MATSUMOTO, United States District Judge.
The Equal Opportunity Employment Commission (the "EEOC") brings this action on behalf of a group of former employees ("claimants" or "plaintiffs") of United Health Programs of America Inc. ("UHP") and Cost Containment Group Inc. ("CCG") (collectively, "defendants") who claim principally that they were subjected to religious discrimination in their workplace in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
The facts provided below derive from the parties' Local Rule 56.1 statements, as well as from the deposition testimony and other exhibits attached by the parties in their cross-motions for summary judgment.
Defendants operate a "small wholesale company that provides discount medical plans to groups of individuals" as well as a number of other for-profit and non-profit entities.
Claimants all worked for defendants for different periods of time:
Beginning around 2007, CCG Chief Executive Officer Robert Hodes ("Hodes") and Chief Operations Officer Tracy Bourandas ("Bourandas") determined that their previously effective corporate culture was deteriorating amid a difficult financial period for the company. (Def. 56.1 ¶¶ 37, 79-81.) Hodes and Bourandas hired Hodes's aunt, Denali Jordan ("Jordan" or "Denali"), to provide assistance. (Id. ¶¶ 77-81.) Jordan considered herself a teacher and parent to Hodes, and they maintained a close relationship. She stayed at Hodes's home when working at defendants' office. (Pl. 56.1 ¶ 73.) Before Jordan began working with defendants, she developed a program called Onionhead (Pl. 56.1 ¶ 2),
Defendants describe Onionhead as a multi-purpose conflict resolution tool, while plaintiffs characterize it as a system of religious beliefs and practices. (Compare, e.g., Def. 56.1 ¶ 11 and Tab I, Jordan Dep. at 235, with, e.g., Pl. 56.1 Resp. ¶ 11.) According to defendants, Jordan created Onionhead as a "tool to help children, including those with disabilities, identify, understand, and communicate emotions." (Def. 56.1 ¶ 12.) Although Onionhead was initially targeted toward children, gradually defendants contend that its purpose expanded to assist "people of all ages with addiction, abuse and domestic violence, family issues, marital problems, eldercare, death and dying, the full spectrum of autism and other cognitive disabilities or illnesses (such as Alzheimer's), and to generally develop better problem-solving and communication skills." (Id.) Onionhead practices include the use of "tools," many of which describe a "total of 150 different emotions," including cards, pins, dictionaries, workshop materials, magnets, journals, and a "Declaration of Virtues of Empowerment." (Id. ¶¶ 13, 20(a)-(e).) Onionhead materials often include images of an anthropomorphic Onion. (E.g., Jt. Exs. A-O.)
Beginning around 2011, Jordan merged some of the concepts and principles underlying
Claimants maintain a widely divergent view of Onionhead and Harnessing Happiness. (Pl. 56.1 ¶¶ 1-45.) Claimants contend that Onionhead and Harnessing Happiness are a "system of religious beliefs and practices" with a corresponding "comprehensive system of multiple products and programs." (Pl. 56.1 ¶ 4; Pl. 56.1 Resp. ¶ 11.) Emails in the record regarding Onionhead and Harnessing Happiness, sent between Jordan and other supervisors and employees working for defendants, involve discussions about God, spirituality, demons, Satan, divine destinies, the "Source," purity, blessings, and miracles. (Jt. Exs. 8, 78-81, 89, 117.) In one email from 2011, Hodes groups Onionhead with "higher guidance teachings." (Jt. Ex. 117.) Claimants also emphasize that many of the materials associated with Onionhead and Harnessing Happiness — some of which, however, were not used at defendants' workplace — contain spiritual and religious imagery and iconography. (Pl. 56.1 ¶¶ 1-41.) For example, one Onionhead document is referred to as the Declaration of Virtues for Empowerment. (Jt. Ex. K.) The document contains a list of 12 virtues, and provides: "Because the road to Heaven is paved with the power of what is good in us, we have devised The Declaration of Virtues for Empowerment.... Onionhead's goal is to help transform negative thought forms into positive thought forms, thereby co-creating a new loving, wondrous garden for us all to thrive in." (Id.) Another document, used in office workshops conducted by defendants while the majority of claimants were employed (Def. 56.1 Resp. ¶ 24), is referred to as the Onionhead Keys and Codes to Living Good. (Jt. Ex. M.) The document contains the following examples of religious and spiritual language:
(Id.)
As noted above, Jordan first began working with defendants in 2007. Jordan's
Because claimants were employed at different times, their individual experiences with Onionhead, Harnessing Happiness, and Jordan differed, sometimes significantly. Based on the record, however, certain experiences were allegedly shared by most or all of the claimants. For example, virtually all of the claimants characterize Onionhead-related workshops, prayers, and meetings implemented in the workplace as effectively mandatory (though defendants contend that they were entirely voluntary). (Pl. 56.1 ¶¶ 100, 109-14; Def. 56.1 ¶¶ 49, 51; Pl. 56.1 Resp. ¶ 52.) Claimants also describe being required to attend one-on-one meetings with Jordan (which defendants do not explicitly dispute or counter with admissible evidence). (Pl. 56.1 ¶ 98, Def. 56.1 Resp. ¶ 98.) During both the workshops and the one-on-one meetings with Jordan, claimants describe being requested to share personal information about themselves. (E.g., Pl. 56.1 ¶ 98.) At times, Jordan offered unsolicited advice about their personal lives. For example, two claimants testified that Jordan suggested to them that they leave their husbands. (Id. ¶¶ 181, 251.) Defendants offer no evidence to the contrary but, instead, object that the fact is no material, is based on hearsay, and is self-serving. The court notes that deposition testimony can be sufficient to create genuine disputes of material fact for purposes of summary judgment.
Many claimants also offer evidence (and defendants again offer no contrary evidence) of a number of other workplace
Each claimant contends that she was ultimately terminated by defendants either because she rejected Onionhead beliefs or because of her own non-Onionhead religious beliefs. Claimants further offer uncontroverted evidence that certain other employees who participated in Onionhead activities or adhered to Onionhead beliefs were given progressive discipline when they erred instead of being terminated. (Pl. 56.1 ¶¶ 379-91.) Although defendants concede that a number of the claimants were terminated (Def. Mem. at 36 n.27), they contend that others voluntarily resigned. Defendants further contend that none of the claimants were qualified for their positions at the time of their terminations, and that any terminations (or other adverse employment actions) were imposed for legitimate, nondiscriminatory reasons.
The individual circumstances of each claimant will be discussed below as relevant to their particular claims.
On June 7, 2011 Ontaneda and Pennisi filed charges of discrimination and retaliation against defendants with the EEOC. (Jt. Exs. 61-62.) On July 27, 2012, Pabon also filed a charge against defendants with the EEOC. (Jt. Ex. 63.) On March 13, 2014, the EEOC issued a letter of determination stating that Ontaneda, Pabon, and Pennisi — along with a "class of additional claimants," whose names were not specified — had been discriminated against on the basis of religion, and attached a proposed conciliation agreement. (Jt. Ex. 64.) The following month, on April 22, 2014, the EEOC sent a letter to defendants indicating that conciliation efforts had been unsuccessful and that further efforts to conciliate would be futile. (Jt. Ex. 65.)
Actions for violations of Title VII can be brought either by aggrieved individuals or by the EEOC. Here, the EEOC brought this enforcement action on June 11, 2014, under 42 U.S.C. § 2000e-5(f). Aggrieved individuals have the "right to intervene in a civil action brought by the [EEOC]." 42 U.S.C. § 2000e-5(f)(1). On July 2, 2014, the court granted, on consent, Ontaneda, Pennisi, and Pabon's motions to intervene in the instant action. (July 2, 2014 Docket Entry; ECF Nos. 4, 7.) On October 9, 2014, the EEOC filed the operative amended complaint. (Jt. Ex. 67.) The EEOC identified Benedict, Diaz, Honohan, Josey, Maldari, and Pegullo as claimants on January 12, 2015. (Def. 56.1 ¶ 316.) The EEOC identified Safara as a claimant on February 28, 2015. (Id.)
Summary judgment is appropriate "only where there is no genuine issue of material fact to be tried, and the facts as to which there is no such issue warrant the entry of judgment for the moving party as a matter of law." Kaytor v. Electric Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010) (citing Fed. R. Civ. P. 56). A dispute of material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,
As relevant here, Title VII prohibits employers from discriminating against employees on the basis of religion. 42 U.S.C. § 2000e-2(a)(1) ("It shall be an unlawful employment practice for an employer... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... religion...."). "Title VII has been interpreted to protect against requirements of religious conformity and as such protects those who refuse to hold, as well as those who hold, specific religious beliefs." Lampros v. Banco do Brasil, S.A., No. 10-CV-9576, 2012 WL 6021091, at *6 n.3 (S.D.N.Y. Dec. 4, 2012) (quoting Shapolia v. Los Alamos Nat'l Lab., 992 F.2d 1033, 1036 (10th Cir. 1993)), aff'd, 538 Fed.Appx. 113 (2d Cir. 2013). Title VII also prohibits employers from retaliating against employees for engaging in protected activity. See 42 U.S.C. § 2000e-3(a) ("It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter....").
Claimants here assert claims under a variety of Title VII theories including disparate treatment, hostile work environment, failure to accommodate, and retaliation. There are effectively two groups of claims. The first group of claims is premised on reverse religious discrimination: that defendants subjected claimants to discrimination by imposing religious practices and beliefs on claimants. The second group of claims fall within the more traditional religious discrimination and retaliation rubric: claimants assert that they were discriminated against and retaliated against on the basis of their own religious beliefs. Claims falling in the first group, the reverse religious discrimination claims, can be broken down as follows:
Claims falling in the second group, the more straightforward religious discrimination and retaliation claims, are as follows:
In resolving the parties' respective motions, the court first addresses claimants' partial motion for summary judgment, which requires resolving the issue of whether Onionhead/Harnessing Happiness constitutes a religion for purposes of Title VII. The court subsequently addresses defendants' motion for summary judgment, which requires an analysis of each of the six aforementioned theories of Title VII liability asserted in this action.
As noted earlier, Title VII prohibits employers from discriminating on the basis of religion. 42 U.S.C. § 2000e-2(a)(1). Aside from protecting employees from discrimination on the basis of their religion, Title VII also protects employees from discrimination because they do not share their employer's religious beliefs. See Mandell v. Cty. of Suffolk, 316 F.3d 368, 378 (2d Cir. 2003) ("An employer discriminating against any non-Catholic violates the anti-discrimination laws no less than an employer discriminating only against one discrete group...."). A religious discrimination claim premised on an employer's preference for a particular religious group is often referred to as a "reverse religious discrimination" claim. See Noyes, 488 F.3d at 1168-1169; Shapolia, 992 F.2d at 1038. Claimants here bring both conventional religious discrimination claims (contending that they were discriminated against because of their religious beliefs) as well as reverse discrimination claims (contending that they were discriminated against because CCG discriminated against employees who objected to or failed to adhere to Onionhead practices and beliefs, and treated differently employees who did share and adhere to Onionhead practices and beliefs).
In most cases where reverse religious discrimination claims are asserted, the employer's religious beliefs are fairly easy to ascertain. In Shapolia, for example, the plaintiff, a non-Mormon, alleged that a Mormon supervisor gave him a negative evaluation, which contributed to his eventual termination, because he did not share the supervisor's religious beliefs. See 992 F.2d at 1035, 1037; see also Noyes, 488 F.3d at 1165 ("[Plaintiff] alleges that a supervisory employee at her former employer, Kelly Services, Inc., was a member of a small religious group, the Fellowship of Friends, and that he repeatedly favored and promoted other Fellowship members."). Here, however, defendant contends that Onionhead is not a religion. (Def. Mem. at 3-9.) Accordingly, before evaluating plaintiffs' claims premised on reverse religious discrimination, the court must determine whether Onionhead is a religion for purposes of Title VII.
"The determination of what is a `religious' belief or practice is more often than not a difficult and delicate task." Thomas v. Review Bd. of Ind. Emp't Sec. Div., 450 U.S. 707, 714, 101 S.Ct. 1425, 67
The court begins with the text of Title VII. Title VII provides that the "term `religion' includes all aspects of religious observance and practice." 42 U.S.C. § 2000e(j). EEOC guidelines further define
29 C.F.R. § 1605.1. The EEOC adopted its expansive definition of religion based on two Supreme Court decisions, United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965) and Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970), which defined religion broadly for purposes of addressing conscientious-objector provisions to the selective service law.
Delineating the meaning of "religion" for purposes of Title VII often requires resort to First Amendment
In Philbrook v. Ansonia Bd. of Educ., 757 F.2d 476 (2d Cir. 1985), aff'd and remanded, 479 U.S. 60, 107 S.Ct. 367, 93 L.Ed.2d 305 (1986), the Second Circuit explicitly considered First Amendment principles in evaluating whether the plaintiff, a member of the Worldwide Church of God, could establish a prima facie case of religious discrimination against his employer under Title VII. See id. at 481-82 ("We see no reason for not regarding the standard for sincerity under Title VII as that used in free exercise cases."); Eatman v. United Parcel Serv., 194 F.Supp.2d 256, 268 (S.D.N.Y. 2002) ("A court's limited role in determining whether a belief is `religious' is the same under Title VII as it is under the Free Exercise Clause of the First Amendment.").
To determine whether a given set of beliefs constitutes a religion for purposes of either the First Amendment or Title VII, courts frequently evaluate: (1) whether the beliefs are sincerely held and (2) "`whether they are, in [the believer's] own scheme of things, religious.'" Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984) (quoting Seeger, 380 U.S. at 185, 85 S.Ct. 850); see also Jackson v. Mann, 196 F.3d 316, 320 (2d Cir. 1999) ("[T]he inquiry is whether the beliefs professed by a [claimant] are sincerely held and whether they are, in his own scheme of things, religious." (internal quotation marks and citation omitted)); Eatman, 194 F.Supp.2d at 268 (same, in Title VII context).
Evaluating the first factor, sincerity — particularly when the belief system is non-traditional — is inherently fact-intensive. See Patrick, 745 F.2d at 157 ("Sincerity analysis is exceedingly amorphous, requiring the factfinder to delve into the claimant's most veiled motivations and vigilantly separate the issue of sincerity from the factfinder's perception of the religious nature of the claimant's beliefs. This need to dissever is most acute where unorthodox beliefs are implicated."); Jackson,
That an individual or entity purportedly holding the beliefs rejects the characterization of the beliefs as religious is not dispositive. In Warner v. Orange Cty. Dep't of Prob., 115 F.3d 1068, 1075 (2d Cir. 1996), for example, the Second Circuit found an Alcoholics Anonymous program that a convict was required to attend as a condition of his probation was religious in nature, over the objection of prison officials who characterized the program as therapeutic rather than religious. In Malnak v. Yogi, 592 F.2d 197, 214 (3d Cir. 1979), the court determined that a public school's offering of a course called the Science of Creative Intelligence Transcendental Meditation violated the Establishment Clause of the First Amendment over the objection of the school that the course was secular in nature.
In analyzing the second factor — whether a set of beliefs are, in the believer's "own scheme of things, religious," Seeger, 380 U.S. at 185, 85 S.Ct. 850 — courts look to whether the belief system involves "ultimate concern[s]." Int'l Soc. For Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 440 (2d Cir. 1981); Sherr, 672 F.Supp. at 92 ("The Supreme Court and Second Circuit have each declared religion to involve the `ultimate concerns' of individuals...."). "A concern is ultimate when it is more than intellectual." Barber, 650 F.2d at 440 (internal quotation marks and citation omitted). "A concern is more than intellectual when a believer would categorically disregard elementary self-interest in preference to transgressing its tenets." Id. (internal quotation marks and citation omitted). Moreover, "religious beliefs need not be acceptable, logical, consistent, or comprehensible to others." Thomas, 450 U.S. at 714, 101 S.Ct. 1425. "A religious belief can appear to every other member of the human race preposterous," yet still be entitled to protection. Stevens v. Berger, 428 F.Supp. 896, 899 (E.D.N.Y. 1977); see also United States v. Ballard, 322 U.S. 78, 87, 64 S.Ct. 882, 88 S.Ct. 1148 (1944) ("The religious views espoused by [the criminal defendants] might seem incredible, if not preposterous, to most people. But ... those doctrines are [not] subject to trial....").
Id. at 1032. The Second Circuit, however, has rejected the "narrow definition of `religious belief' promulgated by the Third Circuit." Patrick, 745 F.2d at 156 (reversing grant of summary judgment where district court had relied on Africa, and holding that a more "expansive conception of religious belief" applied).
As the legal principles outlined above make plain, an "expansive conception of religious belief" is appropriate, at least in this circuit. Patrick, 745 F.2d at 158; United States v. Allen, 760 F.2d 447, 449-50 (2d Cir. 1985) (recognizing that in "recent years, the concept of religion has certainly broadened" and explaining that courts apply an "expansive definition of religion"). In accordance with the generous parameters defining religion, courts regularly determine that non-traditional beliefs can qualify as religions. In Warner, the Second Circuit found that the twelve-step Alcoholics Anonymous program had "a substantial religious component" because: (1) participants were told to pray to God; (2) meetings opened and closed with prayer; and (3) the program placed a "heavy emphasis on spirituality and prayer, in both conception and in practice." 115 F.3d at 1075. In Patrick, the Second Circuit reversed a grant of grant summary judgment to a prison that prohibited a prisoner from practicing his professed religion, referred to as the Five Percenter faith. See 745 F.2d at 160. The prisoner described the Five Percenter faith as devoted to "spiritual enlightenment" through study of "the Bible, Elijah Mohammed's Body of Lessons and Plus Lessons, and the Egyptian Book of the Dead." Id. at 155. Five Percenters also "conceiv[ed] of [their] ideals by reference to the realm of mathematics." Id. Although Five Percenters worshipped Allah, the faith was "marked by
Lower courts in this circuit have faithfully adhered to the Second Circuit's expansive definition of religion, including in the First Amendment context. In Berger, 428 F.Supp. at 896, a husband and wife seeking welfare benefits on behalf of their four minor children refused to comply with a state law regulation followed by the Suffolk County Department of Social Services requiring that they provide a copy of their children's social security cards. Id. at 897. They explained that "the use of social security numbers was a device of the Antichrist, and that they feared the[ir] children, if numbered in this way, might be barred from entering Heaven." Id. The court concluded, after a detailed analysis of the complex biblical history and literature that the plaintiffs marshalled to support their views, that the plaintiffs' "belief must be characterized as religious for purposes of this case." Id. at 902-905. The court's holding was grounded in the principles of religious freedom and tolerance discussed earlier:
Id. at 900.
In Sherr, 672 F.Supp. at 81, the plaintiffs, two couples, refused to consent to inoculation of their children, which was mandatory for the children to attend school. Id. at 83-84. According to one of the family's complaints, their beliefs required all persons to "live in harmony with the mutual world and its order." Id. at 92. The complaint provided that "[a]ll things are part of one intimate universe, or whole." Id. Testifying about his beliefs, one parent explained that he viewed "God as being pervasive everywhere" and "saw [him]self as God in expression or life in expression." Id. at 93. "Immunization in my eyes," the plaintiff testified, "in the framework of my religious beliefs and in my wife's, I might add, interferes with the health of the organism." Id. Emphasizing that the plaintiffs' beliefs were "replete with references to `God'" and that the plaintiffs' very willingness to engage in a protracted legal battle reflected that their beliefs were "rooted in matters of `ultimate concern,'" the court held that the plaintiffs' views could fairly be "classified as religious." Id. at 93.
Courts outside this circuit, too, have applied a definition of religion consistent with the views adopted in the cases outlined above. See, e.g., Malnak, 592 F.2d at 198-99 (Third Circuit holding that Transcendental Meditation class involving mantras and chanting was "religious in nature"); Toronka v. Cont'l Airlines, Inc., 649 F.Supp.2d 608, 612 (S.D. Tex. 2009) (finding religious a plaintiff's "belief in the power of dreams," which he characterized as "a moral and ethical belief" rooted in the "traditional religious convictions of his African origin").
With the abovementioned principles in mind, the court concludes that Onionhead qualifies as a religion for purposes of Title VII. First, as to sincerity, there is a genuine factual dispute regarding the sincerity of defendants' beliefs that is underscored by the difficulty here of ascribing religiosity to beliefs argued by their purported adherents to be secular. Moreover, the court finds disputed factual issues regarding whether the defendants' actions of bringing Jordan and the Onionhead/Harnessing Happiness beliefs, practices and materials into defendants' workplace establishes that the defendants sincerely believed in Jordan's teachings. See Patrick, 745 F.2d at 159 ("This Court has consistently held where subjective issues regarding a litigant's state of mind, motive, sincerity or conscience are squarely implicated, summary judgment would appear to be inappropriate and a trial indispensable...." (collecting cases)). Second, as to whether the beliefs are religious, the court finds as a matter of law that they are. See Barber, 650 F.2d at 440 ("We think it is clear that Krishna Consciousness is a `religion'....").
Defendants argue that "there is no evidence that anyone associated with this matter sincerely held beliefs" related to Onionhead. (Def. Mem. at 8.) The undisputed, documentary evidence alone, however, is at least sufficient for a trier of fact to find that Jordan and Hodes held sincere beliefs regarding Onionhead/Harnessing Happiness. For example:
A reasonable jury could find that by inviting Jordan into the workplace, paying her to meet and conduct workshops, authorizing her to speak to employees about matters related to their personal lives, disseminating Onionhead/Harnessing Happiness material and directing employees to attend group and individual meetings with Jordan, Hodes and his upper management held sincere beliefs in Onionhead and Harnessing Happiness. Although defendants are correct that Jordan, in an affidavit, stated that she does not believe and never has believed in Onionhead as a religion (Jt. Ex. 2, ¶¶ 17, 19, 30), undisputed documentary evidence conflicts with her statement and indicates that a reasonable jury could find otherwise. To the extent that establishing
Turning to the more difficult question about whether the nature of the beliefs qualifies as religious, the court concludes that the beliefs are religious within the meaning of Title VII.
Here, as an initial matter, the above-described emails reflect references — in the specific context of discussions about Onionhead — to God, spirituality, demons, Satan, divine destinies, miracles, "higher guidance teachings," and a grail. (Jt. Exs. 8, 78-81, 89, 117.) Jordan herself stated that she had been referred to as a "spiritual advisor" for some time while working for defendants (though she disliked the term). (Tab B, Benedict Dep. at 85; Tab M, Maldari Dep. at 62-63, 103; Tab Q, Pennisi Dep. at 59-63; Tab R, Safara Dep. at 52; Jt. Ex. 97 (email from Jordan stating that "I was called a spiritual advisor").)
Additional documentary evidence lends further support to the conclusion that Onionhead is a religion. The Onionhead Dictionary of 150 Emotions: Teen and Adult Edition (Jt. Ex. G) — which was, defendants concede, used in workshops at CCG while Honohan, Pegullo, Pabon, Josey, Diaz, and Benedict were employed (Pl. 56.1 at ¶ 20; Def. 56.1 Resp. at ¶ 20) — contains references to divinity, spirituality, souls, and heaven. The dictionary contains, inter alia, the following statements:
(Jt. Ex. G.)
Another Onionhead document is referred to as the Declaration of Virtues for Empowerment, though it is not clear whether this document was available in the workplace. (Jt. Ex. K.) The document lists 12 virtues, and an acrostic formed from the first letters of each of the virtues spells out "Garden of Eden." (Id.) The document provides: "Because the road to Heaven is paved with the power of what is good in us, we have devised The Declaration of Virtues for Empowerment.... Onionhead's goal is to help transform negative thought forms into positive thought forms, thereby co-creating a new loving, wondrous garden for us all to thrive in." (Id.) The document also contains the following statements:
(Id.) A similar document, called The 13 Codes of Caring for Teens and Adults,
A further document, referred to as the Onionhead Keys and Codes to Living Good — which defendants appear to concede was used in workshops while Honohan, Pegullo, Pabon, Josey, Diaz, and Benedict were employed (Pl. 56.1 at ¶ 41; Def. 56.1 Resp. at ¶ 41) — contains, but is not limited to, the following religious and spiritual language:
(Jt. Ex. M.)
Testimonial evidence from claimants further underscores the religiosity of Onionhead and Harnessing Happiness. Claimants describe Jordan and others repeatedly referencing God and other spiritual matters in the workplace, often in a manner directly connected to Onionhead. Maldari testified that Jordan, referring to CCG employees, stated that "God loves us all" and spoke about "demons and angels." (Tab M, Maldari Dep. at 68, 71-72, 85, 102, 160.) Maldari also testified that she and other employees "were told [by Hodes] that we were chosen." (Id. at 73-74.) Safara testified that Jordan sent emails including spiritual texts that she felt compelled to read. (Tab R, Safara Dep. at 66.) Pennisi testified that Onionhead "makes you believe in things religiously that you may not have believed in before.... [I]t made you question maybe something that you thought all your life was how it was supposed to be when you were in religious class or things like that." (Tab Q, Pennisi Dep. at 118.) Pennisi also testified that she believed Onionhead was "the way of [Jordan's] life." (Id. at 192 ("[Jordan's] way of explaining Onionhead was always some sort of religious experience...."); see also id. at 193 (explaining that Jordan described Onionhead as "here to help everybody, you know, connect, whether it be emotionally or within feelings or spiritually, religiously, it was set to be under one — one thing.").) Diaz described Harnessing Happiness content as involving references to angels. (See Tab E, Diaz Dep. at 80.)
Many of the claimants also described being told to pray in the workplace. (E.g., Tab M, Maldari Dep. at 67, 79-80, 103-07; Tab B, Benedict Dep. at 157-559 (describing prayers being read from a set of cards referred to as Universal Truth Cards); Tab R, Safara Dep. at 60-61 ("[Jordan] would just sit there and we would have to sit there and hold hands and close our eyes and she'd like chant and she would just, you know, pray to these spirits, whoever they were, to keep us safe....").)
As discussed earlier, defendants rely on a narrower definition of religion than the definition adopted by the Second Circuit. See Patrick, 745 F.2d at 156 & n.4, 158 (describing and disagreeing with the "narrow definition of `religious belief' promulgated by the Third Circuit" and emphasizing the Second Circuit's adoption of an "expansive conception of religious belief"). Their contention that Onionhead was merely a "conflict resolution tool" (Def. Reply at 3) is belied by the ample documentary and testimonial evidence detailed above. Accordingly, the court concludes that Onionhead is a religion for purposes of Title VII.
Having concluded that Onionhead is a religion, the court turns next to the individual claims asserted by claimants. Before analyzing the merits of the claims, however, the court must first resolve a dispute regarding whether certain claimants are entitled to participate in this action.
Defendants contend that the EEOC failed to fulfill certain administrative requirements with respect to Benedict, Josey, and Safara. (Def. Mem. 1-3.)
Before filing an action under Title VII, the EEOC must comply with a set of administrative obligations prescribed by statute. The EEOC must, before filing:
EEOC v. Sterling Jewelers Inc., 801 F.3d 96, 100 (2d Cir. 2015) (citing 42 U.S.C. § 2000e-5(b)). In Mach Mining, LLC v. EEOC, ___ U.S. ___, 135 S.Ct. 1645, 1656, 191 L.Ed.2d 607 (2015), the Supreme Court held that federal courts are permitted to review whether the EEOC has complied with its pre-suit administrative obligations. In Mach Mining, an employer argued that the EEOC had failed to conciliate in good faith before filing suit. Id. at 1650-53. The parties disputed whether courts were permitted to review the
More recently, in Sterling Jewelers, 801 F.3d at 99, the Second Circuit extended the holding of Mach Mining, which addressed only conciliation, to cover the EEOC's investigative efforts. In Sterling Jewelers, the Second Circuit addressed an employer's argument that the EEOC's pre-suit investigation of discrimination allegations had been insufficient. Id. at 100. The court held that the "sole question for judicial review is whether the EEOC conducted an investigation." Id. at 101. "[C]ourts may not review the sufficiency of an investigation — only whether an investigation occurred." Id.
Defendants argue that the EEOC failed to comply with steps three (investigation), four (reasonable cause determination), and five (conciliation) with regard to Benedict, Josey, and Safara before filing suit. (Def. Mem. at 1-3; Def. Reply at 18-20.) It is undisputed that the EEOC did not speak with Benedict, Josey, or Safara during the course of the investigation. (Def. 56.1 at ¶¶ 316-17.) The EEOC first sent letters to Benedict, Josey, and Safara notifying them of the lawsuit and asking whether they were interested in participating in December 2014 and January 2015, months after this action was filed in June 2014. (ECF No. 1; Jt. Exs. 70-72.)
The EEOC argues that it investigated religious discrimination and retaliation against a class of employees at CCG's single facility in 2007, and that the class identified in the investigation encompassed all current claimants, including Benedict, Josey, and Safara. (Pl. Mem. at 39-40.) Citing Mach Mining LLC, 135 S.Ct. at 1652, 1655-56, the EEOC asserts that it complied with its "minimal" obligations that it "tell the employer about the claim - essentially, what practice has harmed which person or class - and must provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance." (Id. at 39.) The EEOC further contends that its pre-suit investigation of class allegations did not require that it interview each member of that class during the investigation so long as the members of the claimant class fall within the contours of the scope of the allegations in the suit. Id. (citing Sterling Jewelers, 801 F.3d at 102 n.2, 103-04). The EEOC thus asserts it can file suit on behalf of anyone "encompassed by the scope of the claims identified in the investigation, including individuals interviewed later." (Id. at 40 (citations omitted).) Effectively, the EEOC argues that it is permissible to identify new claimants after filing a Section 706 action so long as the new claimants' allegations are reasonably related to the allegations of the already-identified claimants, while defendants contend that the five-step administrative process must be followed with respect to each claimant in an action under Section 706.
The court concludes that, at least under the circumstances present in the instant case, the EEOC was not precluded from identifying new claimants (whose claims were effectively identical to the claims of the pre-existing claimants) after filing this action. Courts have permitted the EEOC to add new claimants identified
Defendants have cited no binding authority requiring dismissal of claimants first identified after the EEOC files a Section 706 action. Defendants rely heavily on EEOC v. CRST Van Expedited Inc., 679 F.3d 657, 674 (8th Cir. 2012). In CRST, the EEOC filed a Section 706 action on behalf of a single named individual. Id. The EEOC waited two years after filing suit to name 67 additional allegedly aggrieved persons, whose allegations the EEOC admitted it had not investigated until after the complaint was filed. Id. at 669, 673. For years after the complaint was filed, the employer-defendant did not know if the "Section 706 lawsuit involved two, twenty or two thousand allegedly aggrieved persons." Id. at 669 (internal quotation marks and citation omitted). The district court held, inter alia, that under the circumstances, dismissal of the complaint as to the 67 individuals was appropriate. Id. at 677. Reviewing the dismissal for abuse of discretion, the Eight Circuit affirmed. Id. The court held that the EEOC failed to adequately investigate because "the EEOC did not investigate the specific allegations of any of the 67 allegedly aggrieved persons ... until after the Complaint" was filed. Id. at 675-76 (emphasis in original) (internal quotation marks and citation omitted).
The EEOC's attempt in CRST to add 67 claimants to an EEOC action filed two years earlier and naming a single individual is a far cry from the situation presented in this action, where the EEOC's investigation undisputedly encompassed seven of the ten claimants and the additional three claimants' allegations arise out of the same alleged course of conduct, in the same office, by the same individuals, and during a time period already covered by the charges in the initial complaint.
The court next considers the merits of the defendants' motion for summary judgment. First, the court addresses the reverse religious discrimination claims. Second, the court addresses the conventional religion-based discrimination and retaliation claims.
Claimants Benedict, Diaz, Honohan, Josey, Ontaneda, Pennisi, Pabon, and Pegullo bring reverse religious discrimination claims based on disparate treatment and a hostile work environment.
Should the employer meet its burden, "the inquiry then returns to the plaintiff, to demonstrate that the proffered reason is a pretext for discrimination." United States v. City of New York, 717 F.3d 72, 102 (2d Cir. 2013). Defeating summary judgment requires only that a plaintiff present evidence from which a reasonable jury could find "that the defendant was in fact motivated at least in part by the prohibited discriminatory animus." Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 156 (2d Cir. 2010); see also Univ. of Texas Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct. 2517, 2522-23, 186 L.Ed.2d 503 (2013) ("An employee who alleges status-based discrimination under Title VII ... [must] show that the motive to discriminate was one of the employer's motives, even if the employer also had other, lawful motives that were causative in the employer's decision.").
The parties agree that a modified version of the framework established in
In establishing qualification for a position, claimants must show that they were qualified for their positions at the time their employment ended. See Kovaco v. Rockbestos-Surprenant Cable Corp., 834 F.3d 128, 136-37 (2d Cir. 2016). A claimant may "satisfy this burden by showing that she possesses the basic skills necessary for performance of the job." Id. (internal quotation marks and citation omitted). "Therefore, especially where discharge is at issue and the employer has already hired the employee, the inference of minimal qualification is not difficult to draw." Id. (internal quotation marks and citation omitted); Gregory v. Daly, 243 F.3d 687, 696 (2d Cir. 2001), as amended (Apr. 20, 2001) ("[B]y hiring the employee, the employer itself has already expressed a belief that she is minimally qualified.").
Defendants argue that claimants were required to be "satisfactorily performing their jobs at the time of their terminations." (Def. Reply at 7-8 (emphasis added).) The Second Circuit has explicitly distinguished between establishing performance that is satisfactory to the employer (which is not required for a prima facie showing) and establishing qualification for purposes of Title VII. See Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir. 2001), as amended (June 6, 2001) ("[A]ll that is required is that the plaintiff establish basic eligibility for the position at issue, and not the greater showing that he satisfies the employer."). Accordingly, to the extent defendants argue that claimants must have been performing in a manner that satisfied them, they are incorrect as a matter of law.
Here, defendants contend that none of the claimants were qualified. The court disagrees, and finds, based on evidence in the record that the claimants were hired by and worked for defendants, that a reasonable jury could find that each claimant was qualified. Jordan stated that Benedict "did a good job" on the "jobs that [she] did commit to"; "[i]t was more what she wasn't available for that created the challenges." (Tab I, Jordan Dep. at 109.) Honohan worked for defendants for over 20 years. (Def. 56.1 at ¶ 157.) In 2007, Honohan received a performance review that rated her exceptional (the highest level possible) in nearly all of the 20 different areas evaluated. (Jt. Ex. 112.) Although defendants claim that Josey caused billing errors (Def. Mem. at 12), Josey contends that supervisor April Levine — who terminated Josey — refused to show Josey evidence of the errors. (Pl. 56.1 Resp. ¶ 189.) Genuine issues of material fact preclude a determination at this stage of the litigation that Josey was not qualified.
Claimants must next establish that they suffered an adverse employment action. An adverse employment action is defined as a "materially adverse change in the terms and conditions of employment." Sanders v. N.Y.C. Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004) (internal quotations omitted). "Examples of materially adverse changes include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation." Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (internal quotation marks and citation omitted). A mere inconvenience or alteration of job responsibilities does not constitute an adverse employment action. See Sanders, 361 F.3d at 755.
Defendants concede that Diaz, Honohan, Josey, Pegullo, and Pennisi were terminated (Def. Mem. at 36 n.27), which constitutes an adverse employment action. See Terry, 336 F.3d at 138. Defendants contend, however, that Benedict, Ontaneda, and Pabon were not subjected to an adverse employment action. (Def. Mem. at 9-11.) First, the circumstances of Benedict's departure from defendants' employment raise a genuine issue of material fact as to whether she was subjected to an adverse employment action. The parties dispute whether Benedict was terminated or whether she quit. Benedict, who worked for defendants from September 2011 until March 2012, contends that CCG initially permitted her to work from her home in New Jersey for three weeks per month. (Tab B, Benedict Dep. at 72.) Jordan transferred Benedict from working for defendants to working for Onionhead while Benedict was employed by defendants, and her job included "evangelizing and marketing" Onionhead. (Pl. 56.1 ¶¶ 153-54.) According to Benedict, Jordan received a message from the universe or from God that Benedict needed to move her family to Long Island. (Tab B, Benedict Dep. at 163.) Benedict claims that Jordan told Benedict that she should allow Jordan and Hodes to be her family and that Hodes was the father of Benedict's daughter. (Id. at 38, 127, 162-63.) Defendants dispute Benedict's stated reasons for refusing to move to Long Island. After Benedict refused to move to Long Island, which defendants contend was a job requirement all along (Def. 56.1 ¶ 111), supervisor Lane Michel and Jordan told her that she was being terminated. (Tab B, Benedict Dep. at 121.) Under the circumstances, a reasonable jury could find that Jordan was subjected to an adverse employment action by being terminated. See Fornah v. Cargo Airport Servs., LLC, No. 12-CV-3638, 2014 WL 25570, at *12 (E.D.N.Y. Jan. 2, 2014) ("There are copious factual disputes surrounding the discontinuance of Plaintiff's employment with Defendant. Plaintiff claims that she was terminated ... on the
Second, Ontaneda claims that Hodes expelled her from a private office where she had been working as an account manager and sent her to "the pit," a large open square area with cubicles in the center of the office. (Tab N, Ontaneda Dep. at 225; Pl. 56.1 ¶ 272.) In the "pit," Ontaneda testified that she was told to work alongside customer service representatives and take customer service calls, for which she lacked training. (Pl. 56.1 ¶¶ 56, 271-72.) A reasonable jury could find that the transfer was an adverse employment action. See Dillon v. Morano, 497 F.3d 247, 254-55 (2d Cir. 2007) ("[T]ransfer from an `elite' unit to a `less prestigious' unit could constitute adverse employment action...."). The circumstances of the end of Ontaneda's employment also present a genuine dispute of material fact as to whether she was terminated or whether she resigned.
Finally, in response to Pabon's application for unemployment insurance, CCG informed the Department of Labor that they terminated Pabon. (Jt. Ex. 115 (defendants checked "misconduct discharge" box as the "reason for separation" on an unemployment form for Pabon, and left the "voluntarily quit" box blank).) A reasonable jury could disagree with defendants' present view that "Pabon ... resigned or otherwise abandoned [her] employment." (Def. Mem. at 10.)
Each plaintiff has made a prima facie showing that she suffered, or that a reasonable jury could find that she suffered, an adverse employment action.
The final element of claimants' prima facie case, an inference of discrimination, is a "flexible one that can be satisfied differently in differing factual scenarios." Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996). The inference can be taken from circumstances including the employer's criticism of the plaintiff's performance in religiously degrading terms, more favorable treatment to employees subscribing to the religious beliefs of the employer, or the "sequence of events leading to the plaintiff's [adverse employment action]." Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001) (internal quotation marks and citation omitted).
Viewing the evidence in the light most favorable to claimants, a reasonable jury could find that the purported adverse actions were motivated, at least in part, by religious discrimination. Plaintiffs assert the following facts:
Because plaintiffs have presented sufficient evidence to establish a prima facie case of reverse religious discrimination, the burden shifts to defendants to articulate a legitimate, non-discriminatory reasons for the employment actions. "The defendant's burden is not a particularly steep hurdle." St. Juste v. Metro Plus Health Plan, 8 F.Supp.3d 287, 304 (E.D.N.Y. 2014) (internal quotation marks and citation omitted).
In their memorandum, defendants offer deposition testimony that:
(Def. Mem. at 11-12.) The court finds, even in light of the low threshold for articulating a legitimate, non-discriminatory explanation for an employment action, that there are disputed issues of material fact as to the reasons for claimants' terminations.
Although the parties have proffered conflicting evidence as to whether the defendants had legitimate nondiscriminatory reasons for their employment actions, the court will examine evidence regarding pretext. "To avoid summary judgment at this stage, [a] plaintiff must offer evidence from which a reasonable jury could conclude by a preponderance of the evidence that religious discrimination played a role in the adverse actions taken against plaintiff." St. Juste, 8 F.Supp.3d at 313; see also Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013) (in Title VII retaliation context, where higher but-for causation requirement applies, mentioning that plaintiffs may prove causation by "demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate, nonretaliatory reasons for its action"). Claimants' proffer of evidence regarding pretext, however, is sufficient for a reasonable jury to find that religious discrimination played a role in the purported adverse employment actions they suffered:
The court must examine the totality of the record and cannot isolate each piece of evidence. See Friedman v. Swiss Re Am. Holding Corp., 643 Fed.Appx. 69, 72 (2d Cir. 2016) (finding that district court failed to consider "the record as a whole, just as a jury would, to determine whether a jury could reasonably find an invidious discriminatory purpose on the part of an employer," and instead "viewed each piece of evidence in isolation" (internal quotation marks and citation omitted)). Considering the unique circumstances of this case together with the claimants' individual prima facie cases as well as their evidence of pretext, a reasonable jury could find that defendants' proffered reasons were pretextual.
Defendants contend that Jordan was not directly involved in many of the claimants' terminations. Sattar v. Motorola, Inc., 138 F.3d 1164, 1171 (7th Cir. 1998), on which defendants rely to establish that Jordan's lack of direct involvement in their terminations precludes liability (Def. Mem. at 13, 18, 23), instead supports claimants. In Sattar, the court held that the plaintiff's purported harasser was not directly linked to his discharge, which was effectuated by two other individuals. Id. at 1171. The court ultimately granted summary judgment to the employer. Id. The court's explanation for its holding, however, is significant here. The court explained that the plaintiff had failed to establish a link between her harasser and her discharge because "[n]othing indicates [the individuals involved in the plaintiff's termination] harbored any animus toward [the plaintiff]," that the harasser "was some kind of Svengali controlling their actions" or that the harasser "infected" the decision to terminate the plaintiff Id.
In essence, claimants here assert the precise type of direct or indirect involvement by Jordan in employment decisionmaking that the Sattar court held might be sufficient to link a harasser's conduct to
(Jt. Ex. 47.) Further, Benedict testified that Jordan was, at least for a time, her "boss," and that Jordan appeared in a conference room to discuss her termination. (Tab B, Benedict Dep. at 121, 126.) Defendants also placed Jordan just below Hodes (and next to Bourandas) on a corporate hierarchy chart. (Jt. Ex. 90.) Defendants brought Jordan into the office to conduct group and individual meetings, for which employees were directed to sign up. Defendants also received and acted upon Jordan's personnel recommendations. A reasonable jury could find that Jordan exercised a sufficient degree of control over employment decisionmaking (including hiring, discipline, and termination) to justify imputing her motives to defendants. See Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267, 272 (2d Cir. 2016) (applying "cat's paw" theory of liability — in which an employee is fired or subjected to adverse action by a supervisor who has no discriminatory motive, but "who has been manipulated by a subordinate who does have such a motive and intended to bring about the adverse employment action" — in Title VII retaliation context). Accordingly, defendant's motion for summary judgment on the claimants' reverse religious discrimination disparate treatment claim is denied.
Title VII bars employers from requiring employees to work in a hostile or abuse environment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).
Defendants argue that hostile work environment claims asserted by Maldari, Ontaneda, Pennisi, and Safara are timebarred. (Def. Mem. at 26.) Plaintiffs counter that claims asserted by Maldari, Ontaneda, Pennisi, and Safara are timely under the continuing violation doctrine. (Pl. Mem. at 27-28.)
Generally, and as relevant here, an individual must file a charge with the EEOC within 300 days of an alleged unlawful employment practice. Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994). An exception exists, however, where a defendant has allegedly engaged in a continuous policy of discrimination. "Under the continuing violation exception to the Title VII limitations period, if a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone." Chin v. Port Auth. of New York & New Jersey, 685 F.3d 135, 155-56 (2d Cir. 2012) (emphasis added) (internal quotation
The earliest charges in this action were filed by Ontaneda and Pennisi on June 7, 2011. (Def. 56.1 ¶ 313.) Ontaneda and Pennisi's charges — which were made within 300 days of their termination — referenced the "`Onionhead' way of life," and described a "cult-like quasi religious movement," "prayer sessions" in the workplace, and termination and retaliation based on a refusal to participate in the religious activities. (Jt. Exs. 61-62.) The allegations in the charges filed by Ontaneda and Pennisi mirror the allegations of other claimants central to this case and put defendants on notice of the possibility of additional Title VII claims by others based on the same conduct.
Defendants argue that because certain components of Onionhead or Harnessing Happiness were not in place during the tenures of Maldari, Safara, Ontaneda, and Pennisi, they cannot establish a "continuing violation because there is not one component of the alleged `[Onionhead]-related religious practices' that occurred within their respective tenures with UHP/CCG." (Def. Mem. at 26-27; Def. Reply at 9.) As noted, however, Ontaneda and Pennisi explicitly complained about Onionhead practices in their EEOC charges, which were filed within 300 days of their termination. As to Maldari, although she conceded that during her employment with defendants, she did not hear the terms "Onionhead" or "Harnessing Happiness" (Tab M, Maldari Dep. at 51-54) and her employment with CCG ended fairly early in Jordan's tenure, she described a work environment similar in many respects to the one described in Ontaneda and Pennisi's complaint.
Maldari testified to being given a book by Bourandas of quotes and a journal to record her thoughts about how the quotes affected her each day, prayer in the workplace, working by lamplight, directed hand-holding, hugging, and kissing of coworkers, a shrine-like room in a utility closet into which she was "summoned," and one-on-one as well as group meetings in which she felt prodded to discuss her personal life. Jordan started meetings in the quiet room with general questions about the sales department, then directed the employees to hold hands while she said a prayer over them, and told them that God loved them and to be patient, kind and express love. Jordan also walked around the office talking about demons and angels, and referring to employees as angels
Accordingly, the court concludes that all of the claimants' hostile work environment claims are timely. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) ("We also hold that consideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for the purposes of assessing liability, so long as an act contributing to that hostile environment takes place within the statutory time period.").
"In order to make out a hostile work environment claim, a plaintiff must demonstrate: (1) that her workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile work environment to the employer." Shan v. New York City Dep't of Health & Mental Hygiene, 316 Fed.Appx. 23, 24 (2d Cir. 2009) (internal quotation marks and citation omitted); Ennis v. Sonitrol Mgmt. Corp., No. 02-CV-9070, 2006 WL 177173, at *8 (S.D.N.Y. Jan. 25, 2006) (same).
In establishing the first element, a plaintiff must show both that the misconduct was severe or pervasive enough to create an objectively hostile or abusive working environment and that she subjectively perceived the environment to be hostile or abusive. See Redd v. New York Div. of Parole, 678 F.3d 166, 175 (2d Cir. 2012) (stressing that "a plaintiff need not show that her hostile working environment was both severe and pervasive; only that it was sufficiently severe or sufficiently pervasive" (emphasis in original)). The religious hostility must be directed at the individual "because of such individual's ... religion." 42 U.S.C. § 2000e-2(a)(1). Significantly, for purposes of the hostile work environment claim premised on reverse religious discrimination, the requirement that the harassment be based on religion "can be satisfied regardless of whether the harassment is motivated by the religious belief or observance - or lack thereof - of either the harasser or the targeted employee." EEOC Compliance Manual Section 12-III-A-2-a. Courts must look to the totality of the circumstances in determining whether a workplace environment is sufficiently hostile or abusive to be actionable, but certain factors guide the analysis:
Harris, 510 U.S. at 23, 114 S.Ct. 367. Although isolated incidents will usually fall short of establishing a hostile work environment, a single incident can create a hostile work environment if the incident is sufficiently "severe." See Redd, 678 F.3d at 175-76.
The second element of a hostile work environment claim requires a plaintiff to provide a specific basis for imputing to the employer the conduct that created the hostile work environment. See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996). "An employer is presumptively liable for [] harassment in violation of Title VII if the plaintiff was harassed not by a mere coworker but by someone with supervisory (or successively higher) authority over the plaintiff, although in certain circumstances an affirmative defense may be available." Redd, 678 F.3d at 182. "No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).
"The Second Circuit has cautioned that the existence of a hostile work environment is a mixed question of law and fact. These kinds of questions are especially well-suited for jury determination and summary judgment may be granted only when reasonable minds could not differ on the issue." Preuss v. Kolmar Labs., Inc., 970 F.Supp.2d 171, 185 (S.D.N.Y. 2013) (internal quotation marks, citation, and alterations omitted).
Here, the court concludes that a reasonable jury could find that the purportedly "hostile work environment was... sufficiently severe or sufficiently pervasive... to have altered [claimants'] working conditions." Redd, 678 F.3d at 175.
Plaintiffs here describe repeated and consistent coercive efforts by supervisors to impose Onionhead beliefs on them. Pennisi testified that she attended at least 20 workshops. (Tab Q, Pennisi Dep. at 85; Tab B, Benedict Dep. at 97 (at least nine workshops); Tab N, Ontaneda Dep. at 90-91 (workshops once a month for three years).) Honohan explained that between December 2010 and December 2011, she believed that every single employee of CCG attended Onionhead workshops. (Tab H, Honohan Dep. at 28; see also Tab N, Ontaneda Dep. at 92 ("During my time there everybody attended.").) Ontaneda further stated that Onionhead was mentioned in every one of the workshops she attended. (Tab N, Ontaneda Dep. at 93.) Honohan explained that "[y]ou had to attend" and that "you were told which group you were going to be in, what day it was meeting, what time, and you showed up." (Tab H, Honohan Dep. at 30; see also Tab N, Ontaneda Dep. at 90 ("Q: You went to every single [workshop]? A: Yeah, I had to. Q: Why do you say you had to? A: Because they were mandatory. Q: How do you know they were mandatory? A: We were told. We were sent emails and given times that we had to go to the workshop.").)
Finally, some claimants have explicitly testified to damage to their psychological well-being. See Harris, 510 U.S. at 23, 114 S.Ct. 367 ("The effect on the employee's psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive."). Ontaneda described how she observed people exit one-on-one meetings with Jordan in tears. (Tab N, Ontaneda Dep. at 218) ("All I know is that when people came out of those sessions, they would come out hysterical[ly] crying.") Maldari claims that she was one of the individuals who left a meeting with Jordan, which involved probing questions about her personal life, in tears. (Tab M, Maldari Dep. at 78.) Pegullo explained that she is "so depressed and... out of it sometimes" because she was "so hurt that [she] was influenced by Denali." (Tab P, Pegullo Dep. at 175-76.) Josey described how she believed she had cried "a couple of times" during workshops and that she had "seen women cry in there." (Tab J, Josey Dep. at 77.)
The court must consider the totality of the circumstances in evaluating whether a reasonable jury could believe that claimants were subjected to a hostile work environment. The Second Circuit has instructed that evidence of hostility or harassment need not be directed at a particular plaintiff to be relevant to her claim. See Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) ("The mere fact that Schwapp was not present when a racially derogatory comment was made will not render that comment irrelevant to his hostile work environment claim. Just as a racial epithet need not be directed at a plaintiff in order to contribute to a hostile work environment, the fact that a plaintiff learns second-hand of a racially derogatory comment or joke by a fellow employee or supervisor also can impact the work environment." (citations omitted)). Under the record outlined above, a reasonable jury could find that claimants' "workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment." Shan, 316 Fed.Appx. at 24.
Turning to the second element of plaintiffs' hostile work environment claims, a jury could find by a preponderance of the evidence in the record that there is a basis for imputing liability to defendants. As discussed earlier, an "employer is presumptively liable for [] harassment in violation of Title VII if the plaintiff was harassed not by a mere coworker but by someone with supervisory (or successively higher) authority over the plaintiff, although in certain circumstances an affirmative defense may be available." Redd, 678 F.3d at 182. A "supervisor" is someone who can effect a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Vance v. Ball State Univ., U.S. ___ ___, 133 S.Ct. 2434, 2443, 186 L.Ed.2d 565 (2013) (internal quotation marks and citation omitted).
Here, it is undisputed that Bourandas, Levine, and Hodes were supervisors. (Def. Reply at 11.) The parties strongly dispute, however, whether Jordan was a supervisor. Jordan was imbued with certain indicia of, at the very least, apparent supervisory responsibilities. For example, a corporate hierarchy chart in the record contains four tiers, with Hodes at the top in the first tier, the second tier occupied only by Bourandas and Jordan, and nine supervisors including Levine in the third tier. (Jt. Ex. 90.) Levine, a supervisor, testified that when she needed to make "difficult" decisions and would need a "sounding board," she would consult with Bourandas, Jordan, or "any other manager," though Levine also testified that she did not consider Jordan a manager. (Tab L, Levine Dep. at 64-65.) Honohan testified that Jordan instructed employees to come to Jordan with "complaints" rather than Hodes. (Tab H, Honohan Dep. at 107-08, 110; see also Tab G, Hodes Dep. at 332 ("[C]ertainly over the years [employees have] been able to complain to Denali.").) Benedict testified that she "took direction from" Jordan. (Tab B, Benedict Dep. at 59.) Benedict explained that Jordan and Lane Michel, another supervisor, both informed her that she would be terminated if she did not move to Long Island. (Id. at 121.) Jordan also had authority to reassign Benedict from her duties on behalf of defendants to work on behalf of Onionhead and Harnessing Happiness at defendants' office. (Tab B, Benedict Dep. at 35, 126; Pl. 56.1 ¶ 153.) At the very least, there is a factual dispute regarding whether Jordan qualifies as a supervisor within the meaning of Title VII. See Vance, 133 S.Ct. at 2450 (recognizing that there may be circumstances "where the issue of supervisor status cannot be eliminated from the trial (because there are genuine factual disputes about an alleged harasser's authority to take tangible employment actions)"); Lolonga-Gedeon v. Child & Family Servs., 144 F.Supp.3d 438, 441 (W.D.N.Y. 2015) ("[A]n issue of fact exists as to Wright's status as a supervisor, and the Court cannot resolve it as a matter of law.").
Although, as noted above, employers are "presumptively liable for all acts of harassment perpetrated by an employee's supervisor,
Here, although it is defendants' burden to establish the Faragher/Ellerth defense, they have failed to produce a written policy of any kind that was in place any time before August 2011. (Def. 56.1 ¶¶ 45-47; Pl. 56.1 Resp. ¶¶ 45-47; Def. 56.1 Resp. at p. 49 n.2, ¶ 392.) See Fierro v. Saks Fifth Ave., 13 F.Supp.2d 481, 491 (S.D.N.Y. 1998) ("[I]n determining whether an employer has met the first element of the Faragher/Burlington affirmative defense... the employer's promulgation of an `an antiharassment policy with complaint procedure' is an important, if not dispositive, consideration." (quoting Faragher, 524 U.S. at 807, 118 S.Ct. 2275)). Further, it is undisputed that defendants conducted no training for supervisors or human resources regarding discrimination issues. (Def. 56.1 Resp. at ¶ 397.) The court simply cannot determine as a matter of law whether defendants "exercised reasonable care to prevent and promptly correct any harassment by such a supervisor." Duviella, 2001 WL 1776158, at *10 (internal quotation marks and citation omitted). Defendants have therefore failed to establish the first element of the Faragher/Burlington affirmative defense.
Accordingly, genuine disputes of material fact preclude entry of summary judgment against claimants on the hostile work environment claims premised on reverse religious discrimination.
Claimants assert that they were discriminated against on the basis of their own sincerely held beliefs, as distinct from their failure to adhere to Onionhead beliefs. As discussed earlier, claimants assert four types of claims under the traditional religious discrimination rubric:
For the reasons that follow, the court concludes that no reasonable jury could find that the claimants (with the exception of Pennisi) were discriminated against on the basis of their personal religious beliefs. Just as the court was obligated to view the totality of the circumstances in addressing claimants' reverse religious discrimination claims, the court must examine the totality of the circumstances and cannot isolate the evidence in addressing claimants' conventional religious discrimination and retaliation claims. See Friedman, 643 Fed.Appx. at 72 (holding that district court neglected to evaluate "the record as a whole, just as a jury would, to determine whether a jury could reasonably find an invidious discriminatory purpose on the part of an employer," and instead "viewed each piece of evidence in isolation" (internal quotation marks and citation omitted)).
Each of the four varieties of claims at issue require claimants to establish a causal link between their religious beliefs and the discrimination or retaliation. Title VII, as relevant here, provides that employers may not "discharge any individual, or otherwise ... discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's... religion." 42 U.S.C. § 2000e-2(a)(1) (emphasis added). The retaliation claims require that claimants' protected activity (here, their expressed opposition to Onionhead based on their asserted religious beliefs or their request for accommodation based on their religious beliefs) be the but-for cause of their terminations. See Nassar, 133 S.Ct. at 2533 ("Title VII retaliation claims must be proved according to traditional principles of but-for causation....").
As an initial matter, in support of their conventional religious discrimination and retaliation claims, claimants' briefing principally directs the court to the exact same evidence supporting their reverse religious discrimination claims. (Pl. Mem. at 32-33, 35, 38-39.) Aside from pointing the court to the very limited references in the deposition testimony to claimants' own religious practices and beliefs (e.g., Pl. Mem. at 32 (citing Pl. 56.1 ¶¶ 375-76)), claimants have, with the notable exception of Pennisi, failed to present a sufficient evidentiary link between their personal religious beliefs or lack thereof, and the purported discrimination and retaliation to defeat summary judgment. As the deposition excerpts below establish, each claimant, with the exception of Pennisi, either: (1) testified during her respective deposition that she was not discriminated against or retaliated against on the basis of her own beliefs and/or (2) failed to provide testimony or other evidence indicating that she had been discriminated against on the basis of her own beliefs.
Diaz testified as follows:
(Tab E, Diaz Dep. at 47 (emphasis added).) Diaz only discussed her Catholicism on one other occasion in her deposition. (Id. at 88.)
Diaz's testimony resembles much of the additional testimony of other claimants discussed below, insofar as she distinguished between reverse discrimination ("she tried to push her beliefs ... on us") and conventional discrimination, which to be actionable
(Tab B, Benedict Dep. at 9, 14, 16.)
(Tab H, Honohan Dep. at 96-97.)
(Tab J, Josey Dep. at 125-26.)
(Tab M, Maldari Dep. at 80-82.)
(Tab N, Ontaneda Dep. at 28-29, 222.)
(Tab O, Pabon Dep. at 63-64.)
Although claimants contend that Pabon had sincerely held beliefs that conflicted with Onionhead (Pl. 56.1 ¶ 376), they direct the court to no testimony from Pabon indicating that she was discriminated against or retaliated against because of her sincerely held religious beliefs or lack thereof.
Pegullo testified that she "do[esn't] practice religion" and that she "can't say [she is] spiritual," but she also stated that she "do[es] have [her] beliefs." (Tab P, Pegullo Dep. at 132.) Claimants point to no evidence in the record, however, indicating that Pegullo was terminated or retaliated against on the basis of her beliefs.
(Tab R, Safara Dep. at 58-59 (emphasis added).)
Safara's testimony underscores the nature of claimants' assertions regarding Onionhead, and echoes Diaz's testimony excerpted above. With the exception of Pennisi, none of the claimants present evidence that they were treated differently or retaliated against because of their beliefs or religion, or lack thereof.
Pennisi, however, made explicit allegations that she held strong Catholic beliefs and that she was discriminated against as well as retaliated against on the basis of her Catholic beliefs. She asserts four claims deriving from discrimination and retaliation purportedly based on her Catholicism: (1) failure to accommodate; (2) retaliation; (3) disparate treatment; and (4) hostile work environment. The court addresses Pennisi's claims in turn.
"To establish a prima facie case of religious discrimination based on failure to accommodate, a plaintiff must prove that: (1) he or she has a bona fide religious belief that conflicts with an employment requirement; (2) he or she informed the employer of this belief; [and] (3) he or she was disciplined for failure to comply with the conflicting employment requirement." St. Juste, 8 F.Supp.3d at 315 (internal quotation marks and citation omitted). "After an employee or prospective employee notifies the employer or labor organization of his or her need for a religious accommodation, the employer or labor organization has an obligation to reasonably accommodate the individual's religious practices." 29 C.F.R. § 1605.2(c)(1) (emphasis added).
Here, Pennisi's failure to accommodate claim fails because she testified that she never sought any accommodation on the basis of her Catholicism:
"To establish a prima facie case of retaliation under Title VII, a plaintiff must show (1) that she was engaged in protected activity by opposing a practice made unlawful by Title VII; (2) that the employer was aware of that activity; (3) that she suffered adverse employment action; and (4) that there was a causal connection between the protected activity and the adverse action." Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998) (citation omitted).
Here, Pennisi engaged in protected activity of which defendants were aware when she complained in a July 2010 meeting to Jordan and others that Onionhead beliefs conflicted with her Catholicism. (Tab Q, Pennisi Dep. at 191-92.) See Lewis v. New York City Transit Auth., 12 F.Supp.3d 418, 449 (E.D.N.Y. 2014) (recognizing that "protesting a discriminatory employment practice ... constitute[s] [a] protected activit[y]"); see also Gordon v. New York City Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000) ("Neither this nor any other circuit has ever held that, to satisfy the knowledge requirement, anything more is necessary than general corporate knowledge that the plaintiff has engaged in a protected activity."). Pennisi claims that she was terminated, which constitutes an adverse employment action, during Jordan's first return to the office after she voiced her religious objections to Onionhead. Her purported termination occurred in August 2010, approximately one month after she engaged in protected activity in July 2010. See Treglia v. Town of Manlius, 313 F.3d 713, 721 (2d Cir. 2002) (prima facie retaliation case established where approximately one month had elapsed between protected activity and adverse employment action). As discussed earlier (see supra Discussion Part II.B.iii), a reasonable jury could find that defendants' purportedly legitimate non-discriminatory reason for allegedly terminating Pennisi was pretextual. A reasonable jury could conclude that Pennisi was retaliated against on the basis of her religious beliefs.
For similar reasons, a reasonable jury could find that Pennisi was discriminated against on the basis of her religion (a claim governed by the traditional McDonnell Douglas burden-shifting framework outlined supra). "[A]ll plaintiffs who seek to make out a prima facie case of religious discrimination must show that (1) they held a bona fide religious belief conflicting with an employment requirement; (2) they informed their employers of this belief;
As described above, Pennisi and others provided testimony that they believed Onionhead-related activities were mandatory. (Tab Q, Pennisi Dep. at 89, 93-94, 125, 136.) Pennisi testified that she informed CCG that Onionhead conflicted with her Catholicism, and was terminated soon after. Although defendants contend that Pennisi was terminated for failing to report to work, a reasonable jury could find that their asserted justification for her termination was pretextual.
As noted above, to "state a hostile work environment claim, a plaintiff must plead facts tending to show that the complained of conduct: (1) is objectively severe or pervasive — that is, creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff's... protected characteristic." Robinson v. Harvard Prot. Servs., 495 Fed. Appx. 140, 141 (2d Cir. 2012) (emphasis added) (internal quotation marks and citation omitted).
Pennisi's claim that she was subjected to a hostile work environment falls short because she cannot establish the third requirement, that her work environment was hostile because of her religion. She claims that she informed defendants that she was Catholic in the July 2010 meeting and was terminated in August 2010. By claimants' own admission, Jordan was absent during much of the time between the July 2010 meeting and Pennisi's purported August 2010 termination. Accordingly, the vast majority of the allegations Pennisi levels against defendants in support of her hostile work environment claim occurred before she claims that defendants knew of her religion. She does not establish that she was subjected to a hostile work environment because of her religion in the brief window between when she claims defendants learned of her religion and when she was terminated. By contrast, as discussed earlier, her reverse hostile work environment may proceed because the reverse hostile work environment claim is not dependent on defendants' knowledge of her sincerely held Catholic beliefs.
Accordingly, claimants' motion for partial summary judgment is GRANTED. Defendants' motion for summary judgment is GRANTED in part and DENIED in part. Specifically:
The parties are directed to prepare a joint letter to the court indicating their preparedness for trial within seven days of this memorandum and order.
Dated: September 30, 2016.
118 Cong. Rec. 705 (1972) (statement of Sen. Randolph). Commentators, too, have recognized that in determining "whether a given belief or action is religious ... for purposes of Title VII, courts have sought guidance from cases defining `religion' as the term is used in the free exercise clause of the first amendment." Randall J. Borkowski, Defining Religious Discrimination in Employment: Has Reasonable Accommodation Survived Hardison?, 2 Seattle U. L. Rev. 343, 347 (1979) (collecting cases) (footnotes omitted).
