22-2010-cv Billings v. Murphy

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 6th day of February, two thousand twenty-four.

PRESENT: DENNIS JACOBS, RAYMOND J. LOHIER, JR., WILLIAM J. NARDINI, Circuit Judges. ------------------------------------------------------------------ MAUREEN M. BILLINGS,

Plaintiff-Appellant,

v. No. 22-2010-cv

ROGER A. MURPHY, each sued in their respective official capacities with the State of New York and/or any of its agencies, and in their respective individual capacities; PAUL J. ARTUZ, each sued in their respective official capacities with the State of New York and/or any of its agencies, and in their respective individual capacities; DIANE CURRA, each sued in their respective official capacities with the State of 1 New York and/or any of its agencies, and in their respective individual capacities; NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, as a necessary party,

Defendants-Appellees,

STATE OF NEW YORK,

Defendant. ------------------------------------------------------------------

FOR APPELLANT: STEPHEN BERGSTEIN (Frederick Kevin Brewington, Law Offices of Frederick K. Brewington, Hempstead, NY, on the brief), Bergstein & Ullrich, New Paltz, NY

FOR APPELLEES: DENNIS FAN (Barbara D. Underwood, Judith N. Vale, on the brief), for Letitia James, Attorney General of the State of New York, New York, NY

FOR AMICUS CURIAE UNITED ANNA M. BALDWIN (Kristen STATES: Clarke, Tovah R. Calderon, Department of Justice, Civil Rights Division; Gwendolyn Young Reams, Jennifer S. Goldstein, Dara S. Smith, Gail S. Coleman, Equal Employment Opportunity Commission, on the brief), Department of Justice, Civil Rights Division, Washington, DC

2 Appeal from a judgment of the United States District Court for the

Southern District of New York (Nelson S. Román, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the District Court is AFFIRMED in part,

VACATED in part, and the case is REMANDED for further proceedings

consistent with this order.

Plaintiff-Appellant Maureen Billings appeals from an August 22, 2022

judgment of the United States District Court for the Southern District of New

York (Román, J.) dismissing her retaliation and religious discrimination claims

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and

against the State of New York, the New York State Department of

Corrections and Community Supervision (DOCCS), and several DOCCS

employees. We assume the parties’ familiarity with the underlying facts and the

record of prior proceedings, to which we refer only as necessary to explain our

decision to affirm in part, vacate in part, and remand for further proceedings.

BACKGROUND 3 The following background is drawn from Billings’s Second Amended

Complaint. On October 14, 2016, Billings, a corrections officer employed by

DOCCS and a practicing Muslim, requested to wear a hijab at work in

accordance with her religion, which requires women to wear a hijab in the

presence of men outside of their family. In mid-April 2017 DOCCS issued a

letter granting Billings’s request subject to certain conditions, including that her

hijab tear off easily if grabbed and that her hijab be checked for compliance by

the Deputy Superintendent of Security. 1 On or about April 28, 2017 Billings was

notified that she was approved to wear a hijab and began doing so immediately.

On May 2, 2017, Defendant Paul Artuz ordered Billings to report to his office to

discuss her accommodation. Artuz stated that Billings’s hijab needed to be 3

feet by 3 feet; when Billings asked Artuz to cite the authority for that rule, he

replied, “You can like it or take it off.” Joint App’x 23. After Billings cut down

her hijab outside of his presence and returned, Artuz said,

In order for you to wear your hijab into prison, you have three options. Option number one, you can take your hijab off, and go to your post and continue to work. Option number two, you can keep your hijab on and go home. That is your choice and your right. You

1 At all relevant times relevant to this appeal, Defendant Roger Murphy, a man, was the Deputy Superintendent of Security. 4 have to deal with the consequences. Option number three, you have to demonstrate that your hijab could be pulled off quickly without you being choked. After all we would not want an inmate to choke you.

Billings responded that she was willing to comply with the inspection so

long as it was performed in front of a female supervisor because her religion

prohibited her from removing her hijab in the presence of a man outside of her

family. Artuz demanded that Billings remove her hijab in front of him, as he

claimed that no female supervisors were available. Billings removed her hijab

in front of Artuz. After suffering an anxiety attack as a result of her interaction

with Artuz, she was sent home and told to fill out worker’s compensation

paperwork.

From May to August 2017 Billings was prohibited from returning to work

because Defendant Diane Curra mistakenly identified errors on the mental

health forms that Curra required Billings to complete before returning. On June

27, 2017, Billings was informed that she was removed from the payroll as of May

27, 2017. In August and September 2017 Billings filed several grievances with

various internal departments, as well as the New York State Department of

Labor, complaining about her treatment by Artuz and Curra. Billings was

5 finally permitted to return to work on December 7, 2017. From December 2017

to January 2020, Curra incorrectly marked her as absent without leave at least

nine times. Billings was also “repeatedly harassed, bullied, and ostracized” by

her colleagues. Joint App’x 34.

Billings brought this lawsuit in January 2019 claiming retaliation and

religious discrimination in violation of Title VII and the First and Fourteenth

Amendments under § 1983. The District Court granted Defendants’ motion to

dismiss all of her claims under Federal Rule of Civil Procedure 12(b)(6). Billings

appealed.

DISCUSSION

We review the District Court’s grant of the motion to dismiss de novo.

Alix v. McKinsey & Co., Inc.,

(2d Cir. 2022).

I. Retaliation Claims

To plead a prima facie retaliation claim under either Title VII or in a First

or Fourteenth Amendment retaliation case under § 1983, a plaintiff must allege

that “(1) she participated in a protected activity known to the defendant; (2) the

defendant took an employment action disadvantaging her; and (3) there exists a

causal connection between the protected activity and the adverse action.” 6 Patane v. Clark,

(2d Cir. 2007) (Title VII); see Shara v. Maine-

Endwell Cent. Sch. Dist.,

(2d Cir. 2022) (articulating the same

standard for First Amendment retaliation); Hicks v. Baines,

(2d

Cir. 2010) (analyzing Fourteenth Amendment retaliation under the Title VII

framework). Although “[i]t is, of course, true that temporal proximity can

demonstrate a causal nexus,” Slattery v. Swiss Reinsurance Am. Corp.,

(2d Cir. 2001), the temporal proximity must be “very close,” Clark Cnty. Sch.

Dist. v. Breeden,

(2001).

Billings identifies two instances of protected activity: her October 2016

hijab request and her August and September 2017 grievances. Even if Billings’s

October 2016 hijab request constitutes protected activity, the seven-month period

between her request and her dismissal is too attenuated to establish causation by

temporal proximity. See

Billings also does not adequately allege a causal

relationship between her grievances and the harassment she endured sometime

after returning to work in December 2017. We thus affirm the dismissal of the

retaliation claims.

7 II. Religious Discrimination Claims

Billings also brings claims for religious discrimination in violation of Title

VII and the First and Fourteenth Amendments under § 1983. Title VII makes it

unlawful for an employer “to fail or refuse to hire or to discharge any individual,

or otherwise to 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). “The term ‘religion’

includes all aspects of religious observance and practice, as well as belief, unless

an employer demonstrates that he is unable to reasonably accommodate . . . an

employee’s . . . religious observance or practice without undue hardship on the

conduct of the employer’s business.” Id. § 2000e(j). To survive a motion to

dismiss, “in an employment discrimination case, a plaintiff must plausibly allege

that (1) the employer took adverse action against him and (2) his race, color,

religion, sex, or national origin was a motivating factor in the employment

decision.” Vega v. Hempstead Union Free Sch. Dist.,

(2d Cir. 2015).

As the Defendants acknowledged at oral argument, the denial of a

reasonable religious accommodation absent a showing of undue hardship alters

the “terms, conditions, or privileges of employment,”

§ 2000e-2(a)(1), and thus 8 qualifies as an adverse employment action. Oral Arg. Tr. 27:9–20. We

conclude that the refusal to accommodate Billings’s request to remove her hijab

in front of a female supervisor constitutes an adverse employment action because

it is a “materially adverse change in the terms and conditions of employment”

that is “more disruptive than a mere inconvenience or an alteration of job

responsibilities.” See Vega,

(quotation marks omitted). Contrary

to the District Court’s holding, Billings was not required to allege an additional

adverse employment action, beyond the denial of her request for religious

accommodation, to plead a claim of religious discrimination. Because Billings

has adequately alleged an adverse employment action, and the Defendants do

not contend that Billings’s request for a female supervisor was unreasonable or

placed an undue burden on DOCCS, we vacate the District Court’s dismissal of

her discrimination claim arising from DOCCS’s refusal to grant her request.

The Defendants argue that Billings accepted the conditions in her

accommodation letter, including that she demonstrate to the Deputy

Superintendent of Security that her hijab would tear off if grabbed. We

disagree. As alleged, Billings timely rejected the condition that she remove her

hijab in front of a male, explained the conflict with her religious practice, and 9 requested a female supervisor, which can be construed as either a request for

modification to the original accommodation or a separate accommodation

request.

Finally, the District Court also erred in dismissing Billing’s religious

discrimination claim insofar as it was premised on the adverse action being her

dismissal, her removal from payroll, and the refusal to let her return to work,

rather than the May 2 denial of accommodation. The District Court concluded

that, although this series of events constituted adverse action, Billings did not

plausibly allege an inference of discrimination as to that theory. We disagree.

At the pleading stage, Billings is not required to plead more than a prima facie

case under the McDonnell Douglas framework. See Littlejohn v. City of New York,

(2d Cir. 2015). Billings alleges that she began wearing her hijab

on or around April 28, 2017, and that she was dismissed on May 2, 2017,

removed from payroll on May 27, 2017, and unable to return to work from May

to December 2017. Given Billings’s “minimal” burden at this stage, see

,

these allegations support a plausible inference of discrimination.

We have considered the parties’ remaining arguments and conclude that

they are without merit. For the foregoing reasons, the judgment of the District 10 Court is AFFIRMED in part, VACATED in part, and the case is REMANDED for

further proceedings consistent with this order.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

11