Genas v. State of N.Y. Dept. of Correctional Services

• Decision Date: 12 February 1996
• Docket Number: No. 88,D,88
• Citation: 75 F.3d 825
• Parties: 70 Fair Empl.Prac.Cas. (BNA) 16, 67 Empl. Prac. Dec. P 43,913 Kingsley GENAS, Plaintiff-Appellee, v. STATE OF NEW YORK DEPARTMENT OF CORRECTIONAL SERVICES, Thomas A. Coughlin III, Stephen Dalsheim, Donald McLaughlin and John McGuinness, Defendants-Appellants. ocket 95-7125.
• Court: U.S. Court of Appeals — Second Circuit

Page 825

75 F.3d 825

70 Fair Empl.Prac.Cas. (BNA) 16, 67 Empl.

Prac. Dec. P 43,913

Kingsley GENAS, Plaintiff-Appellee, v. STATE OF NEW YORK DEPARTMENT OF CORRECTIONAL SERVICES Thomas A. Coughlin III, Stephen Dalsheim, Donald McLaughlin and John McGuinness Defendants-Appellants.

No. 88, Docket 95-7125.

United States Court of Appeals Second Circuit.

Argued Sept. 13, 1995.

Decided Feb. 12, 1996.

Marilyn T. Trautfield, Assistant Attorney General, New York City (Dennis C. Vacco, Attorney General of the State of New York, Kathie Ann Whipple, Acting Chief, Litigation Bureau, Assistant Attorney General, New York City, of counsel), for Defendants-Appellants.

Alan J. Reinach, Westlake Village, CA, for Plaintiff-Appellee.

Before: NEWMAN, Chief Circuit Judge, VAN GRAAFEILAND, Senior Circuit Judge and PARKER, Circuit Judge.

PARKER, Circuit Judge:

Defendants-appellants challenge a judgment of the United States District Court for the Southern District of New York, Gerard L. Goettel, Judge, denying their motion for summary judgment on the grounds of qualified immunity. Plaintiff alleges that defendants: (1) discriminated against him on the basis of his religion by refusing to accommodate his Sabbath observance, in violation of the Free Exercise Clause of the First Amendment and Title VII (42 U.S.C. § 1983; 42 U.S.C. § 2000e-2); and (2) retaliated against him for exercising his First Amendment right to petition for redress in violation of 42 U.S.C. § 1983. The individual defendants ask us to reverse the district court's denial of qualified immunity for the Free Exercise and retaliation claims. In addition We find that we have jurisdiction to review the district court's denial of summary judgment for qualified immunity as to plaintiff's Free Exercise claim. We agree with defendants that the district court erred when it denied their motion for qualified immunity on this claim. However, we find that we do not have jurisdiction to review the district court's denial of qualified immunity on the retaliation claim, since this determination rested on the existence of disputed issues of fact. Accordingly, we reverse in part and dismiss the remaining portion of the appeal.

all of the defendants ask us to exercise pendent appellate jurisdiction and dismiss the complaint in its entirety.

BACKGROUND

Plaintiff Kingsley Genas has been a member of the Seventh Day Adventist Church since 1973. One of the central tenets of this church requires the observance of the seventh day as the Sabbath, from sundown Friday to sundown Saturday. Only "work of necessity" may be performed on the Sabbath.

Genas began working at the Downstate Correctional Facility ("Downstate") in 1981, and became a corrections officer in 1987. All corrections officers at Downstate work eight-hour shifts on a rotating schedule of four days on and two days off. The shifts run from 7:00 a.m. to 3:00 p.m., 3:00 p.m. to 11:00 p.m., and 11:00 p.m. to 7:00 a.m. As part of a collective bargaining agreement, officers bid for specific shifts, which are awarded based on seniority. Employees who cannot work an assigned shift are permitted to "swap" shifts with other employees.

From 1987 until February 1989, Genas worked the 3:00 p.m. to 11:00 p.m. shift which, with the rotating schedule, required him to periodically work on Friday and/or Saturday evenings. He did so in violation of his Sabbath. He claims that he "tried to quiet [his] conscience by telling [himself] that [this] work was necessary" and thus permitted by church teachings.

In February 1989, Genas and his wife, who was also an employee at the Department of Correction Services ("DOCS"), agreed that they could no longer work on the Sabbath in good conscience. At that time, Mr. Genas would not have been eligible to switch to a new shift for about two months. In the interim, he felt he needed Downstate's assistance to avoid Sabbath work.

On February 6, Genas contacted defendant Stephen Dalsheim, then Superintendent of Downstate, requesting a meeting to discuss the conflict. The following day, Genas and his wife met with First Deputy Superintendent Donald McLaughlin to explain their need for Sabbath accommodation. DOCS would allow Genas to swap shifts with other corrections officers in order to obtain necessary days off. However, McLaughlin indicated that he would not take further affirmative steps to guarantee particular days off. Decisions on post and shift assignments were based solely on seniority as required by the collective bargaining agreement. ¹

After registering his grievance with the union, Genas was referred to union representative Robert Zeller. Zeller and Genas met with McLaughlin sometime before February 10, proposing numerous arrangements to accommodate Genas' Sabbath observance. For example, they suggested that DOCS place Genas in the unbid resource pool to ensure greater shift flexibility, or that DOCS allow Genas to personally pay the overtime cost of a replacement officer when a swap could not be arranged. McLaughlin rejected their proposals.

Genas was unable to arrange a swap for his shift on Friday, February 10. He did not report to work. On February 15, McLaughlin informed plaintiff that further such absences "would constitute a direct disobedience of a lawful order." Plaintiff once again met with McLaughlin on February 16, and informed him that he would not report to his scheduled shifts on February 17 or 24 due to his religious obligations. He did not report to work on the 17th.

Genas called Downstate on February 24 and indicated once more that he would not attend work that day. McLaughlin ordered Genas to report to work or face suspension. Genas did not report for his shift. DOCS suspended him without pay, and gave him a Notice of Discipline seeking his discharge for being insubordinate and AWOL.

After the union filed a grievance on behalf of Genas, an arbitrator found him guilty of insubordination. However, the arbitrator also found that the suspension was improper, and ordered DOCS to reinstate Genas with backpay and benefits. The arbitrator further ordered DOCS to accommodate plaintiff's Sabbath by allowing him to take unpaid leave.

On October 17, 1991, the New York State Supreme Court, Appellate Division, affirmed the reinstatement and backpay but overturned that portion of the arbitration agreement requiring accommodation through the use of unpaid leave. In re State and Council 82 ex rel. Genas, 176 A.D.2d 1009, 575 N.Y.S.2d 175 (3d Dept.1991), appeal denied, 79 N.Y.2d 756, 583 N.Y.S.2d 191, 592 N.E.2d 799 (N.Y.1992). On April 6, 1992, Genas' counsel wrote DOCS requesting backpay and seeking cooperation in obtaining a night shift for Genas to accommodate his Sabbath observance on his return to service.

On Thursday, April 16, 1992, DOCS Deputy Superintendent for Security John McGuinness called Genas and ordered him to return to work for the 3:00 to 11:00 shift that same day. Having secured a new job in the meantime as a school bus driver for the Arlington School District, Genas told McGuinness that he would need two weeks to give notice to his new employer. McGuinness also informed Genas that his second shift was scheduled for Saturday, April 18, and that no accommodation had been made for his Sabbath observance. Genas did not report to either shift. On April 20, McGuinness again called Genas and demanded that he report to work immediately. When Genas failed to do so, DOCS issued a Notice of Discipline ("NOD") seeking Genas' dismissal for being insubordinate and AWOL by missing his shifts on April 16 and 20.

Plaintiff appealed the NOD. Once again, an arbitrator found Genas guilty of insubordination, this time ordering a three month suspension without pay. The suspension ran from January 20 to April 20, 1993. Plaintiff returned to work at DOCS on April 21, 1993, and thereafter succeeded in switching to the 11:00 p.m. to 7:00 a.m. shift. Working this shift, Genas remains employed and has successfully accommodated his Sabbath observance using his leave and arranging swaps with other employees much the same as his wife has done. See supra note 1.

In 1989, and again in 1992, Genas filed complaints against DOCS with the New York State Division of Human Rights ("SDHR") alleging discrimination based on race and religion, and retaliation for pursuit of his administrative remedies. The EEOC issued a Notice of Right to Sue Letter on February 3, 1993, and Genas brought this action in district court on March 10, 1993.

Genas' complaint to the district court set forth four claims, three of which remain: ² (1) religious discrimination and failure to accommodate religious observances in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2; (2) interference with his Free Exercise rights under the First Amendment, 42 U.S.C. § 1983; and (3) unlawful retaliation based on pursuit of an administrative remedy, in violation of his First Amendment right to petition for redress, 42 U.S.C. § 1983.

Defendants moved for summary judgment on all of plaintiff's claims based on, inter alia, the defense of qualified immunity. The district court denied this motion in its entirety. This appeal followed. ³

DISCUSSION

As a threshold matter, we must decide whether we have jurisdiction to hear the present appeal. Generally (with some limited exceptions) federal courts of appeals may only exercise jurisdiction over "final decisions" of the district courts. 28 U.S.C. § 1291. However, the United States Supreme Court has recognized that some decisions may be "final" for the purposes of § 1291 even though they are not "the last order possible to be made in a case." Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964). In Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985), the Supreme Court held "that a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is...