Practicing Nazirite’s Retaliation Claim, Arising From Mistreatment After Requesting Long hair Reasonable Accommodation, Survives Dismissal

In Brooks v. City of Utica, No. 16-cv-1427, 2017 WL 3242273 (N.D.N.Y. July 28, 2017), the court ruled on claims asserted by plaintiff – a firefighter-paramedic and practicing Nazirite – of discrimination based on religion, retaliation, failure to accommodate religious beliefs, and hostile work environment.

Plaintiff’s religious observance as a Nazirite required him to keep his hair long. He alleges that defendant failed to accommodate his religious beliefs and, following his accommodation request, subjected him to retaliation and a hostile work environment.

Here I’ll focus on the court’s assessment of plaintiff’s retaliation claim.

The court summarized the legal standard:

A prima facie case of retaliation requires a plaintiff to demonstrate that “(1) [he] was engaged in protected activity; (2) the employer was aware of that activity; (3) [he] suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action.” Lore v. City of Syracuse, 670 F.3d 127, 157 (2d Cir. 2012). “The Supreme Court has held that in the context of a Title VII retaliation claim, an adverse employment action is any action that ‘could well dissuade a reasonable worker from making or supporting a charge of discrimination.’ ” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)). “This definition covers a broader range of conduct than does the adverse-action standard for claims of discrimination under Title VII.

Defendant moved to dismiss plaintiff’s retaliation claim under Federal Rule of Civil Procedure 12(c) – judgment on the pleadings – on the grounds that plaintiff failed to allege an “adverse employment action” or a causal connection between the “protected activity” and the alleged retaliation.

The court disagreed, reasoning:

On or about January 17, 2015, Plaintiff first notified Wusik that he was a practicing Nazirite and requested that his religious beliefs be reasonably accommodated. Compl. ¶ 20. Four days later, Kelly ordered Plaintiff to cut his hair or face the possibility of being relieved of duty. Id. ¶ 22. Requesting a reasonable accommodation for religious beliefs is a protected activity, see Hajjar-Nejad v. George Washington Univ., 873 F. Supp. 2d 1, 22 (D.D.C. 2012) (noting that protected activity includes “requesting a reasonable accommodation based on religion”), and the order to Plaintiff to cut his hair constitutes an adverse employment action in the retaliation context. A reasonable person, “in the plaintiff’s position, considering ‘all the circumstances,’ ” would likely be dissuaded from engaging in protected activity if, after requesting a reasonable accommodation, he was ordered to violate a core tenet of his religion by cutting his hair. White, 548 U.S. at 71 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)). Additionally, the order for Plaintiff to cut his hair occurred only four days after the accommodation request, which is temporally proximate enough to show causation.