In Sarr v. Saks Fifth Ave. LLC, 151303/2015, 2016 NY Slip Op 31751(U) (NY Sup Ct NY Cty Sept. 20, 2016), the court dismissed the claims brought by the Muslim plaintiff, under the NYS and NYC Human Rights Laws, of employment discrimination, retaliation, and hostile work environment.
After reviewing the legal standard/burden-shifting framework for evaluating plaintiff’s discrimination claims, Judge Engoron applied the law to the facts:
Construing the evidence in the light most favorable to the non-movant, this Court finds that plaintiff has established a prima facie case of discrimination, demonstrating that ( 1) he is Muslim and, thus, a member of a protected class; (2) he was qualified to hold the position, as he received numerous awards for his ability to open credit card accounts; (3) Saks terminated his employment on October 17, 2015; and (4) the termination may give rise to an inference of discrimination, as plaintiff alleges that other non-Muslim employees were not questioned about their religious beliefs and habits. See Reeves v Sanderson Plumbing Prod., Inc., 530 US 133, 134 (2000) (“a plaintiffs prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated”).
However, defendants have met their burden of setting forth a legitimate, nondiscriminatory reason to terminate plaintiff, to wit, plaintiffs violation of defendants’ D&A policies. It is undisputed that defendants have D&A policies, requiring all employees to report to work on time and to give supervisors prior notice if it is necessary to be late or absent for any reason, which defendants provided to plaintiff in his Handbook and discussed during his training. The record reflects plaintiffs long history of leaving early or being absent without authorization: in a mere 5-week period in February and March of 2013, plaintiff was late to work 22 out of the 26 days and was absent three other days; from July 6-22, 2013, plaintiff left early 12 times; and between September 9-23, 2013, plaintiff arrived late on seven occasions and left before the scheduled end of his shift on 13 occasions. Despite receiving four separate warnings over the course of 10 months, plaintiff continued to violate Saks’ D&A policies by repeatedly arriving late to work, leaving earlier than the end of his shift, and failing to give his supervisors prior notice of his absence. Saks has the right to maintain D&A policies as a business decision and to terminate plaintiff after giving him fair warning. See Baldwin v Cablevision Sys. Corp., 65 AD3d 961, 966 (1st Dept 2009) (“A court in an employment discrimination case should not sit as a super-personnel department that reexamines an entity’s business decisions”). Plaintiff has failed to deny these allegations.
Plaintiff has also failed to demonstrate that defendants’ proffered reasons for terminating him were merely pertextual. Plaintiff argues that defendant’s articulated reasons for terminating him were merely pretext, based on (1) demeaning remarks allegedly made by Washburn, asking plaintiff why he needed to pray so much, telling other employees not to help plaintiff with his work, and commenting that” [Washburn will] fire you soon, because you Muslim” [sic]; and (2) the fact that non-Muslim employees were not reprimanded for their lack of dependability. The Court finds this argument unpersuasive; plaintiff has not presented sufficient, concrete evidence to support a finding that this treatment was religiously motivated, especially in light of the fact that plaintiff admits he was aware of defendants’ D&A policies and deliberately violated them by continuing to be late or absent from work.
The court next dismissed plaintiff’s retaliation claim, finding that he “failed to demonstrate a causal connection between the protected activity-a complaint about Washburn’s comments to Saks’ human resources department-and his subsequent termination.”
Finally, the court dismissed plaintiff’s hostile work environment claim (even under the NYCHRL’s more employee-friendly standard), explaining: “Even though Washburn’s questions and comments concerning plaintiffs praying habits were perhaps insensitive and offensive, in plaintiffs subjective opinion, plaintiff has not proffered evidence that defendants’ conduct was more than ‘petty slights and trivial inconveniences.'” In addition, “the two employees plaintiff contends were similarly situated to him and not disciplined for violating D&A policies, were in fact either disciplined or terminated pursuant to the D&A policies.”