Wilkerson v. Metro. Transp. Auth.

OPINION AND ORDER

LEWIS J. LIMAN, UNITED STATES DISTRICT JUDGE

Defendants Metropolitan Transportation Authority (“MTA”), New York City Transit Authority (“Transit”), and Ricardo John (“John” and collectively “Defendants”) move, pursuant to Federal Rule of Civil Procedure 56, for summary judgment dismissing the claim of plaintiff Bernard Wilkerson (“Plaintiff” or “Wilkerson”).

For the following reasons, the motion for summary judgment is granted in part and denied in part.

BACKGROUND

The following facts are undisputed for purposes of this motion except whether otherwise indicated.

I. Plaintiff's Employment at Transit

Wilkerson is an observant Muslim. Dkt. No. 40 ¶ 10. He wears a beard as a tenet of his faith. Id. He has been employed by Transit since March 2001 when he was hired as a conductor. Id. ¶ 1. He attained “permanent” status as a conductor following his completion of a one-year probationary period. Id. ¶ 2. He was one of over 100 employees beginning in the role of

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conductor at Transit. Id. ¶ 16. At the time he completed his probationary period and became a permanent conductor, there were over 500 conductors working for Transit. Id. ¶ 17.

Pursuant to a collective bargaining agreement between Transit and Local 100 of the Transport Workers Union of America, of which conductors at Transit are members, conductors “pick, ” or select, their job assignments, including reporting location, shifts, and regular days off. Id. ¶ 4. As a permanent conductor, Wilkerson was able to pick an assignment available to employees with the conductor title. Dkt. No. 47 ¶ 6. Conductors may pick one of four job assignments-road service coordinator, platform conductor, hand switching, and construction flagging-as well as inter-office positions such as mail delivery. Dkt. No. 45 ¶ 5.

Conductors who take on the role of construction flaggers support capital construction projects performed by outside contractors. Dkt. No. 43 ¶ 7. Their role is to provide a safe environment for those contractors working the New York City Transit system. Dkt. No. 47 ¶ 16. Specifically, after determining where the contractors would be placed, construction flaggers position lights and portable trips to ensure that oncoming train traffic becomes aware of the contractors and takes the necessary precautions to avoid injuring anyone on the roadway. Id. Construction flaggers are able to receive additional overtime and have the ability to advance to “lead construction flagger.” Id. ¶ 17.

An average of 55 capital construction projects are in progress during the course of any given week, a large portion of which take place in tunnels and underground stations. Dkt. No. 43 ¶ 9. A list of capital construction projects, together with their locations and staffing needs for each shift, is posted weekly. Id. ¶ 11. Construction flaggers, in order of their seniority, select from that weekly list their “preferred” location, shifts, and regular days off. Id. ¶ 11. There is no guarantee that construction flaggers will be granted their preferred locations, shifts, and regular

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days off. Since a construction project may be affected on any given day by delays in obtaining necessary materials, equipment failure, inadequate coordination of the work among subcontractors and other factors, flaggers may be assigned by management to locations and shifts without regard to their weekly picks. Id. ¶ 12.

Plaintiff was one of about 700 construction flaggers employed with Transit. Dkt. No. 47 ¶ 15. He initially picked the role of construction flagger within the Rapid Transit Operations work program in or around 2003. Id. ¶¶ 7, 14. The role of construction flagger was appealing to Plaintiff, as construction flaggers receive higher compensation than other conductors, most notably hazard pay, and are able to work additional days during the week, receive overtime, and have the ability to advance to “lead construction flagger.” Id. ¶ 17.

II. The Respirator Requirement

When Plaintiff began working as a construction flagger in 2003, there was no requirement that construction flaggers wear a respirator. Dkt. No. 47 ¶ 34. However, some of the work of construction flaggers-the parties dispute whether this is true for the majority of the work-requires them to be in proximity to trains powered by diesel-engine locomotives. Dkt. No. 43 ¶ 13; Dkt. No. 47 ¶ 19. Some diesel-engine locomotives-specifically, the R156 engines that MTA purchased in 2014-emit exhaust containing toxic gases. Dkt. No. 43 ¶ 14; Dkt. No. 30 ¶ 6. In 2014, Transit's Office of System Safety conducted assessments to quantify workers' exposure in a subway environment to the exhaust emitted by these engines. Dkt. No. 40 ¶ 8. The Office of System Safety determined that employees performing work in proximity to the R156 diesel-engine locomotives were “exposed to [nitrogen dioxide] in excess of the New York State Department of Labor (NYS DOL) Short Term Exposure Limit (STEL) of 1 part per million (PPM).” Id. ¶ 9. The Office of System Safety issued a report stating that the overexposure to nitrogen dioxide required that affected workers “must utilize respiratory protection” pursuant to

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Transit's Respiratory Protection Program. Dkt. No. 43 ¶ 17. The report mandated use of a specific respirator and cartridge:

All New York City Transit personnel assigned to work in underwater tubes involving the use of R156 Diesel Locomotives must be included in the NYC Transit's Respiratory Protection Program. Survivair half-face negative pressure air purifying respirators with S-Series combination P100/multi-contaminant cartridges are required for use

Id.

In 2016, 2017, and 2018, Transit issued advisories instructing employees that “[a] tight-fitted negative pressure respirator is the only respirator that is approved for diesel exhaust protection” and that use of the respirator requires the employees to be clean-shaven because “facial hair compromises the seal of the respirator to the face.” Id. ¶ 20 (citing Dkt. No. 30 ¶¶ 911). However, Plaintiff did not see and was not informed of the advisories or of a directive indicating that all employees must be clean shaven. Id.

Defendants are not aware whether there exists a nitrogen dioxide absorbent cartridge for use with a PowerAir-Purifying Respirator (“PAPR”)-which could be used with facial hair-nor does Plaintiff identify that such a cartridge exists. Id. ¶ 19. When Defendants did engage with manufacturers-after the events about which Plaintiff brings this suit-to see if there were alternatives to the specific respirator being used, they did not get a response. Id.

III. Plaintiff's Respirator Accommodation from 2013-2018

In 2013, the first year in which Plaintiff attended a respirator class, it was not yet a requirement for construction flaggers to wear a respirator and respirators were provided on a voluntary basis. Dkt. No. 47 ¶¶ 39-40. At the respirator class, Plaintiff was informed by the instructor that he needed a respirator, and he learned that the beard he wears as a tenet of his faith may interfere with his ability to use a respirator. Id. ¶ 40. The instructor informed Plaintiff that he would be able to use an alternative respirator called a PowerAir-Purifying Respirator

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(“PAPR”) to accommodate his facial hair and that he would not need to be clean-shaven for the PAPR. Id. ¶¶ 42-43. Plaintiff was issued a full facemask and was told that he would be receiving a PAPR in the future. Id. ¶ 44.

Despite receiving this accommodation, Plaintiff continued to attend the respirator class every year. Dkt. No. 44 ¶ 45. After attending the respirator class every year, Plaintiff would receive documentation indicating he had completed the training program and that he required a PAPR to return to work. Dkt. No. 47 ¶ 45. Plaintiff was instructed to give the documentation to his department supervisor, and he did so every year; every year he was notified that he would receive a PAPR, but he never received one. Id. ¶¶ 45-46.

At Transit, the standard practice for requesting a religious accommodation is that the employee requesting the accommodation is directed to fill out documentation accompanied by any supporting documentation and provide it to their supervisor. Id. ¶ 23. The request is then submitted to labor relations. Id. To obtain such an accommodation, an employee is required to submit a statement on what the accommodation requires, what aspect of their religion needs to be accommodated, and what part of their duties needs to be accommodated; typically, this is documentation from an employee's religious institution. Id. ¶ 34. Transit does not require recertification of a request for reasonable accommodation based on religion. Id. ¶ 25. However, if an accommodation has ended, an employee will be notified verbally and in writing. Id.

The parties dispute whether Plaintiff ever officially received such a religious accommodation. It is undisputed that management requested Plaintiff to submit a letter from his Imam confirming his religious beliefs and that he provided such a letter to his supervisor and was informed that the letter would be provided to Defendants' labor relations department. Id. ¶¶ 2729. The record reflects that Plaintiff provided such letters at least in 2016 and 2018. Dkt. No.

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42, Ex. 5. The 2016 letter confirms that Plaintiff is a practicing Muslim, and requests that Transit “continue to allow Mr. Wilkerson to attend service to fulfill his religious obligations and be afford [sic] all the other rights and privileges necessary to enable him to practice his faith.” Id. The 2018 letter reiterates the same request, and adds: “It should also be known that Muslim men wear beards as an aspect of the practice...