Berkowitz v. E. Ramapo Cent. Sch. Dist.

• Decision Date: 21 March 2013
• Docket Number: No. 11–cv–07002 (ER).,11–cv–07002 (ER).
• Citation: 932 F.Supp.2d 513
• Parties: Mark BERKOWITZ, Shelley Karben, Phyllis Frankel, Lynn Weinglas, David Berkowitz, Barbara Kieffer, Rivka Teicher, Carren Teitelbaum, Phyllis Safier, and Sarah E. Labkovsky, Plaintiffs, v. EAST RAMAPO CENTRAL SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — Southern District of New York

932 F.Supp.2d 513

Mark BERKOWITZ, Shelley Karben, Phyllis Frankel, Lynn Weinglas, David Berkowitz, Barbara Kieffer, Rivka Teicher, Carren Teitelbaum, Phyllis Safier, and Sarah E. Labkovsky, Plaintiffs,

v.EAST RAMAPO CENTRAL SCHOOL DISTRICT, Defendant.

No. 11–cv–07002 (ER).

United States District Court, S.D. New York.

March 21, 2013.

Robert Leo Greene, Law Office of Robert L. Greene, New York, NY, Roman P. Storzer, Storzer & Greene, P.L.L.C., Washington, DC, for Plaintiff.

Christopher Gerard Kirby, Dominick M. Minerva, Matthew Minerva, Minerva & D'Agostino, P.C., Valley Stream, NY, for Defendants.

OPINION AND ORDER

RAMOS, District Judge.

Plaintiffs are observant Jewish teachers and nurses employed by East Ramapo Central School District (“Defendant” or the “District”). Pursuant to two collective bargaining agreements with the District, Plaintiffs are entitled to take paid days off from work for religious observance, which are charged to Plaintiffs' sick leave. The District is refusing to abide by those provisions of the agreements on the ground that to do so would violate the Establishment Clause of the U.S. Constitution. Plaintiffs allege that Defendant's refusal to abide by the provisions violate their rights under the U.S. and N.Y. Constitutions and Title VII. First Amended Complaint (“Am. Compl.”) ¶¶ 66–95. Plaintiffs also seek a declaratory judgment that the provisions entitling them to take paid leave for religious observance are constitutional and do not violate the Establishment Clause. Id. ¶¶ 96–98.

Before the Court are Defendants' motion to dismiss Plaintiffs' § 1983 claims and New York law claims, Doc. 20, and Plaintiffs' motion for partial summary judgment on their declaratory judgment claim, Doc. 25. For the reasons discussed below, Defendants' motion to dismiss is GRANTED in part and DENIED in part, and Plaintiffs' motion for partial summary judgment is GRANTED.

I. Factual Background¹

Defendant is a central public school district organized pursuant to New York's Education Law and the pertinent regulations, as well as the laws of the State of New York. Pl.'s Statement of Undisputed Facts Pursuant to L.R. 56.1 (“Pls.' 56.1 Stmt.”) ¶ 2.²

Plaintiffs are all observant Jews who are employed by the District and sincerely believe that they should not work on certain Jewish holidays. Am. Compl. ¶ 18; Pls.' 56.1 Stmt. ¶ 1.

a. Teacher Plaintiffs

Plaintiffs Berkowitz, Karben, Frankel, Kieffer, Labkovsky, Weinglas, and Teicher (the “Teacher Plaintiffs”) are members of the East Ramapo Teachers Association (the “Teachers Association”). Am. Compl. ¶ 19. The Teacher Plaintiffs' employment by the District is governed by collective bargaining agreements between the Teachers Association and the District (the “Teachers' Agreement”). Pls.' 56.1 Stmt. ¶ 3. The Teachers' Agreement allows teachers to take paid leave for personal matters or for illness. Am. Compl. ¶ 20; Pls.' 56.1 Stmt. ¶ 5. Specifically, Section 10(A)(1) of the Teachers' Agreement states in part that: “Each teacher shall be allowed a total of twenty (20) days per year for absences due to (a) personal illness; (b) family illness; and (c) personal leave.” Am. Compl. ¶ 21. Section 10(A)(10) states that “[a]bsences on school days beyond allowed absences will result in deduction in salary at the per diem rate of 1/200 of the teacher's salary.” Am. Compl. ¶ 29; Pls.' 56.1 Stmt. ¶ 12.

The Teachers' Agreement provides that “up to 3 days per year may be used for personal leave without loss of salary” (Section 10(A)(7)). Am. Compl. ¶ 28; Pls.' 56.1 Stmt. ¶ 8. Section 10(A)(9) states:

Teachers who have established a pattern of absences for the purpose of fulfilling religious observance obligations may, after using their three (3) personal leave days for this purpose, use additional leave days for this purpose, to be charged to their sick leave. This provision shall not be expanded under any circumstances to include anyone other than those who qualify as provided above.

Am. Compl. ¶ 22; Pls.' 56.1 Stmt. ¶ 10. The Teachers' Agreement does not limit religious observance to any specific religion or religious day of observance. Pls.' 56.1 Stmt. ¶ 11. Since at least the 1974 Teachers' Agreement, each successive agreement has contained a religious observance clause that has remained essentially unchanged. Id. ¶ 13.

The Agreement permits absences without loss of salary for jury duty (Section 10(A)(3)); for “family illness” up to five days (Section 10(A)(6)); and for “bereavement leave” for two, three, or five days, depending on the relationship of the employee to the deceased family member (Section 10(A)(2)). Am. Compl. ¶ ¶ 24–26; Pls.' 56.1 Stmt. ¶¶ 7, 9.

Section 10(A)(5) of the Teachers' Agreement states that “[a] maximum of fifteen (15) unused days of the twenty (20) for personal illness, family illness, and personal leave will be allowed to accrue from year to year to a maximum of 180 days. Accumulated leave may only be used for personal illness of the teacher.” Pls.' 56.1 Stmt. ¶ 6; Affirmation of Christopher Kirby (“Kirby Aff.”), Ex. 1 at 22.

The Teacher Plaintiffs allege that it is the District's policy to not adhere to Section 10(A)(9) of the Teachers' Agreement. Am. Compl. ¶ 23. They claim that the District has permitted other employees paid leave for a variety of other, secular reasons not designated within the Teachers' Agreement on an ad hoc basis without docking their pay. Id. ¶ 27. The Teacher Plaintiffs have not worked on certain religious holidays in furtherance of their religious beliefs, and have had their salary deducted as a result of the District's refusal to abide by Section 10(A)(9) of the Teachers' Agreement. Id. ¶¶ 31.

b. Nurse Plaintiffs

Plaintiffs Safier and Teitelbaum (the “Nurse Plaintiffs”) are members of the East Ramapo School Nurses' Association (the “Nurses' Association”). Am. Compl. ¶ 32. Their employment is governed by an agreement between the District and the Nurses' Association (the “Nurses' Agreement”). Pls.' 56.1 Stmt. ¶ 4. The Nurses' Agreement contains substantially similar language to the Teachers' Agreement regarding leave for religious observance. Am. Compl. ¶ 33. Section 6.01(7) of the Nurses' Agreement (together with Section 10(A)(9) of the Teachers' Agreement, the “Religious Observance Clauses”) states:

Any individual who has exhausted his/her personal leave, may utilize sick leave days for the purpose of observing religious holidays if they have shown a history of religious observance (for a period of two years).

Id. ¶ 34; Pls.' 56.1 Stmt. ¶ 14. The Nurses' Agreement does not limit religious observance to any specific religion or religious day of observance. Pls.' 56.1 Stmt. ¶ 15.

Section 6.01(8) of the Nurses' Agreement states: “Absences on workdays beyond allowed absences will result in deduction of salary at the per diem rate of 1/200th of the employee's salary.” Am. Compl. ¶ 35; Pls.' 56.1 Stmt. ¶ 16. Sections 6.01(1), (4), and (5) permit paid absences for family illness, bereavement leave, and jury duty. Am. Compl. ¶ 36; Pls.' 56.1 Stmt. ¶ 17.

The Nurse Plaintiffs have not worked on certain religious holidays in furtherance of their religious beliefs and have had their salary deducted as a result of the District's refusal to abide by Section 6.01(7) of the Nurses' Agreement. Am. Compl. ¶¶ 37–38.

c. History of Alleged Discrimination

For approximately three decades prior to October 2000 (from 1974–2000), the District had permitted observant Jewish employees to use paid sick leave days to accommodate their religious beliefs with respect to religious holidays pursuant to the Religious Observance Clauses. Id. ¶ 40; Pls.' 56.1 Stmt. ¶ 20. Prior to October 2000, other observant Jewish employees who were not covered by the Teachers' or Nurses' Agreements were also permitted to use their paid sick leave for religious holidays.³ Am. Compl. ¶ 42.

On October 5, 2000, Assistant Superintendent Harvey Schnall sent a memo to District employees informing them that “effectively immediately, individuals will no longer be able to use a personal leave day, or sick day, even if previously permitted contractually, to receive pay for religious observance.” Id. ¶ 43; Pls.' 56.1 Stmt. ¶ 21. Schnall apparently based his decision on a 2000 Appellate Division decision, Port Washington Union Free School District v. Port Washington Teachers Association (“Port Washington ”). Am. Compl. ¶ 44. Schnall asserted that the Port Washington decision stood for the proposition that using personal or sick days for religious observance is “unconstitutional.” Id.; Pls.' 56.1 Stmt. ¶ 22. He stated that the “rationale was that public funds were being used to pay someone to practice their religion, in violation of the separation of church and state principles in the U.S. Constitution.” Am. Compl. ¶ 44.

Shortly thereafter, the Teachers' Association's president appeared before the East Ramapo Board of Education (the “School Board”) to discuss Shnall's memo. Id. ¶ 45. The School Board partially overturned Schnall's decision, allowing the teachers to continue to use their three “personal” days for religious observance. Id. ¶ 46; Pls.' 56.1 Stmt. ¶ 23. However, the School Board upheld so much of Schnall's decision that prohibited the use of sick leave for religious observance. Id. The decision of the School Board was memorialized in a subsequent memo from Schnall, dated December 5, 2000. Id. That memo stated that the District “will continue to monitor the courts. If a future court decision so requires, this practice will be revisited at the appropriate time.” Am. Compl. ¶ 47.

The Religious Observance Clause was originally included in the 1974 collective bargaining agreement with the Teachers' Association based on the efforts of the union and employees. Pls.' 56.1 Stmt. ¶ 19. The District has continued to agree to include the Religious Observance Clauses in subsequent collective bargaining agreements with the teachers and nurses. Am. Compl. ¶ 48; Pls.' 56.1...