, “based on the effects that granting such a request would have on MDC Brooklyn, including (a) the operational and financial effects; (b) the potential infringement on the seniority system outlined in the Master Agreement; and (c) the effect on the morale of other employees.” (Def. 56.1 ¶¶ 80-81.)[8]

         At Strada's deposition in this case, he stated that a schedule change to accommodate Plaintiff in the way he requested would have ”impact[ed] the whole operation of the institution.” (Def's Ex. H, at 41-42; Def. 56.1 ¶ 83.) More specifically, according to Strada and Hess, granting the requested schedule change would have: (1) required paying other staff overtime to cover Plaintiff's shifts, whereas Strada had always sought to minimize overtime because of MDC Brooklyn's “limited” and “strict” budget (Def. 56.1 ¶¶ 85, 88-89);[9] (2) violated the seniority system by allowing Plaintiff to work a schedule that other correctional officers gained only through seniority and the ability to bid for their desired schedules (Def. 56.1 ¶ 97; Def's Ex. K, at 21-22, 23); (3) affected morale among the staff by allowing Plaintiff to work a schedule preferred by more senior officers (Def. 56.1 ¶¶ 98, 100)[10]; (4) required pulling other officers and staff members from previously assigned posts, thus resulting in an increase in those officers and staff members' workloads, and an administrative burden on the institution (Def. 56.1 ¶ 99); and (5) affected the security of the institution (Def's Ex. J, at ¶ 15.)

         E. Plaintiff's Efforts to Adjust His Schedule to Accommodate His Religious Observance

         During the three-month period that Plaintiff worked as a probationary correctional officer, he was assigned to a shift that fell during the Sabbath every week, starting on April 13, 2013. (Def. 56.1 ¶ 66.) Wolfe, the supervisory officer in charge of leave requests, trained Plaintiff on how to use the facility's computerized mutual exchange board to post requests for shift swaps with other officers. (Def. 56.1 ¶¶ 105, 111.) Plaintiff successfully engaged in several mutual swaps for Friday shifts that fell during the Sabbath, but he was unable to find an officer willing to work his assigned Saturday shifts. (Def. 56.1 ¶¶ 67-68.)

         When Plaintiff was unable to find an officer willing to do a swift swap with him, he submitted a request for leave without pay for his first Saturday shift, on April 13, 2013. (Def. 56.1 ¶¶ 64-66, 69.) Strada granted Plaintiff's requests for leave without pay when there was sufficient staff to relieve him, which amounted to approximately six or seven times during the three-month period, but denied Plaintiff's requests when there was insufficient staff or insufficient funds to cover overtime, which occurred on approximately nine occasions. (Def. 56.1 ¶¶ 116-20, 123.)[11]

         On those occasions when Plaintiff's requests for leave without pay were denied and he could not find someone with whom to swap shifts, he did not report to work. (Def. 56.1 ¶¶ 119, 123.) On those occasions, he was marked absent without leave (“AWOL”). (Def. 56.1 ¶ 120.) Plaintiff was not paid for days that he received leave without pay or for days that he was marked AWOL. (Def. 56.1 ¶ 121.) Generally, when a BOP employee has repeated charges of AWOL, the agency conducts an investigation, during which the employee has the opportunity to give an oral or written explanation of the charges, and then the agency determines if any disciplinary action is warranted. (Def's Ex. I, at ¶ 8.) Disciplinary action ranges from a letter of reprimand to suspension. (Id.) Plaintiff was neither investigated nor sanctioned for his AWOL designations. (Def. 56.1 ¶ 124.)

         On some occasions when Plaintiff did not report to work and was marked AWOL, Strada paid overtime to other MDC staff members to cover Plaintiff's assigned post. (Def. 56.1 ¶ 128.)[12] MDC Brooklyn paid 56 hours of overtime to cover Plaintiff's shifts, which Strada had to deduct from other parts of the MDC budget. (Def. 56.1 ¶¶ 129-30.)[13] On those occasions, staff had to be pulled from other assignments to fill Plaintiff's vacant post. (Def. 56.1 ¶ 131.)

         On June 5, 2013, Plaintiff resigned from his position. (Def. 56.1 ¶ 4.) He testified that he was “financially . . . burdened by not being able to work” the days that he was being designated as AWOL, and that the “stress factors” of trying to get accommodations so that he could observe the Sabbath essentially “forced [him] into resigning.” (Def's Ex. B, at 65-67.) He stated that he was not “making the income [he] needed to, ” “wasn't able to pay [his] bills on time” and had been required to start withdrawing money from his savings and from his wife's savings. (Id. at 67.) Plaintiff also was unable to supplement his income with other work, because his work shift was on rotation rather than a set schedule. (Id.) Strada confirmed that, to his knowledge, Plaintiff resigned “because of financial issues . . . because he couldn't - obviously, he couldn't work on Fridays and Saturdays, he was taking the leave without pay and not getting paid[, and] was incurring financial hardship.” (Def's Ex. H, at 50.)

         II. PROCEDURAL HISTORY

         Plaintiff filed this suit on April 11, 2014, alleging that Defendant had discriminated against him on the basis of his religion in violation of Title VII by failing to accommodate his reasonable request for a religious accommodation. (Dkt. 1.) Defendant's Motion for Summary Judgment was fully briefed on April 22, 2016. (Dkt. 25.)

         DISCUSSION

         I. STANDARD OF REVIEW

         A defendant seeking summary judgment must establish that “there is no genuine dispute as to any material fact, ” and that they are thus “entitled to judgment as a matter of law.” FRCP 56(a). “Material” facts are facts that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Genuine” disputes exist “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         “The moving party bears the burden of establishing the absence of any genuine issue of material fact.” Zalaski v. City of Bridgeport Police Dep't, 613 F.3d 336, 340 (2d Cir. 2010). Once a defendant has met this initial burden, the plaintiff must “designate specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986) (emphasis added; quotations omitted).

         The Second Circuit has “explicitly cautioned district courts to use extra care when deciding whether to grant summary judgment [in employment discrimination cases] because the ultimate issue to be resolved in such cases is the employer's intent, an issue not particularly suited to summary adjudication.” Thompson v. Kaufman's Bakery, Inc., 03-CV-340S, 2005 WL 643433, at *3 (W.D.N.Y. March 16, 2005); see also Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994) (stating that “[a] trial court must be cautious about granting summary judgment to an employer when, as [in a discrimination case], its intent is at issue”). Nevertheless, the “summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion.” Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985); see also Marmulszteyn v. Napolitano, 08-CV-4094, 2012 WL 3645776, at *5 (E.D.N.Y. Aug. 22, 2012) (“Although the Second Circuit has stated that district courts should be particularly cautious about granting summary judgment to an employer in a discrimination case when the employer's intent is in question, summary judgment in such a case may still be warranted if the plaintiff relies on conclusory allegations of discrimination and the employer provides a legitimate rationale for its conduct.” (internal quotations and alterations omitted) (quoting Figueroa v. N.Y. Health and Hosps. Corp., 500 F.Supp.2d 224, 227-28 (S.D.N.Y. 2007))).

         II. RELIGIOUS DISCRIMINATION BASED ON ...


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