Durant v. NYNEX (101 F. Supp. 2d 227, 2000)

OPINION

STEIN, District Judge.

Pro se plaintiff Marquita Durant is a Seventh Day Adventist who charges that her employer, NYNEX, discriminated against her by refusing to accommodate her religious observances and retaliated against her on the basis of her religion. Durant alleges that this violated 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., New York State Executive Law §§ 290 et seq. and the New York City Administrative Code §§ 8-101 et seq.

Defendants have moved for summary judgment on all claims. As set forth below, defendants’ motion is granted on the grounds that (1) Durant has not stated a claim of religious discrimination or retaliation pursuant to Title VII because NYNEX took no adverse employment action against her, (2) NYNEX reasonably accommodated her religious beliefs, (3) Durant was not subject to a hostile work environment on account of her religion, (4) Durant’s claim for racial discrimination pursuant to Title VII is proeedurally barred, (5) Durant has not stated a claim for discrimination in violation of 42 U.S.C. § 1981, and (6) her New York state law claims are dismissed on similar grounds.

I. Background.

A. Plaintiff.

Durant, as a member of the Seventh Day Adventist Church, observes the Sabbath as a day of rest, beginning at sunset on Friday and continuing until sunset Saturday. See Miklave Aff. Exs. H & I.

NYNEX hired Marquita Durant on July 7, 1987 to work as a Directory Assistance Operator. She continued in that job until June 1996, when NYNEX promoted her to the position of Customer Service Administrator (“CSA”). See Miklave Aff. Ex. K. She is currently on a leave of absence for unrelated medical reasons.

B. Scheduling Problems Begin.

Prior to Durant’s promotion to Customer Service Administrator, NYNEX was able to arrange her schedule so that her shifts would not conflict with her observance of the Sabbath. Customer Service Administrators, however, are regularly assigned to tours that cover various periods from Monday through Saturday, including nights and Saturdays.

As part of her new responsibilities, in June of 1996 Durant began a five week training course which met Monday through Friday from 4pm until midnight. For the term of the training course, NYNEX permitted Durant to leave early on Friday. The training course did not require Saturday shifts. See Def. Statement ¶ 8. During July and August, Durant worked a “probation” schedule which only required weekday shifts.

In order to try to avoid any future scheduling conflict, plaintiff notified her union representatives, NYNEX’s EEO representative, and her new supervisor, Louis DeMartino, that her religious beliefs prevented her from working on Friday night or Saturday. DeMartino explained that the department operates rotating tours, including Friday nights and Saturdays, and that he could not make an exception for her because then everyone else would want special days off. See Durant Aff. Ex. F. (EEOC Aff. Dated March 26, 1997). DeMartino told her that she should accept a demotion and return to her old job if she could not work on Saturdays. See Miklave Aff. Ex. K. Durant claims that her union representatives and the company’s EEO representative never investigated her right to a reasonable accommodation despite her inquiries. See id.

In the beginning of September 1996, Durant was inserted into the regular CSA schedule. See Durant Aff. fB.l. The CSAs’ collective bargaining agreement (“CBA”) committed NYNEX to assign CSA night shifts on a rotating basis to all CSAs with fewer than 25 years of experience. See Miklave Aff. Ex D. Saturday daytime shifts are assigned as night shifts according to longstanding union and NYNEX policy. See Fitch Aff. ¶ 22.

Pursuant to the CBA, NYNEX must offer CSAs equal overtime opportunities. See Fitch Aff. ¶¶ 20 & 21. CSAs who are offered overtime are “charged” for the overtime, regardless of whether they actually work the overtime, and are then moved to the bottom of the “order of call” list. See Fitch Aff. ¶ 23.

NYNEX’s manager in charge of scheduling, Michael Casale, excused Durant’s first regular-shift absence in September 1996. See Miklave Aff. Ex. K. Two weeks later, plaintiff was again scheduled for a Saturday shift. She reminded Casale about the conflict with her religious beliefs and he “shrugged his shoulders,” allegedly saying “do what you have to do and we’ll do what we have to do.” Durant arrived at work four hours tardy, was marked late and docked pay for the time period she did not work. See Miklave Aff. Ex. K. At approximately this time, Casale allegedly asked Durant if she was Jewish in a tone which Durant found “condescending.” See Durant Aff. ¶ B.10.

NYNEX continued scheduling Durant to work on Saturdays every other week. See Miklave Aff. Ex. K. Durant both swapped her assignments with other employees and used her vacation days to avoid absences. See Miklave Aff. Ex. K. Eventually, she decided it was unfair for her to use her vacation time to avoid being marked late or absent. See Durant Dep., at 210. On four occasions, plaintiff failed to take vacation time or find replacements for her Saturday shifts, and therefore accumulated four Sabbath-related latenesses. See Mik-lave Aff., Ex. U.

NYNEX issued “disciplinary warnings” pursuant to the attendance policies it administers — the Absence Control Plan (“ACP”) and the Tardiness Control Plan (“TCP”). See Fitch Aff. ¶¶ 3-17; Miklave Aff. Ex M & N. Both plans impose a six-step progressive corrective scheme ending in termination of employment. An unapproved absence will result in progression of one step pursuant to the ACP. The employee will “retrogress” back one step after three months, unless the employee has another unexcused absence in which case he or she will progress to the next step. An employee who reaches Step VI will be terminated. The TCP operates in a similar manner based upon the length and frequency of latenesses.

These latenesses, in conjunction with other latenesses unrelated to her Sabbath observances, resulted in Durant’s progression in March of 1997 to step V under the TCP. DeMartino then warned Durant that one more lateness would cause NYNEX to sever her from the payroll. See Durant Aff. Ex. F (E.E.O.C. Complaint dated March 26, 97).

In addition, on various occasions, NYNEX offered Durant overtime shifts on Saturday as required by its CBA. She declined to accept those shifts, and NYNEX “charged” her for them and put her on the bottom of the “order of call” list as required by its CBA. Durant believes that the repeated offers of Saturday overtime constituted “continued harassment” and “belittled” her beliefs. See Durant Aff. ¶ B.8.

C. The Alleged Plan to Have Durant “Retreat” to Her Former Position.

Durant charges the administration of the lateness policy was part of a plan by DeMartino to force her to “retreat” to her former position of Directory Assistance Operator. Durant cites a note by DeMar-tino stating that “by 11/1 we must make a decision to retreat her.” See Durant Aff. Ex. K According to Durant’s theory, De-Martino kept diligent notes on her absences and latenesses and the manager assigned to mark employees late watched Durant “like a hawk,” marking her for latenesses of only two minutes. See Durant Aff. ¶¶ 3-4. Although Durant claims that the tardiness of other employees was never recorded, she has never produced the notes she allegedly took regarding these latenesses and does not dispute the accuracy of NYNEX documents showing that other employees were in fact marked for latenesses as short as two minutes. See Miklave Aff. Exs. A & K.

Offended by the inconsistency of the NYNEX lateness policy, Durant circulated an office petition protesting its inconsistent application. See Durant Aff. ¶ B.4; Durant Dep., at 666-680. Durant contends that the collective bargaining agreement requires NYNEX to write up every employee who arrives late, despite an informal policy negotiated with the union that DeMartino had the discretion to excuse an occasional lateness of a usually punctual employee. Durant felt the policy was unfair, since “I think everybody that’s late is supposed to be written up,” and NYNEX management “should not have that much authority.” Durant Dep., at 668; Durant Aff. Ex. E (Petition).

Durant has a history of unexcused late-nesses and absences even apart from her Sabbath conflict. Plaintiffs absence record had previously resulted in her progression to Step Y of the ACP and progressive discipline under the TCP. See Miklave Aff. Exs. Q & R. During the period beginning September 1, 1995 and ending May 1, 1997, plaintiff was absent on four occasions and tardy a total of 33 times, see Miklave Aff. Exs. A, K, & R-U, although none of these absences or latenesses was related to her Sabbath observances.

In October 1996, Durant filed a grievance with her union complaining about NYNEX’s failure to accommodate her religious beliefs. Durant charges that months passed without the union taking any action on the grievance.

D. Durant Complains and NYNEX Accommodates Her.

In late March 1997, Durant filed a flurry of three complaints: On March 21 she filed a grievance with the NYNEX Human Relations department and explained her troubles with DeMartino regarding her Sabbath observance. See Durant Aff. Ex. I. Four days later, Durant filed a charge with the NLRB stating that the union was not processing her earlier grievance in a timely fashion. See Miklave Aff. Ex. U. An Acting Regional Director of the NLRB later concluded that there was insufficient evidence of any NLRA violation to justify issuing a complaint, since the evidence indicated that the union and the employer were processing the grievance. See Durant Aff. Ex. M. Durant appealed his refusal to issue a complaint.

Two days after filing the NLRB charge, Durant filed a complaint with the New York State Division of Human Rights and the EEOC, alleging that NYNEX discriminated against her on the basis of her religion because DeMartino failed to excuse Durant from work during the Sabbath hours. See Miklave Aff. Ex. Z. It neither alleged nor set forth the basis of a race discrimination claim. The complaint requested (a) removal of all disciplinary steps imposed and (b) a commitment not to schedule Durant for work that conflicts with her Sabbath observance.

One month later, the parties resolved the grievance she had filed with the NYNEX Human Relations Department. On April 28, 1997, NYNEX advised plaintiff that it would remove all steps issued against her that were related to her Sabbath observances, including latenesses. See Miklave Aff. Ex K; Durant Aff. ¶ 11. See Miklave Exs. K, T & Y. In addition, a coworker agreed at one of the grievance sessions to swap Saturday shifts with plaintiff when possible. See Miklave Aff. Ex. K. As a result, Durant moved from Step V — “final warning status”' — to Step III. She retrogressed only to Step III because she had non-Sabbath related late-nesses.

NYNEX claims, and Durant does not dispute, that it offered Durant various accommodations, allowing her to swap her shifts, to utilize her vacation days and personal times, or to return to her previous position as a Directory Assistance Operator.

E. Durant Alleges that the Harassment Continues

The resolution did not last. Shortly after all- steps against plaintiff related to her Sabbath observance had been removed, Durant had a verbal altercation with Ca-sale. Casale approached Durant in a hallway near her office and asked her if she wished to work an overtime shift on Saturday. She ignored Casale and walked away from him. Casale again approached Durant and asked for an answer. Durant jumped up, telling Casale to “get out of my face,” and then called the police. According to plaintiff, Casale uttered unspecified racial slurs in the presence of the police. See Durant Aff. ¶¶ B.8-B.10. In her complaint, Durant had claimed that Casale told her that she used words which could only be understood in her “hood.” In her deposition, Durant instead stated that Casale asked her whether the term “in your face” was from her “neighborhood.” See Durant Dep., at 368. Durant had also called an ambulance, but when it never came the police took her to Coney Island Hospital. See id., at 374. The police apparently told her that Casale did not make any threats, though she claimed to feel intimidated. See Durant Aff. ¶ B.9.

Durant charges that the incident reflects ongoing harassment by NYNEX because Casale knew that she was a Sabbath observer and offered her the overtime shift solely to antagonize her. She also charges that Casale would sometimes ask her repeatedly whether she wanted to work Saturday overtime, and then tell her he was “only kidding.” See Miklave Aff. Ex L, at ¶ 12. NYNEX states that Casale was simply following his obligation under the CBA to offer overtime in rotating shifts to all eligible employees, a suggestion that Durant dismisses stating that she had previously offered to sign a statement preventing him from offering her overtime on the Sabbath. See Durant Aff.