Livingston v. City of New York

• Decision Date: 28 September 2021
• Docket Number: 19 Civ. 5209 (KPF)
• Parties: Andrew LIVINGSTON, Plaintiff, v. CITY OF NEW YORK, The New York City Administration for Children's Services, Crossroads Juvenile Center, and Jamal Nedderman, individually and in his official capacity for the New York City Administration for Children Services, Defendants.
• Court: U.S. District Court — Southern District of New York

563 F.Supp.3d 201

Andrew LIVINGSTON, Plaintiff,

v.CITY OF NEW YORK, The New York City Administration for Children's Services, Crossroads Juvenile Center, and Jamal Nedderman, individually and in his official capacity for the New York City Administration for Children Services, Defendants.

19 Civ. 5209 (KPF)

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

Signed September 28, 2021

Mark Shirian, Mark David Shirian PC, New York, NY, for Plaintiff.

Amanda Blair, Maxwell Douglas Leighton, New York City Law Depart. Office of the Corporation Counsel, New York, NY, for Defendants.

OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:

Plaintiff Andrew Livingston brings this action against his former employers, the City of New York (the "City"), the New York City Administration for Children's Services ("ACS"), and Crossroads Juvenile Center ("Crossroads"), as well as Jamal Nedderman (together with the City, ACS, and Crossroads, "Defendants"), a Director of Operations at ACS's Division for Youth and Family Justice during the relevant period. Plaintiff claims that Defendants subjected him to discrimination, a hostile work environment, retaliation, and constructive discharge, all on account of his religious beliefs, in violation of Title VII of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"); the New York State Human Rights Law, N.Y. Exec. Law §§ 290 - 297 (the "NYSHRL"); and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 to 8-131 (the "NYCHRL").¹ Plaintiff also claims that the City, ACS, and Crossroads negligently hired, retained, and supervised their employees. Defendants now move for summary judgment under Federal Rule of Civil Procedure 56. For the reasons set forth in the remainder of this Opinion, the Court grants Defendants’ motion in full.

BACKGROUND²

A. Factual Background

1. The Parties and ACS's Absence Control Policy

Plaintiff self-identifies as an Orthodox Observant Jew who observes the Sabbath, and is thus unable to work from sundown on Friday nights to sundown on Saturday nights. (Def. 56.1 ¶ 11). He is also unable to work on certain Jewish holidays. (Id. ). Plaintiff was employed as a Youth Development Specialist ("YDS") with ACS between August 6, 2018, and November 19, 2018. (Id. at ¶¶ 12, 16, 145). In this capacity, Plaintiff was assigned to Crossroads, a detention facility for youth residents awaiting transfer to an upstate facility or release to an appropriate program. (Id. at ¶ 23). During this time period, Crossroads was supervised by Nedderman, its Director of Operations. (Id. at ¶ 24).

ACS maintains an Absence Control Policy, which requires that employees notify their immediate supervisor, director, or manager when requesting to be excused from work. (Blair Decl., Ex. O at 11 ("Absence Control Policy" or the "Policy")). The Policy provides that: "Failure to contact a supervisor, director, or manager within the requisite time will result in the employee being considered Absent without Leave (AWOL)." (Id. at 4). Under the Policy, an employee can be deemed "AWOL" for, inter alia , "failure to report to work without approval/authorization"; "failure to call in within established timeframes"; "early departure without prior authorization"; and "failure to notify his/her supervisor of an absence ... if the supervisor does not approve the leave on City Time [ACS's time entry system]." (Id. at 5). Moreover, the Policy tasks "immediate supervisors, managers, Directors, and the Director of Administration" with "monitor[ing] the attendance records of all staff members assigned to their facility and ... counsel[ing] and address[ing] any staff member who appears to be developing a pattern of AWOL." (Id. at 12).

2. Plaintiff's Initial Employment with ACS

Plaintiff interviewed for a YDS position with ACS on June 30, 2018. (Def. 56.1 ¶ 12; see also Blair Decl., Ex. I ("Candidate Evaluation Sheet")). During his interview, Plaintiff represented that he was "willing and able to work on Saturdays, Sundays and holidays" as well as "mandatory overtime." (Candidate Evaluation Sheet 3 (emphasis added)). Conversely, Plaintiff did not indicate that he would require any religious accommodations. (See id. ; see also Livingston Dep. 74:25-75:2). Plaintiff has since explained that he did not want to be "judged" for his observation of the Sabbath. (See Livingston Dep. 75:13-15 ("I just said I could work on the weekends. I didn't want to be judged on the fact that I couldn't work on Saturdays.")). He also opted not to wear his yarmulke during his interview. (Id. at 66:15-17).

After obtaining the position, Plaintiff began attending YDS's training program on August 6, 2018. (Def. 56.1 ¶ 16; see also Blair Decl., Ex. J at 1 ("Pl. Timesheets")). Plaintiff testified that he wore a necklace to work with a pendant of the Jewish letter "Chai." (Def. 56.1 ¶ 15). Although he was not told that he could not wear his yarmulke at work, he elected to keep it in his pocket or leave it in his locker. (Id. ; see also Livingston Dep. 64:24-66:14, 161:14-16). As part of Plaintiff's YDS training, he was told about ACS's Office of Equal Employment Opportunity ("EEO"), as well as the process for requesting a religious accommodation. (Def. 56.1 ¶ 17). The training also covered religious discrimination. (Id. ). Based on this training, Plaintiff understood that the process for requesting a religious accommodation involved "fill[ing] out the paperwork with the EEO and submit[ting] all the necessary documents." (Livingston Dep. 74:10-15).

The schedules Plaintiff kept during his training period, as well as his statements in this litigation about those schedules, are in some tension with his later accommodation requests. For example, from August 5, 2018, through August 25, 2018, Plaintiff worked Mondays through Fridays from 9:00 a.m. to 5:15 p.m. (Def. 56.1 ¶ 18; see also Livingston Dep. 74:19-20; Pl. Timesheets 1, 4, 8). When asked, Plaintiff explained that he did not make a request with the EEO for a religious accommodation during this period because he had not yet been given a permanent schedule. (Livingston Dep. 74:16-24). Of potentially greater significance, during the week of August 26, 2018, through September 1, 2018, Plaintiff worked Monday through Friday from 3:00 p.m. to 11:15 p.m. (Def. 56.1 ¶ 18; Pl. Timesheets 11). Plaintiff's schedule changed again the following week, the week of September 2, 2018, through September 8, 2018, and he worked Tuesday through Friday from 9:00 a.m. to 5:15 p.m. (Def. 56.1 ¶ 18; Pl. Timesheets 14). The Jewish holiday of Rosh Hashanah began on September 10, 2018, and ended on September 11, 2018. (Def. 56.1 ¶ 19). Plaintiff worked from 9:00 a.m. to 5:15 p.m. on September 10, 2018, and was scheduled to work the same shift the following day. (Id. ; Pl. Timesheets 17). However, Plaintiff did not come to work on September 11, 2018, and he was marked as being on unscheduled leave without pay ("LWOP"). (Def. 56.1 ¶ 19; see also Blair Decl., Ex. K at 2 ("Pl. Leave Requests Report")).

Plaintiff recounted that he started "on-the-job" training on September 18, 2018. (Livingston Dep. 85:13-15). At that time, he was given the 3:00 p.m. to 11:00 p.m. shift. (Id. ). According to Plaintiff, he emailed David Nunez, a training officer at ACS, on or about September 18, 2018, to request that he be assigned the 7:00 a.m. to 3:15 p.m. shift the following day, to allow him to observe the holiday of Yom Kippur. (Def. 56.1 ¶ 20).³ He also asked that he be assigned the same shift that Friday, September 21, 2018, explaining that he could not perform the night shift given that the Jewish Sabbath began at sundown. (Id. ). Plaintiff recalled that he did not hear back from Nunez. (See Dkt. #1 at ¶ 33). Plaintiff was scheduled to work on September 18 and 19, 2018; he did not come to work on those days and was marked "unscheduled LWOP." (Def. 56.1 ¶ 22; Pl. Leave Requests Report 2).

3. Plaintiff's Assignment to Crossroads

Following Plaintiff's participation in the ACS training program, he was assigned to Crossroads. (Def. 56.1 ¶ 23). Plaintiff's direct supervisor at Crossroads was Brian Barnes. (Id. at ¶ 24). Upon Plaintiff's initial assignment to Crossroads, on September 20 and 21, 2018, he worked from 7:00 a.m. to 3:15 p.m. (Id. at ¶¶ 25-26; see also Pl. Timesheets 21). On those two days, he was assigned to the Special Housing Unit ("SHU") (Def. 56.1 ¶¶ 25-26; see also Blair Decl., Ex. N at 1-2 ("Tour Logs")), which houses residents with medical conditions or mental health referrals (Def. 56.1 ¶ 25; see also Nedderman Dep. 107:5-107:9).

On Sunday, September 23, 2018, Plaintiff emailed Nunez to inquire about the status of his "permanent schedule." (Blair Decl., Ex. P at 2 (September 23, 2018 email from Plaintiff to Nunez)). He also explained that the next two days were the Jewish holiday of Sukkot, and that he had let EEO know that he would not be able to work. (Id. ).⁴ Nunez responded later that day that he would forward Plaintiff's email "to the folks [in] charge of scheduling." (Id. ). Nedderman testified that he discussed Plaintiff's request with Nunez, and that he granted the request because it was "not a schedule change," and because Nedderman was "allowed to grant days here and days there." (Nedderman Dep. 79:21-81:14). Plaintiff was marked "unscheduled LWOP" from September 23, 2018, through September 25, 2018. (Pl. Timesheets 25; Pl. Leave Requests Report 2).⁵ Plaintiff indicated in his leave requests report that he had taken the days off for "religious holidays" and that the "administration was aware" and "supervision [had] approved." (Pl. Leave Requests Report 2).

On September 25, 2018, Plaintiff again emailed Nunez that he had not yet received his permanent schedule. (Blair Decl., Ex. P at 2 (September 25, 2018 email from Livingston to Nunez)). Nunez added Nedderman to the email so that the latter could "provide some clarity" regarding Plaintiff's schedule. (Id. at 1). Nedderman...