Opinion
No. 01 Civ. 4562 (LTS)(RLE)
September 26, 2003
David M. Fish, Esq., Susan Payton Hall, Esq., Howard B. Leff, Esq., Robert M. Rosen, Esq., ROSEN, LEFF, ESQS., Hempstead, NY, for Plaintiff
Joseph B. Cartafalsa, Esq., Stephen J. Macri, Esq., PUTNEY, TWOMBLY, HALL HIRSON LLP, New York, NY, for Defendant
OPINION AND ORDER
Plaintiff Edwin Bailey ("Plaintiff" or "Bailey") brings this action against The Associated Press ("Defendant" or the "AP"), asserting causes of action for age discrimination under the federal Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621, et seq. (the "ADEA"); religious discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VIT"); retaliation under the ADEA and Title VII; age and religious discrimination under the New York State Human Rights Law, New York State Executive Law sections 296 and 297 (the "NYSHRL"); retaliation under the NYSHRL; and age and religious discrimination under the Administrative Code of the City of New York section 8-107, et seq. (the "NYCHRL"). The Court has subject matter jurisdiction of Plaintiffs ADEA and Title VII claims pursuant to 28 U.S.C. § 1331 and of the state and local law claims pursuant to 28 U.S.C. § 1367.
Before the Court is Defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, dismissing Plaintiffs claims. The Court has considered thoroughly all submissions and argument related to Defendant's motion. For the following reasons, Defendant's motion for summary judgment is granted as to Plaintiffs discrimination claims, and denied as to Plaintiffs retaliation claim.
BACKGROUND
The following facts are undisputed, except as otherwise indicated. Defendant is a member-owned, not-for-profit news collection cooperative. Plaintiff currently works for Defendant as a photographer in its New York City Photo Bureau (the "NY Bureau"). Plaintiff is a 68 year-old white Christian male. Defendant hired Plaintiff as a photographer in 1986. Plaintiff asserts he is an experienced news photographer, and asserts that he has been trained in the field of photography since 1960. (Bailey Aff. ¶¶ 5-14.) According to Plaintiff, he has never been dismissed for cause or for any other type of misconduct in any employment. (Bailey Aff. ¶ 15.)
Although Plaintiff alleges in his Complaint that he began his employment with Defendant as a staff photographer on or about February 1, 1973 (Am. Compl. ¶ 13), he admitted in his deposition that he had been employed by Wide World Photos, a separately incorporated entity related to the AP, from on or about 1973 to 1986. (Bailey Dep. at 83-84.)
At all times relevant to the amended complaint, Defendant employed eight other photographers in the N.Y. Bureau. (Rosen Aff. ¶ 6.) One of those photographers was then-84 year-old Marty Lederhandler. (Rosen Aff. ¶ 6.) Both of Plaintiffs supervisors, Joan Rosen ("Rosen") and Karen Mitchell ("Mitchell"), as well as six of the eight other N.Y. Bureau photographers were over 40 years of age. (Rosen Aff. ¶ 5; Mitchell Aff. ¶ 3.) Rosen is Jewish, and Mitchell is Christian. Plaintiff is a member of the News Media Guild (formerly Wire Services Guild), Local 31222, of the Newspaper Communications Workers of America (the "Union"). The AP and the Union are parties to a collective bargaining agreement establishing, among other things, the terms and conditions of Plaintiff s employment. (Bailey Dep. at 103-104.)
Age and Religious Discrimination Claims Equipment and Training
In the 1990s, Defendant began a transition from film to digital photography. (Rosen Aff. ¶ 8.) Digital photography requires a detailed knowledge of how digital cameras focus, capture light, and stop action. (Id. ¶ 9.) Digital photography also necessitates the use of a computer to download, transmit, archive, and caption the digital images and conveys the image in less than half the time it takes with film photography. (Id. ¶ 10; Bailey Dep. at 92-94.) Plaintiff admits that he was, at all relevant times, less proficient than all of the other AP staff photographers who were using digital cameras. (Bailey Dep. at 382.) There was only one N.Y. Bureau photographer who did not use the digital equipment. (Id.)
In 1998, Plaintiff was offered the option of using digital equipment, but he chose to remain with film. (Id. at 298.) In 1999, some of the photographers who had been using digital cameras were updated to newer digital cameras; Plaintiff agreed to switch to digital at that time. (Rosen Aff. ¶ 11.) Plaintiff alleges that he was then given a type of digital camera that had been previously determined to be defective and plagued with technical problems. (Bailey Aff. ¶ 34.) The camera model that he was given was the one originally given to the AP photography staff in 1998. Staff members who had used that model were issued new cameras at or about the time Plaintiff agreed to switch to digital. Plaintiff asserts that he had difficulties using the older model, that those difficulties were consistent with difficulties that other staff members had experienced with the older model, and that he was the only staff member criticized for performance deficits attributable to poor performance of the camera. (Bailey Aff. ¶ 34.) While Plaintiff concedes that he was given a newer digital camera by June 2000, he asserts that all other younger photographers on the AP staff had already each been assigned two brand new digital cameras and flash units before that time. (Bailey Dep. at 484.) Plaintiff attributes the discrepancy in the quality of equipment to age discrimination. (Bailey Aff. ¶ 39; Bailey Dep. at 163.) According to Defendant, the allocation of equipment was consistent with the AP's longstanding policy of handing down equipment from one staff member to another, especially during training periods. (Rosen Aff. ¶ 11.) Defendant further asserts that, since Plaintiff had continued the use of film and had not used a digital camera up until that point, he was issued one of the original digital cameras to train with during the transition to digital. (Id.)
In 1998, Defendant also issued all N.Y. Bureau photographers, including Plaintiff, laptop computers. (Bailey Aff. ¶ 26.) Plaintiff asserts that Defendant denied him both formal and informal opportunities to receive training on the laptop, which the other AP staff photographers or members of other AP Departments were granted. (Bailey Aff. ¶¶ 27, 28, 36, 37, 106; Bailey Dep. at 295.) In particular, Plaintiff complains that Defendant did not permit him to take his laptop home while he was on a six-week medical leave so that he could practice with it, although staff photographers were required to have their AP-issued equipment with them at all times. (Bailey Aff. ¶¶ 27, 28.) Defendant does not dispute that it refused to permit Plaintiff to keep the computer at home during the medical leave, but asserts that no employees were allowed to keep the laptops at home for extended periods during which they were not working. (Rosen Aff. ¶¶ 20-21). Plaintiff admits that he was not doing work for the AP during the recuperation period. Plaintiff contends that, upon his return to work from his medical leave, the laptop was returned to him damaged and that the unspecified damage "made it impossible for [him] to effectively use [the computer] thereafter." (Bailey Aff. ¶ 29.) In addition, he alleges that his requests for a new laptop and outside Adobe Photoshop ("Photoshop") training for its use were summarily denied. (Bailey Aff. ¶¶ 36, 37, 106.) No other N.Y. Bureau photographer received outside Photoshop training. (Bailey Dep. at 329-30, 367; Rosen Aff. ¶¶ 20-21.)
Performance
The AP began warning Plaintiff about his performance problems as early as April 2000. (Mitchell Aff. ¶ 12; Rosen Aff. ¶ 26.) These were the first warnings that Plaintiff had ever received in his professional career, whether at the AP or elsewhere. (Bailey Dep. at 86.) By memorandum dated June 22, 2000, Mitchell warned Plaintiff that he was "not meeting" the "minimum standards for a staff photographer." (Mitchell Aff., Ex. B.) On October 16, 2000 and December 5, 2000, Mitchell issued Plaintiff "written warnings" about his deficient skill set as a staff photographer and quality or content concerns about his work product. (Id. ¶ 15, Ex. C; ¶ 16, Ex. D.) By memorandum dated December 11, 2000, Mitchell noted positive changes in Plaintiffs work, but still highlighted some required improvements. (Id. ¶ 18, Ex. E.) In a progress report dated January 5, 2001, Mitchell also noted some positive changes, but identified other areas for improvement. (Id. ¶ 19, Ex. F.) In a progress report written on January 16, 2001, Mitchell informed Plaintiff that his work seemed to have "leveled off" below a standard acceptable for a professional staff photographer. (Id. ¶ 20, Ex. G.) By memorandum to Plaintiff dated February 5, 2001, Mitchell informed Plaintiff that, while his work product was getting better, he still had to improve in other areas. (Id. ¶ 22, Ex. H.) Mitchell also issued Plaintiff another memorandum on February 15, 2001, in which she warned Plaintiff that he needed to improve his computer skills. (Id. ¶ 23, Ex. I.) Finally, Mitchell prepared an annual evaluation for Plaintiff in June 2001, in which she highlighted the deficiencies in Plaintiffs work product. (Id. ¶ 25, Ex. K.) Plaintiff attributes any slowness in his work to the AP's failure to train him properly. (Id., Ex. J at 3.) Plaintiff also asserts that the numerous negative criticisms and write-ups he received from Rosen and Mitchell regarding his performance in such a short period time constituted harassment and discrimination. (Bailey Aff. ¶ 86.)
Scheduling
For approximately 29 years prior to 1999, Plaintiff worked night shifts and weekends. (Bailey Aff. ¶ 88; Bailey Dep. at 249). Plaintiff alleges that, in 1999 and continuing into the beginning of 2000 while David Rocha was his supervisor, he was assigned to the day shift and had many weekends off before Defendant hired Mitchell as his supervisor. (Bailey Aff. ¶ 56.) Plaintiff asserts that, after Mitchell was hired, his work schedule became erratic and changed drastically from having almost every weekend off to having virtually none off at all. (Id. ¶ 57.) Plaintiff attributes these scheduling shifts to age and religious discrimination. (Id. ¶ 58.) Plaintiff asserts he requested weekend time off to be with his family, attend religious services and aid his ailing wife, who has been diagnosed with Systemic Lupus and Epstein-Barr Syndrome. (Id. ¶ 51; Bailey Dep. at 9-11.) Although Plaintiff asserts in his affidavit and deposition that he requested weekends off to care for his family and that he considered attendance at religious services and caring for his wife religious duties, Plaintiff has proffered no evidence that he informed the AP of the alleged religious basis of his request for day assignments and weekends off. Evidence does show that he cited a religious rationale in communications with the Union, but no such communications with the AP are proffered in terms of documentary evidence or described in his testimony or affidavit. Defendant asserts that work hours and weekend shifts are dictated by business and news needs and that nearly all of the N.Y. Bureau photographers, including those who are non-Christians and persons younger than Plaintiff, were assigned an equivalent or greater amount of night and weekend work compared to Bailey. (RosenAff.H35.)
Retaliation Claim
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (the "EEOC") on February 8, 2001, alleging age and religious prejudice. (Bailey Aff. ¶ 68.) Plaintiff asserts that, once he filed his EEOC charge, his work schedule was changed from Monday through Friday, approximately 9 a.m. to 5 p.m., to Thursday through Monday, roughly 12 p.m. to 8 p.m., including Sundays. (Am. Compl. ¶ 54.) The EEOC issued Plaintiff a Right-to-Sue Letter on February 28, 2001. (Bailey Aff. ¶¶ 76, 78.) Plaintiff was given 90 days from the date the Right-to-Sue letter was issued to file a complaint in court. (Bailey Aff. ¶ 78.) Plaintiff met the allotted deadline, having filed the instant action on May 29, 2001. (Id.)
The AP suspended Plaintiff without pay for three days beginning May 30, 2001, citing Plaintiffs alleged failure to bring his skills "up to the level of an AP staff photographer." (Bailey Aff, Ex. D.) Plaintiff alleges that the timing of the suspension demonstrates that it was done in retaliation for the EEOC charge and that, although Plaintiff had actually commenced this action on May 29, 2001, the AP did not yet know that and so must have believed it was free to take retaliatory action against Plaintiff because he had failed to meet his deadline for suing on the matters he had raised with the EEOC. (Bailey Aff ¶ 79.)
Defendant disputes this allegation, asserting that Plaintiff was assigned to work night shifts and weekends long before he filed his EEOC charge. (Rosen Aff ¶ 43, citing Ex. H.)
Plaintiff also alleges that he was denied access to assignments surrounding the events and aftermath of the September 11, 2001 terrorist attacks on the World Trade Center (the "WTC")." (Bailey Aff. ¶¶ 92, 93.) Although Plaintiff concedes that he was off work on September 11, 2001, he asserts that, unlike other N.Y. Bureau photographers, he was not called in on that day to cover events at Ground Zero and that, when he contacted the office to request work, he was sent to cover related events on Long Island. (Bailey Aff ¶ 92; Bailey Dep. at 236.) Plaintiff further asserts that he was excluded for three months thereafter from assignments that would have required special access to Ground Zero, and that many others were given such assignments. (Bailey Aff ¶ 62.) Defendant argues that Plaintiff was assigned to significant news stories "surrounding the events and the aftermath" of the attacks. (Bailey Dep. at 348; Rosen Aff. ¶ 51, Ex. K.)
II. DISCUSSION
Legal Standard Applicable to Summary Judgment MotionsSummary judgment shall be granted in favor of a moving party 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 that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of establishing the absence of any genuine issue of material fact. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 256 (1986). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Burt Rigid Box. Inc. v. Travelers Property Casualty Corp., 302 F.3d 83, 90 (2d Cir. 2002) (quoting Anderson, 477 U.S. at 247-48). In the summary judgment context, a fact is material "if it might affect the outcome of the suit under the governing law," and an issue of fact is genuine, "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Holtz v. Rockefeller Co., 258 F.3d 62, 69 (2d Cir. 2001) (internal citation omitted). The Second Circuit has explained that "the party against whom summary judgment is sought . . . . `must do more than simply show that there is some metaphysical doubt as to the material acts. . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'"Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). Discrimination Claims Age Discrimination Allegation
Employment discrimination cases based on circumstantial evidence, such as this one, are "analyzed using the three-step burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)." Elliot v. British Tourist Authority, 172 F. Supp.2d 395, 399 (S.D.N.Y. 2001). First, a plaintiff must establish a prima facie case of discrimination on the basis of his age. Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000). Once the plaintiff has made out a prima facie case, the employer is required to offer a legitimate, nondiscriminatory business rationale for its actions. See id. If the employer provides such a rationale, the plaintiff has the burden of proving that the employer's proffered justification is a pretext for prohibited discrimination. See id.
The following analysis relates to Plaintiffs NYSHRL and NYCHRL claims, as well as his ADEA claim. See Abdu Brisson v. Delta Airlines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) ("Although there are differences between the State HRL, the City HRL and the federal Age Discrimination in Employment Act (`ADEA'), age discrimination suits brought under the State HRL and City HRL are subject to the same analysis as claims brought under the ADEA."); Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2001) (consolidating Title VII and state and city law claims for purposes of analysis.)
To establish a prima facie case, a plaintiff must show (1) membership in a protected class; (2) that he was performing his job in a satisfactory manner or was qualified for the position sought; (3) that he suffered an adverse employment action; and (4) that the adverse employment action took place under circumstances giving rise to an inference of unlawful discrimination. See id.
Plaintiff claims that Defendant's conduct violated the ADEA in several respects: provision of better digital photography equipment and training to the other, younger N.Y. Bureau staff photographers, including failure to permit Plaintiff to take his laptop home for practice; assignment of a more favorable work schedule to the other, younger photographers; and excessive and unwarranted criticism of his job performance in front of the younger photographers.
It is undisputed that Plaintiff is in the protected group, thus meeting the first criterion. As to the second criterion, Defendant asserts that Plaintiff's performance was unsatisfactory. Plaintiff points to publication of his photographs as evidence that he is a good photographer and blames at least some of his acknowledged performance problems on Defendant's alleged provision of inferior equipment and/or training. For purposes of this motion, the Court construes all allegations in the light most favorable to Plaintiff and thus assumes that he meets the second prong of the prima facie test. Even construing the facts in the light most favorable to Plaintiff, however, it is not clear that Plaintiff has demonstrated that he suffered the requisite adverse employment action.
A decision affecting the terms and conditions of employment is "adverse" for the purpose of establishing a prima facie age discrimination case if it creates a "materially significant disadvantage." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 641 (2d Cir. 2000) (citation omitted). A change in working conditions is "materially adverse" if it is "more disruptive than a mere inconvenience or an alteration of job responsibilities." Id. at 640 (citation omitted). Adverse employment actions "might be indicated by a termination of employment, a demotion evidenced by a decrease in wage of salary, a less distinguished title, a material loss of benefits, or other indices . . . unique to a particular situation." Id. (internal citation omitted). A change that affects the terms and conditions of a plaintiff's job "in a materially negative way," but does not result in a reduction in salary or benefits may still qualify as an adverse employment action.Patrolmen's Benevolent Assoc. v. City of New York, 310 F.3d 43, 51 (2d Cir. 2002).
Although Plaintiff's comfort and success level in his job clearly took a turn for the worse after Plaintiff decided to join the AP's transition to digital photography, the evidence, even when viewed in the light most favorable to Plaintiff, does not indicate that Defendant put Plaintiff at a materially significant disadvantage. Plaintiff acknowledges that the other photographers in his group had been required to use the equipment he characterizes as faulty and encountered similar problems, albeit during an earlier time period due to Plaintiffs decision to delay his transition to digital photography. Plaintiff does not proffer evidence that any other member of the N.Y. Bureau was offered training different from or superior to the training afforded him. Plaintiff does not even allege, and there is no evidence of record, that any other N.Y. Bureau staff photographer was permitted to take a laptop home for such an extended leave or that other staff photographers received outside Photoshop training. (Cf. Rosen Aff. ¶¶ 20, 21.)
Nor does the evidence show that Plaintiffs work schedule was materially worse than those of the other N.Y. Bureau photographers or, indeed, worse than the work schedule assigned to Plaintiff for most of his AP career. Plaintiff acknowledges that he did not have the work schedule he prefers for the bulk of his 30-plus year career with the AP and related entities, and that other employees also work nights and weekends. Under the circumstances, Plaintiffs claim of unfavorable scheduling, including evenings, weekends and holidays hardly qualifies as a "materially significant disadvantage." (See Am. Compl. ¶¶ 50-52; see also Bailey Aff. ¶¶ 56-58.) With respect to his claim of unwarranted criticism for problems attributable to faulty equipment, Plaintiff does not proffer any specific evidence that could reasonably support an inference that the performance problems at issue in this case were attributable to the equipment. (Bailey Aff. ¶¶ 108) Plaintiff has thus failed to allege facts sufficient to establish that the matters of which he complained put him at the sort of "material disadvantage" required to meet the material adverse actions prong of his prima facie case.
The record is similarly devoid of evidence, other than the age disparity between Plaintiff and some of his N.Y. Bureau colleagues, from which any inference of discrimination could properly be drawn. As noted above, Plaintiffs evidence is insufficient to demonstrate material disparities between his working conditions and those outside the protected group. He proffers no evidence demonstrating an age-related motive for any disparities that did exist. Indeed, his argument that he should have been given a more favorable working schedule on the basis of seniority suggests that he seeks favorable treatment on account of his age rather than a remedy for age-based adverse treatment. (See Bailey Dep. at 249, 252-54). While the plaintiffs initial burden in asserting a prima facie case of discrimination is de minimis, "it is not entirely without substance." Spiegler v. Israel Discount Bank of New York, 01 Civ. 6364(WK), 2003 WL 21488040, at * 6 (S.D.N.Y. June 25, 2003). In establishing whether a plaintiff has met this minimal burden of demonstrating circumstances that support an inference of discrimination, "the function of the court on a summary judgment motion is to determine whether the proffered admissible evidence shows circumstances that would permit a rational finder of fact to infer a discriminatory motive." Id. (quoting Cronin v. Aetna Life Ins., Co., 46 F.3d 196, 204 (2d Cir. 1995)). Because Plaintiffs evidence of age discrimination is insufficient to establish triable issues of fact as to whether he suffered material adverse employment actions or as to whether the actions of which he complains were the product of age-based animus, Defendant is entitled to judgment as a matter of law on Plaintiffs ADEA claims.
Religious Discrimination Claim
In order to establish a prima facie case of religious discrimination, Plaintiff bears the burden of proffering evidence sufficient to demonstrate that: "(1) he has a bona fide religious belief or practice that conflicts with an employment requirement; (2) he informed the employer of this belief or practice; and (3) he was disciplined for failing to comply with the conflicting employment requirement." Elmenayer v. ABF Freight Sys., No. 98 Civ. 4061 (JG), 2001 WL 1152815, at *5 (E.D.N.Y. Sept. 20, 2001) (citation omitted). Once a prima facie case is established, the employer has the burden of proving that it made good faith attempts "to provide the employee with a reasonable accommodation or that providing such an accommodation would cause undue hardship to the employer's business."Id.
Plaintiff alleges in his complaint that he has consistently and repeatedly asked that his supervisors give him off from work on Sundays so that he could attend to his religious beliefs and practices and that those requests were denied. (Am. Compl. ¶ 49.) In addition, Plaintiff alleges that for two years he requested vacation time off around Christmas so that he could celebrate the religious holiday with his family and that the AP denied those requests without offering legitimate nondiscriminatory business reasons. (Am. Compl. ¶ 52.) According to Plaintiff, his "Christian duties" include "both taking care of [his] family and attending religious services." (Bailey Aff. 148.)
Defendant argues that Plaintiff does not proffer any evidence that his desire to be at home on the weekends and during the holiday season was motivated by anything other than personal preference. Defendant further contends that the AP was not informed by Plaintiff of any bona fide religious belief or practice.
Under Title VII, courts exercise restraint in determining whether a belief is "religious." Eatman v. United Parcel Serv., 194 F. Supp.2d 256, 268 (S.D.N.Y. 2002) (citation omitted). The inquiry consists of two parts: `"whether the beliefs professed by a [claimant] are sincerely held and whether they are, in his own scheme of things, religious.'" Id. (quoting Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984)). Courts apply a "subjective definition of religion, which examines an individual's inward attitudes towards a particular belief system" in which a person's claim "that his belief is an essential part of a religious faith must be given great weight." Id. (internal citation omitted). Nevertheless, courts are aware that "Title YE does not require the accommodation of personal preferences, even if wrapped in religious garb." Hussein v. The Waldorf Astoria, 134 F. Supp.2d 591, 597 (S.D.N.Y. 2001) (internal citation omitted).
In Hussein, the employee-plaintiff brought a religious discrimination suit against his hotel employer when it refused to let him work as a waiter when he came into work one day with a beard in violation of the hotel rules. Id. at 592. Although the plaintiff invoked religion as the reason for his appearance, he had never previously worn a beard in his 14 years of work there. Id. at 597. On this basis, the district court found that "a reasonable jury could only conclude that Hussein showed up to work unshaven, and that, when his supervisor complained about his beard, he used religion as an excuse." Id.
Like the plaintiff in Hussein who had not grown a beard in his prior 14 years of work, Plaintiff proffers no explanation as to why, after years of working weekends, he only recently needed weekends off for religious purposes. Indeed, Plaintiff has testified that he did not attend religious services on Sunday even when he was off from work and that he was under no religious prohibition against working on Sundays. (Bailey Dep. at 135-36.) Furthermore, it is undisputed that Defendant never required Plaintiff to work on Christmas or any other day of special religious observance. (Bailey Dep. at 141-42; Rosen Aff. ¶ 30, Exs. G, H.) Plaintiff has not come forward with facts from which a rational jury could find that his bona fide religious belief actually conflicts with his obligations to the AP.
Even assuming that an issue of fact exists with respect to the first, or bona fide religious belief, element of the prima facie case, Defendant is entitled to summary judgment because Plaintiff also fails to meet the second criterion necessary to establish a prima facie case of religious discrimination. To satisfy the second criterion, a plaintiff must have put his employer on notice that the religious belief or practice was conflicting with an employment requirement. Elmenaver. 2001 WL 1152815, at *5. There is no evidence in the record that Bailey ever informed the AP during the relevant period that his work schedule conflicted with his religious practices or beliefs. Indeed, at oral argument, Plaintiffs counsel conceded that, while Bailey's conflicts between his religious beliefs and his work schedule were communicated to the Union, there is nothing in the record indicating that the AP received any notice of Plaintiff s request for religious accommodation. (Oral Argument Tr. at 12-13.) Plaintiffs requests for time off, as communicated to the AP, were framed in terms of his belief that he was entitled to it because he "paid [his] dues" with the AP as well as personal issues. (See Rosen Aff., Ex. L.) Defendant cannot be expected to have resolved in Plaintiffs favor a religious conflict of which it was unaware.
Accordingly, the Court grants Defendant's summary judgment motion as to Plaintiffs religious discrimination claim.
Retaliation Claim
Title VII prohibits an employer from retaliating against employees who have complained of unlawful discriminatory practices. 42 U.S.C.A. § 2000e-3(a) (West 1994 Supp. 2003). To establish a prima facie case of retaliation, a plaintiff must show that: (1) he or she was engaged in a protected activity; (2) the employer was aware of the activity; (3) the employee suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action. Richardson v. New York State Dept. of Correctional Serv., 180 F.3d 426, 443 (2d Cir. 1999); Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003). If the plaintiff makes the requisite initial showing, the defendant then must "articulate a `legitimate nondiscriminatory reason' for its actions." Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991) (citation omitted). Once the defendant satisfies its burden by proffering a permissible reason for its actions, "the plaintiff must then show that the reasons advanced were pretextual." Id. The plaintiff must respond by identifying sufficient evidence upon which a reasonable jury could "find the proffered legitimate reason merely a pretext for impermissible retaliation." Richardson, 180 F.3d at 443.
Plaintiff alleges that the AP retaliated against him in three respects for filing a discrimination complaint with the EEOC: (1) by suspending him; (2) by making unfavorable changes in his work schedule; and (3) by refusing to assign Bailey to cover the September 11 terrorist attacks on the World Trade Center and their aftermath.
Plaintiffs proffered evidence is sufficient to satisfy his prima facie case burden as to his retaliation claim. It is undisputed that Plaintiff engaged in a protected activity by filing a complaint with the EEOC on February 8, 2001 and that Defendant was aware of the complaint. The suspension was clearly an adverse employment action. Viewing Plaintiffs allegations in the light most favorable to him, a jury could find that the change in Plaintiffs work schedule from one that was predominantly weekday and daytime to one focused on weekend and evening work was an adverse employment action and that AP's refusal to give Plaintiff assignments involving access to Ground Zero was also an adverse employment action. The temporal proximity between the filing of Plaintiff s EEOC charge and these employment actions is sufficient to support an inference meeting the causal connection prong of the prima facie case.
Defendant has proffered legitimate nondiscriminatory reasons for each of these actions, asserting that Plaintiff was suspended from work because of his performance problems and that Plaintiff had been issued performance warnings prior to Plaintiffs filing of his EEOC charge, that Plaintiffs schedule was consistent with that of the other N.Y. Bureau staffers, and that Plaintiffs extensive knowledge of New York City and its environs justified sending him on farther-flung September 11-related assignments.
Plaintiffs proffered evidence, including the time frame in which these actions occurred, as well as evidence that he was denied access to Ground Zero assignments, is sufficient to raise a jury issue as to pretext. Defendant's summary judgment motion is therefore denied as to Plaintiffs retaliation claim.
III. CONCLUSION
For the foregoing reasons, Defendant's motion for summary judgment is granted as to Plaintiffs discrimination claims. The motion is denied as to Plaintiffs retaliation claim. The parties shall appear for a final pretrial conference on November 14, 2003, at 11:30 a.m. and shall confer and make pre-conference submissions as required by the Pretrial Scheduling Order issued simultaneously herewith.
SO ORDERED.