Cecil Lewis, as Administrator of the Estate of Stephanie Lewis v. New York City Transit Authority

March 31, 2014.

12 F.Supp.3d 418

United States District Court,

E.D. New York.

Cecil LEWIS, as Administrator of the Estate of Stephanie Lewis, Plaintiff,



No. 04–cv–2331 (SLT)(MDG).

Signed March 31, 2014.


Background: Muslim employee brought action against city transit authority, alleging religious discrimination in violation of Title VII, NewYork State Human Rights Law (NYSHRL), New York City Human Rights Law (NYCHRL), and under First and Fourteenth Amendments. Transit authority moved for summary judgment.

Holdings: The District Court, Townes, J., held that:

1 employee was not judicially estopped from asserting discrimination claims;

2 employee exhausted her administrative remedies with respect to Title VII claims;

3 material fact dispute as to whether authority’s proffered reason for rescission of employee’s reclassification was pretextual precluded summary judgment on religious discrimination claim;

4 material fact dispute as to whether authority’s policies had disproportionately adverse effects on Muslim women precluded summary judgment on disparate impact claim;

5 employee’s statements at meeting with authority officials constituted protected activity for purposes of Title VII retaliation claim;

6 employee sufficiently demonstrated causal connection between her protected activities and authority’s adverse employment actions; and

7 authority proffered legitimate, nonretaliatory reason for transferring employee.

Motion denied.

Attorneys and Law Firms

*426 Arthur Z. Schwartz, Advocates for Justice, Chartered Attorneys, Omar T. Mohammedi, Law Firm of Omar T. Mohammedi, New York, NY, for Plaintiff.

Kavita K. Bhatt, Richard Schoolman, New York Transit Authority, Brooklyn, NY, Rhonda J. Moll, Metropolitan Transportation Authority, NewYork, NY, for Defendants.


TOWNES, District Judge.

Substitute plaintiff Cecil Lewis, (“Mr. Lewis” or “plaintiff”), brings this action as administrator of the estate of former-plaintiff StephanieLewis, (“Lewis”), his deceased wife. Plaintiff alleges that the New York City Transit Authority (“the Transit Authority”) discriminated against Lewis, formerly a Transit Authority bus driver, on account of her religion by transferring her to a bus depot and de facto terminating her employment for refusing to remove, cover with a cap, or affix a logo to her khimar, which is a headscarf worn by some Muslim women. The amended complaint alleges violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; New York State and City Human Rights Laws, N.Y. Exec. Law § 290 et seq. (“NYSHRL”), N.Y.C. Admin. Code § 8–107 et seq. (“NYCHRL”); 42 U.S.C. § 1983; the First and Fourteenth Amendments of the U.S. Constitution; and Article 1, Sections 8 and 11 of the New York State Constitution. The TransitAuthority now moves for summary judgment. For the reasons set forth below, the Transit Authority’s motion is denied in its entirety.

Legal Standard

Summary judgment is appropriate only where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The role of the court is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir.2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A genuine issue of fact exists when there is sufficient “evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505. In determining whether there is a genuine issue of material fact, a court resolves all ambiguities and draws all justifiable inferences in favor of the non-moving party. Id. at 255, 106 S.Ct. 2505.

The Second Circuit has cautioned that “[w]here an employer acted with discriminatory intent, direct evidence of that intent will only rarely be available, so affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir.2010).

With that standard in mind, the pertinent facts, undisputed, or where disputed considered in plaintiffs’ favor, are as follows:


Factual Background1

The Transit Authority is the country’s largest mass transit agency, employing *427 about 45,000 people, including approximately 10,000 bus operators and 3,000 train operators. United States v. New York City Transit Auth., 04–CV–4237, 2010 WL 3855191, at *1 (E.D.N.Y. Sept. 28, 2010). Lewis, a Muslim–American woman, was hired as a bus driver by the Transit Authority in 1989. (Pl.’s 56.1 Stmt. ¶¶ 1–3.) She wore a khimar whenever she was in public, including at work. (Id. at ¶¶ 2–3.) When she was first hired, she provided a letter to her supervisors from her Imam explaining that her religion required that she keep all parts of her body except her face and hands covered. (Id. at ¶¶ 7–8.) Her khimar was the same color as her Transit Authority uniform, which consisted of blue pants and a blue shirt or sweater. (Id. at ¶ 9.) On her right sleeve, which was visible to passengers who boarded her bus, she wore a patch bearing the Transit Authority logo and a metal badge with her TransitAuthority identification number. (Id. at ¶¶ 10–13.)

Until 2003, Lewis wore her khimar every day without incident. She received positive performance evaluations and was never reprimanded on account of her khimar. (Id. at ¶ 5.) From March 2002 until February 3, 2003, she was out on medical leave. While on leave, a union representative contacted Lewis seeking documentation about her khimar. She and another Muslim bus driver, together, provided a letter from their Imam to the union representative, which the representative, in turn, provided to the Transit Authority’s General Superintendent Richard Dicciardello. (Pl.’s 56.1 Stmt. Ex. 1, December 10, 2008 Declaration of Stephanie Lewis (“Lewis Decl.”) ¶ 9.)

A. Transit Authority Headwear Policies Governing Bus Operators

The Transit Authority’s uniform policies, including those governing headwear, were published in regular “Bulletins.” The parties disagree about which policy governing bus drivers was in effect in February 2003. Lewis points to a Bulletin (Pl.’s 56.1 Stmt. Ex. 10) dated September 10, 2001, which was slated to expire on May 1, 2002, which states:

Depot logo caps are optional. Depot caps may only be worn with the bill of the cap facing forward.

(Pl.’s 56.1 Stmt. Ex. 10) (bolding in original). The Transit Authority’s attorney declares that: “According to the TA policy at that time, plaintiff could wear her khimar while operating a bus in passenger service but with a TA depot logo cap on top.” (Schoolman Decl. ¶ 8.) The TransitAuthority has not submitted any Bulletin or other written document supporting this contention.

The Transit Authority issued a Temporary Bulletin directed at bus drivers, dated April 28, 2003, which states:

Uniform hats/Depot logo caps. If an operator elects to wear any form of headwear, NYCT issued uniform hats, such as the depot logo caps, shall be *428 worn (with the bill of the cap facing forward).

(Pl.’s 56.1 Stmt. Ex. 11) (bolding in original).

On November 17, 2003, the Transit Authority issued an updated Permanent Bulletin applicable to bus drivers, which is the earliest document submitted to the Court by the parties that expressly discusses religious headwear. The detailed policy directs managers to strictly enforce the Transit Authority’s policies, including the headwear policy, and to command any employee who refuses to cover his or her non-compliant headwear with a “depot logo cap” for religious reasons to “immediately visit the Depot AGM[ ] to discuss the matter.” (Pl.’s 56.1 Stmt. Ex. 12 at 2.)

B. February 12, 2003 Transfer to Bus Depot

On February 6, 2003, when Lewis returned from medical leave, she was told at a required refresher training class “in a loud voice and rude tone” that her khimar violated the Transit Authority’s headwear policy, and she was required to either remove it or cover it with a hat. (Lewis Decl. ¶ 11) When she refused to either remove or cover her khimar, she was asked to leave the training. Later that day, she met with Dicciardello and a union representative. At that meeting, she was told that a “new” Transit Authority policy required her to either remove her khimar or wear a baseball hat that read “Flatbush Depot Brooklyn Division” over her khimar. (Id. at ¶¶ 13–14; see also Pl.’s 56.1 Stmt. Exs. 2–4, Jan. 26–27, 2005 & Nov. 16, 2005 Deposition of Stephanie Lewis (“Lewis Dep.”) at 118–19.) Although Lewis requested to see the new policy, she was never provided with any documentation of the policy effective in February 2003. (Pl.’s 56. 1 Stmt at ¶ 33.)

On February 11, 2003, Lewis’s first day back as a bus driver, dispatcher Richard Herman boarded Lewis’s bus and issued Lewis a “Violation of Rules” for wearing “improper unauthorized headgear” and “refus[ing] to put proper headwear on.” (Lewis Decl. ¶¶ 17–19.) Herman testified that he was directed by his supervisor to check on Lewis and that he did not want to issue a violation but that “they were forcing [him] to give her a violation.” (Pl.’s 56.1 Stmt. Ex. 67 51:21–53:12.)

The next day, February 12, 2003, Lewis again reported to work wearing her khimar and not wearing a Transit Authority baseball hat on top of it. Rather than be permitted to work, she was directed to again meet with Dicciardello, a union representative, and another Transit Authoritysupervisor. At that meeting, she was again directed to remove her khimar or cover it with a hat. When she refused and explained that “doing so would violate my [Lewis’s] religious beliefs,” she was told she would no longer be permitted to work in “passenger service,” i.e., in view of passengers. (Lewis Decl. ¶ 20.)

That day (February 12, 2003), Lewis was involuntarily transferred from her position as a bus driver and reassigned to work in the bus depot where the headgear policy did not apply because she would be out of the view of passengers. There, she worked with three other female Muslim bus operators who were transferred to the depot after refusing to remove or cover their khimars—Malikah Alkebulan, Deirdre Small, and Gladys Muhammad (a/k/a Gladys Wilson). (Pl.’s 56.1 Stmt. Ex. 55 ¶ 16(d); United States v. New York City Transit Auth., 04–CV–4237, 2010 WL 3855191, at *3 (E.D.N.Y. Sept. 28, 2010)). A Sikh subway train operator who refused to remove his turban was also transferred out of “passenger service.” (Pl.’s 56.1 Stmt. Ex. 55 ¶ 20.)

*429 Plaintiff contends that other bus operators who violated the Transit Authority’s headwear policy were not monitored or disciplined in the same manner as Lewis and other female Muslim bus drivers. For example, “after the terrorist attacks of September 11, 2001, many bus operators began wearing FDNY hats to work on a regular basis and continued to do so until mid– to late–2002 … [and were never] harassed, monitored or written up by [Transit Authority] supervisors.” (Pl.’s 56.1 Stmt. ¶ 25.) Moreover, a study conducted by the United States Department of Justice (“DOJ”) revealed, over 11 hours of observation, “more than 300 instances of TA uniformed employees … openly violating TA uniform policies. Significantly, 208 TA subway and bus employees were observed working in passenger service wearing head coverings with no visible TA logo or patch, including 103 Russian-style winter hats, 62 knit hats (plain and with brand logos, such as North Face and Columbia Sportswear), six NY Yankees/Mets hats, a variety of baseball hats (including 13 plain, one with an eagle logo, and one with a New York City skyline patch[),] three head bands, eight conductor-style hats, one beret, two kufis, one head scarf/“doo rag” and one fur hat[.]” (Pl.’s 56.1 Stmt. Ex. 95 at 2.)

At the bus depot, Lewis was initially assigned janitorial tasks and then given the task of “shifting” empty buses between depots throughout the cityand vacuuming the fare boxes. As a result, she was deprived of seniority—a benefit that accrues to Transit Authority employees and allows them to control their shifts, hours, routes, and access to overtime. (Pl.’s 56.1 Stmt. ¶¶ 45–47.) With more than 13 years’ seniority as a bus driver, Lewishad had significant control over her schedule and routes. Once transferred, she lost the benefit of her seniority, and with it, control of her schedule, access to her preferred bus routes, and overtime. (Id.) As a result, she also lost approximately 10–20 hours of overtime pay per week. (Id.; Decl. of Authur Z. Schwartz, General Counsel of Local 100 at ¶ 6.)

Lewis described working in the bus depot as “stressful, hectic and unpredictable;” she performed janitorial tasks such as washing windows and cleaning buses—tasks not typically performed by bus drivers. (Lewis Decl. ¶¶ 27–28.) The bus depot was “full of noxious fumes.” (Id. at 33.) Additionally, her supervisors told her that her colleagues were resentful of her because her position was created by taking away overtime opportunities from other Transit Authority employees. (Id. at ¶ 32.) Lewis was required to sign in and out of work on sign-in sheets that were made only for female Muslim employees when she arrived, took a meal break, or left work, while non-Muslim bus operators were not subjected to this requirement. (Id. at ¶ 29.) She also was required to seek permission for bathroom breaks—a requirement reserved only for her. (Id.) In July 2003, supervisor Billy Pellitier told her that she and other Muslim women were assigned less desirable janitorial tasks and not permitted to select their tasks, as other employees at the depot were permitted to do, because they made a choice to work in the depot by refusing to compromise their religious beliefs. (Pl.’s 56.1 Stmt. at ¶ 57.) On October 24, 2003, in the presence of other Transit Authority employees, a dispatcher named Benny Pecorino, told Lewis that she should “work at Wendy’s because ‘they wouldn’t mind that rag on [her] head.’ ” (Lewis Decl. ¶ 31.)

C. April 3, 2003 Union Grievance

Lewis filed a grievance with Amin Khan, Vice President of the Transit Workers Union 100 on April 3, 2003 against a supervisor, Steve LoPiano, at the bus depot for *430 harassment, humiliation, retaliation, and hostile work environment. (Pl.’s 56.1 Stmt. ¶ 55.) Plaintiff does not indicate whether LoPiano’s conduct was motivated by religious animus, and she has not submitted a copy of the grievance. Plaintiff contends that the Transit Authority did not remedy the situation and she continued to be subject to harassment. (Id.)

D. October 27, 2003 Injury and October 27, 2004 Reclassification as a Station Agent

On October 27, 2003, Lewis tripped over a fare box hose while cleaning a bus and sustained serious injuries. (Lewis Decl. ¶ 38.) As a result, she was unable to perform her duties and took a medical absence. (Id.) She was notified that she would be terminated after a one-year cumulative absence on October 27, 2004, unless she returned to work or sought reclassification. (Pl.’s 56.1 Stmt. Ex. 22.) On September 17, 2004, Lewissought reclassification, and, after completing a medical examination, on October 27, 2004, she was notified that she was qualified for the position of “Station Agent,” working in a token booth, but there were no vacancies available. (Lewis Decl. ¶ 45.)

E. Station Agent Bulletins dated November 15, 2004 and March 29, 2005

Shortly after Lewis received notice that she could be reclassified as a station agent and return to work, a Bulletin, dated November 15, 2004, was issued which states the following:

All Division of Stations’ employees are hereby advised that uniform options have been expanded to include garments in uniform color that can be worn as turbans or khimars and can be used as substitutes for the TA issued cap. No other headwear is required over these garments and they are permitted to be worn in customer service. The headscarf khimar garment will come with an MTA logo already affixed to it. The larger garment (that can be worn as a turban) will come with an MTA logo to be pinned to it when the wearer is in customer service.

The bulletin does not indicate where the Transit Authority logo is affixed on the khimar. (Schoolman Decl. ¶ 3 and Ex. O). This policy was reiterated in a “Uniform Dress Code” Bulletin dated March 29, 2005. The Bulletin states that:

Only NYCT issued uniform hats, or other specified NYCT-issued or NYCT-approved headwear shall be worn. Alternatively, a uniformed employee may wear … [a] headscarf or khimar made of NYCT-provided blue cotton fabric with an assigned logo affixed to the front, in center…. Managers and Supervisors must monitor this directive for strict compliance.

(Pl.’s 56.1 Stmt. Ex. 16 at 3.) The Bulletin also includes a black and white illustration of a woman wearing a khimar with a circular patch reading “MTA” affixed to the part of her khimar that covers her forehead. Id. at 4. Lewis contends that this was the first time she learned that the TransitAuthority logo affixed to her khimar would have to be placed on her forehead. (Pl.’s 56.1 Stmt. ¶ 75.)

F. December 14, 2004 Social Security Disability Application

After learning that there was no position for her as a station agent and because she was unable to perform her job in the depot, Lewis submitted an application for Social Security Disability Insurance (“SSDI”) on December 14, 2004. (Lewis Decl. ¶ 66; Pl.’s 56.1 Stmt. Ex. 45.) In her application, she stated that she was a bus operator and suffered an injury rendering *431 her unable to continue that work. (Id.) Specifically, she stated that as of October 28, 2003, “back pain, hip pain, thigh pain, diabetes, [and] sleep problems” limit her ability to continue her work, i.e., “driv[ing] a bus,” because “activity increases my symptoms.” (Pl.’s 56.1 Stmt. Ex. 45 at 2.) On April 19, 2005, the Social Security Administration awarded Lewis$1,418.00, monthly. (Pl.’s 56.1 Stmt. Ex. 47.)

G. April 2005 Station Agent Position

On February 18, 2005, the Transit Authority conducted a second medical evaluation of Lewis and again found her medically qualified for reclassification to station agent. (Pl.’s 56.1 Stmt. ¶ 68.) A station agent position was now available. (Id.)

Lewis began a nineteen-day training program to reclassify as a station agent on April 4, 2005. (Id. at ¶ 74.) Superintendent Yolande Tonge was instructed to monitor Lewis’s compliance with the headwear policy. (Id. at ¶ 82.) During the training, Lewis was repeatedly asked by Tonge and other supervisors to affix a Transit Authority logo to the part of her khimar that covers her forehead. and Lewis repeatedly refused, explaining that, per her religious beliefs, placing anything on the part of her khimar that covers her forehead would interfere with her prayers, during which she must touch her forehead to the ground. (Id. at ¶ 77; Pl.’s 56.1 Stmt. Ex. 32; Lewis Decl. ¶ 50.) On April 27, 2005, while in a booth during field training, Tonge yelled at Lewis in front of other Transit Authority employees for not wearing the Transit Authority logo on her forehead. (LewisDep. 331:18–332:11; Pl.’s 56.1 Stmt. ¶ 83.) Lewis was sent home for the rest of the day for refusing to remove her khimar or affix a TA logo to it. (Lewis Dep. at 334:16–23.)

On April 28, 2005, Lewis completed her training and was certified as a station agent. (Id. at 349:2–13.) The following day, on April 29, 2005, when Lewis arrived for her first shift as a station agent, she did not have a Transit Authority logo affixed to her forehead. (Pl.’s 56.1 Stmt. at ¶ 87.) Transit Authority officials immediately tendered a letter terminating her from her station agent position and transferring her back to her position as a bus driver even though they were aware she was medically unable to perform that job. (Id.) The letter explains that: “… you were unable to comply with all aspects of the Station Agent position, including NYC Transit’s uniform policy. You have not stated that you cannot comply with that policy. As such, you have not met the conditions for reclassification[,] … your reclassification will be rescinded and you will be returned to your permanent title, Bus Operator….” (Pl.’s 56.1 Stmt. Ex. 34.) All of Lewis’s medical and healthcare benefits were cancelled as of April 2005, following her April 29, 2005 “termination.” (Pl.’s 56.1 Stmt. ¶ 111.)

H. June 14, 2005 Termination

After rescinding Lewis’s reclassification as a station agent, the Transit Authority conducted yet another medical evaluation for the purposes of reclassifying Lewis on June 3, 2005. (Pl.’s 56.1 Stmt. ¶ 99.) A June 6, 2005 “RW/Reclassification Title Transfer Form” indicates that Lewis was not medically qualified for reclassification to another position at the Transit Authority, although it does not state whether she could have served as a station agent. (Decl. of Suzanne L. Lim, M.D., Ex. A at 5.)

On June 14, 2005, the Transit Authority sent Ms. Lewis a notice of termination, which provides, in part, the following:

On April 29, 2005, your reclassification to the title of Station Agent was rescinded based on your stated unwillingness to *432 comply with all the conditions of reclassification to that title. On June 6, 2005, as a result of a second reclassification medical examination, you were found medically unqualified for reclassification to another title.

Accordingly, you are hereby notified that … your employment has been terminated effective June 6, 2005….

(Pl.’s 56.1 Stmt. Ex. 38.) At the time Lewis was terminated, she had already commenced the instant action, which was in arbitration. Lewis was “rehired” at the direction of the arbitrator on “unpaid status” and without any benefits. (Pl.’s 56.1 Stmt. ¶¶ 103, 107–108) The parties agree that, as of August 8, 2005, Lewis was “unterminated,” but without any responsibilities and without pay. (Id.) Her benefits were not restored and she never received another paycheck. (Id. at ¶ 111.)

Lewis died on February 25, 2012. (Id. at ¶ 114.)

Shortly after her death, the Kings County Surrogates Court granted the appointment of her husband, Cecil Lewis, as administrator of Lewis’s estate. (Id. at 131.) The Surrogates Court extended the Letters of Temporary Administration to August 13, 2013. (Pl.’s 56.1 Stmt. Ex. 91.)2

Procedural History

A. Equal Employment Opportunity Commission Charge of Discrimination

Lewis filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on December 4, 2003. In the box for the earliest date of discrimination, Lewis wrote “February 5, 2003 to Present.” An attached addendum reads, in relevant part:

I have been employed by Respondent since March 27, 1989 … [as a] Bus Operator. My performance evaluations have always been without incident.

On February 6, 2003, I returned to work after having been on disability leave. I attended a required … recertification course … [where] I was approached by Superintendent Curan about my Khimar … [and told] that I would have to remove my Khimar or where [sic ] the hat issued by Respondent…. Later on February 6, 2003, I met with General Superintendent Richard Dicciarello and Union Chair person Althea Carter … [who] stated that I would not have to wear the issued hat while in class, however I would be required to wear it while driving the bus. Dicciarello gave me a hat to wear over my Khimar [and] told me if it didn’t fit he’d have me fitted for one that did. I asked if there was any documentation available about the hat….

I reported to work on February 11, 2003[.] Dispatcher Richard Herman boarded the bus I was operating [and] … stated that he was sent out to see if I was wearing the hat and I was not. I was written up … for not wearing the hat.

[On] February 12, 2003[,] I reported to work and Dispatcher Horseford asked me to take a seat until Dicciarello arrived. A meeting was held with Dicciarello, Carter and Vice Chairperson of the Flatbush depot Carlos, they informed me that I would be removed from driving the bus for not wearing the issued hat. Since February 12, 2003 I have not been allowed to drive a bus where I am picking up passengers.

*433 I believe I have been discriminated against based on my sex, female and religion (Muslim) in that I have experienced disparate treatment as a Muslim female by Respondent. Despite Respondents [sic ] contention that the issued hat is optional, Muslim females are the only individuals made to wear the optional hat. Based on my own information and belief there are male Bus Operators that do not where [sic ] the issued hats.

(Pl.’s 56.1 Stmt. Ex. 43.) On her EEOC Intake Questionnaire, Lewis also stated that she was harmed on “2–5–2003.” (Pl.’s 56.1 Stmt. Ex. 42.)

On March 4, 2004, the EEOC found that her claims were untimely. (Pl.’s 56.1 Stmt. Ex. 46.) Her attorney wrote a letter to the EEOC, dated March 12, 2004, explaining that her claims were not untimely because her adverse employment action—being removed from driving a bus based on her religious beliefs and gender—took place on February 12, 2003 and her EEOC charge was filed on December 4, 2003 “well within the required 300 day[s].” (Pl.’s 56.1 Stmt. Ex. 44 at 2.)

B. Instant Lawsuit

On June 4, 2004, Lewis commenced this action and filed a complaint. On March 23, 2006, Lewis filed her amended complaint alleging discrimination in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. S 2000e et seq.), New York State and City Human Rights Laws, and under the First and Fourteenth Amendments of the U.S. Constitution, on account of her religion when the Transit Authority (1) on February 12, 2003, removed her from passenger service duties to the bus depot for refusing to remove or cover her khimar and (2) on April 29, 2005, denied her reclassification as a Station Agent when she refused to remove or cover her khimar or affix a Transit Authority logo to her forehead.3

C. Related Actions

A number of other Muslim women, a Sikh man, and the DOJ brought suits in this Court challenging the Transit Authority’s policies on religious headwear. See Small and Alkebulan v. New York City Transit Auth., Dkt. No. 03–CV–2139 (SLT); Muhammad v. New York City Transit Auth.,Dkt. No. 04–CV–2294 (SLT); United States v. New York City Transit Auth., Dkt. No. 04–CV–4237 (SLT); Harrington v. Reuter, Dkt. No. 05–CV–3341 (SLT). Final judgment has been entered in all of these actions except Muhammad v. New York City Transit Auth., Dkt. No. 04–CV–2294 (SLT).

D. Instant Motion for Summary Judgment

The Transit Authority now moves for summary judgment asserting a cornucopia of arguments, each of which is discussed in detail below. In brief, it asserts that it is entitled to judgment as a matter of law on Lewis’s claims arising out of her involuntary transfer to the bus depot and de facto termination from the position of station agent because the claims were not timely brought before the EEOC and otherwise fail as a matter of law. The Transit Authority also brings a host of miscellaneous arguments, arguing that judicial estoppel results from Lewis’s SSDI application, seeking a cut-off for damages in light of Lewis’s medical disqualification, and alleging *434 that Lewis failed to mitigate damages.4 Plaintiff responds that Mr. Lewis is a proper party, that plaintiff has established a prima facie case of disparate treatment, failure to accommodate, disparate impact, retaliation, and violations of the First Amendment Free Exercise and Free Speech clauses. For the following reasons, the TransitAuthority’s motion is denied in its entirety.


I. Judicial Estoppel

The Transit Authority argues that plaintiff is judicially estopped from asserting claims arising out of Lewis’s termination as a station agent. (Def.’s Br. at 10.) It contends that by applying for SSDI, Lewis represented to the Social Security Administration that she was “unable to do any ‘substantial gainful work … in the national economy,’ ” (Def.’s Br. at 10, citing 42 U.S.C. § 423(d)(2)(A)), and now cannot take the contrary position, in this litigation, that she was qualified to work as a station agent.

12Judicial estoppel generally prevents a party who has assumed a certain position in a legal or administrative proceeding from thereafter assuming a contrary position. It applies to sworn statements made to administrative agencies, such as the Social Security Administration in SSDI proceedings. Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 802, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999). However, “the mere fact that a plaintiff files for social security benefits (and thus, represents herself to be disabled) does not create a presumption that she is unable to perform the essential functions of her job….” DeRosa v. Nat’l Envelope Corp., 595 F.3d 99, 103 (2d Cir.2010). Rather, the doctrine only constrains a party from taking a position that is “clearly inconsistent” with its earlier position. Id. It has no application where apparently conflicting statements can be reconciled. Compare id. at 102–04 (holding that the plaintiff’s factual statements about what he could and could not do on his SSDI application did not contradict his assertion in a lawsuit that he could work with a reasonable accommodation); with Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 7 (2d Cir.1999) (holding that the plaintiff was precluded in a lawsuit from asserting that he could walk and stand when he had asserted to the Social Security Administration that he could not walk or stand). The Second Circuit has cautioned that “a court must carefully consider the contexts in which apparently contradictory statements are made to determine *435 if there is, in fact, direct and irreconcilable contradiction.” Rodal v. Anesthesia Group of Onondaga, 369 F.3d 113, 119 (2d Cir.2004).

3Here, there is no direct and irreconcilable contradiction. Lewis represented in her SSDI application that due to “back pain, hip pain, thigh pain, diabetes, [and] sleep problems,” (Pl.’s 56.1 Stmt. Ex. 45), she was unable to work as a bus driver. She made no mention of whether she could work as a station agent. Thus, judicial estoppel does not bar her from asserting claims for discriminatory rescission of her station agent position.

II. Lewis’s Alleged Failure to Mitigate Damages

4The Transit Authority argues that Lewis‘ claims arising out of the Transit Authority’s refusal to allow her to work as a station agent are barred by her failure to mitigate damages after the Transit Authority rescinded her reclassification to Station Agent on April 29, 2005 and subsequently terminated her from her position as a bus driver because she was medically disqualified from performing that job. (Def.’s Br. at 11.) This position is baffling in light of the Transit Authority’s contention that Plaintiff was “employed” by the Transit Authority until her death. As the Transit Authority explains, “[b]ased upon a directive by Richard Adelman, the arbitrator in a related matter, the [June 14, 2005] termination of Ms. Lewis’s employment was rescinded by letter, dated August 8, 2005; and until her death in 2012, Ms. Lewis remained in the title of bus operator at the [Transit Authority], although she never again performed actual work at the [Transit Authority].” (Def.’s Br. at 7.) Since Lewiswas “employed” by the Transit Authority, she had no obligation to mitigate her damages by seeking additional employment.5

III. Lewis’s Alleged Failure to Comply with EEOC Requirements

A. Timely EEOC Charge

5“Exhaustion of administrative remedies through the EEOC is an essential element of the Title VII … statutory scheme[ ] and, as such, a precondition to bringing [a Title VII claim] in federal court.” Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir.2001) (per curiam). The purpose of the exhaustion requirement—namely, to encourage settlement of discrimination disputes through conciliation and voluntary compliance—would be defeated if a plaintiff could litigate a claim not previously presented to the EEOC. See Miller v. Int’l Tel. & Tel.,755 F.2d 20, 26 (2d Cir.1985). *436 Accordingly, failure to file a timely administrative charge with the EEOC extinguishes the claim and prohibits recovery. In New York, which has both state and local fair employment agencies, an individual who initially files a grievance with the state or local agency must file a charge with the EEOC within 300 days “after the alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e–5(e)(1). Failure to file an administrative charge with the EEOC within the 300 days extinguishes the claim and prohibits recovery. Butts v. New York Dep’t of Hous. Preservation & Dev., 990 F.2d 1397, 1401 (2d Cir.1993).

6The Transit Authority argues that Lewis’s EEOC charge of discrimination, filed 295 days after she was transferred to the bus depot on February 12, 2003, is time barred because, although it is dated December 4, 2003, the “Notice of Charge of Discrimination” that the TransitAuthority received from the EEOC was dated December 10, 2003. (Moll Decl. Ex. E.) Alternatively, the Transit Authority seems to argue that Lewis could not have filed her charge, ending in the digits ′673 on December 4, 2003 because the Transit Authority received a charge of discrimination from a different employee, dated December 10, 2003, ending in sequentially lower digits: ′672. This, the Transit Authority argues, “indicat[es] that Ms. Lewis’s charge was received by the EEOC after it received [the other employee’s] charge on December 10, 2003….” (Def.’s Br. at 18.) It is clear from the record that Lewis filed her EEOC charge of discrimination on December 4, 2003. Not only is her charge of discrimination dated December 4, 2003, but an Intake Questionnaire signed by EEOC Investigator is also dated December 4, 2003. (Pl.’s 56.1 Stmt. Exs. 42, 43.) The Transit Authority has not introduced any evidence suggesting that another employee’s charge number is, in any manner, probative of when Lewis filed her charge with the EEOC. Accordingly, Lewis’s charge of discrimination based on her reassignment to the bus depot was timely filed with the EEOC.

B. Reasonably Related

The Transit Authority argues that, even if her charge was timely filed, Lewis’s failure to file a second charge to exhaust the April 29, 2005 rescission of her reclassification as Station agent and concomitant transfer back to the bus depot renders her claims arising out of those actions unreviewable.

7A district court may only review Title VII claims that were either contained in the EEOC charge or are reasonably related to claims in the charge. Legnani, 274 F.3d at 686. “Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable ‘unlawful employment practice,’ ” and “each discriminatory act starts a new clock for filing charges alleging that act.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).

8In Butts, the Second Circuit recognized three circumstances in which claims not explicitly raised in an EEOC charge could nonetheless be considered by a district court. 990 F.2d at 1402.6 Only the third is relevant here.7 It arises “where a plaintiff alleges further incidents of discrimination *437 carried out in precisely the same manner alleged in the EEOC charge.” Id. at 1402–03 (citing Almendral v. N.Y. State Office of Mental Health, 743 F.2d 963, 967 (2d Cir.1984)). The Second Circuit explained:

Such an incident might not fall within the scope of the EEOC investigation arising from the charge, since it might occur after the investigation was completed … [h]owever, the values associated with exhaustion are not entirely lost because the EEOC would have had the opportunity to investigate, if not the particular discriminatory incident, the method of discrimination manifested in prior charged incidents. The fact that a charge alleging the same method was not resolved by the EEOC to the plaintiff’s satisfaction makes it more likely that a new charge alleging the later incident would meet the same fate. Our holding that such conduct is ‘reasonably related’ implicitly recognizes the cost to a plaintiff of requiring exhaustion in circumstances where the likelihood of a successful settlement is limited.

Id. at 1403. In Almendral, in which plaintiff alleged that she was passed over for promotions on numerous occasions on account of her race, the Second Circuit held that incidents that occurred after plaintiff had filed her EEOC charge were “essentially the same” as the conduct identified in her EEOC complaint, even though the incidents involved different schemes to exclude plaintiff from consideration, ranging from deflated performance reviews to delays in adding her name to ‘promotion-ready’ lists, because they all involved the “alleged manipulation of the civil service rules for discriminatory reasons in order to appoint someone other than [plaintiff].” Almendral, 743 F.2d at 967; see also Hinton v. CityColl. of New York, 05 CIV. 8951(GEL), 2008 WL 591802, at *14 (S.D.N.Y. Feb. 29, 2008) (explaining that plaintiffs should not be prevented “from raising … functionally identical issues in their lawsuit … simply by slight[ ] var[iations in] the exact means of discrimination. That an employer uses different pretexts to [discriminate against a plaintiff] year after year as part of a regular policy of discrimination does not require the victim to file repeated EEOC charges and repeated separate lawsuits.”)

9The Transit Authority contends that Lewis was required to lodge a second charge of discrimination with the EEOC when the TransitAuthority rescinded her station agent reclassification. However, the first charge of discrimination that she lodged with the EEOC alleged an incident of discrimination—transfer to the bus depot for refusing to remove or cover her khimar—that was carried out in “precisely the same manner,” i.e., Lewis was ready to perform her duties, wearing her khimar, and rather than permit her to work in a position in which she might be seen by the Transit Authority’s customers, she was sent to work at the bus depot. Just because the mechanism for this transfer—first an intra-department transfer and then rescission of reclassification—differs slightly, does not alter this Court’s analysis. Accordingly, Lewis’s claims are timely and properly exhausted, and summary judgment on these grounds is denied.

IV. Plaintiff’s Title VII, NYSHRL and Equal Protection Claims Do Not Fail as a Matter of Law

Plaintiff complains of four distinct types of discriminatory treatment—disparate *438 treatment, disparate impact, failure to accommodate, and retaliation—in violation of Title VII, NYSHRL and Equal Protection.

Title VII prohibits employment discrimination on the basis of, inter alia, religion. Specifically, an employer may not “fail or refuse to hire or … discharge any individual, or otherwise … discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … religion,” 42 U.S.C. § 2000e–2(a)(1), or “limit, segregate or classify” an employee in a way that would “adversely affect his status as an employee,” because of that employee’s “religion.” 42 U.S.C. § 2000e–2(a)(2), § 703(a)(2). It “prohibits both intentional discrimination (known as ‘disparate treatment’) as well as, in some cases, practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as ‘disparate impact’).” Ricci v. DeStefano, 5