Lewis v. N.Y.C. Transit Auth.

12 F.Supp.3d 418

Cecil LEWIS, as Administrator of the Estate of Stephanie Lewis, Plaintiff

v.NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants.

No. 04–cv–2331 SLTMDG.

United States District Court, E.D. New York.

Signed March 31, 2014.

Arthur Z. Schwartz, Advocates for Justice, Chartered Attorneys, Omar T. Mohammedi, Law Firm of Omar T. Mohammedi, New York, NY, for Plaintiff.

Kavita K. Bhatt, Richard Schoolman, New York Transit Authority, Brooklyn, NY, Rhonda J. Moll, Metropolitan Transportation Authority, New York, NY, for Defendants.

MEMORANDUM AND ORDER

TOWNES, 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. § 2000e 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.

Legal Standard

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, 106 S.Ct. 2505. 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, 106 S.Ct. 2505.

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:

Background

Factual Background¹

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). 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.)

B. 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...