Rivera v. EarlyBird Delivery Systems, LLC

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered March 27, 2013, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Plaintiff, who was employed by defendant delivery company, failed to show that defendant discriminated against him when it terminated him for failing to comply with its dress code. Defendant provided plaintiff with a company uniform that included a messenger bag with the company logo, and repeatedly advised plaintiff that he could not use his own bag, a black bag with religious writing on the outside, while working. Plaintiff did not inform defendant that he needed his bag in order to “passively evangelize” or for any other religious reason, rather, he insisted on carrying it without providing an explanation, despite defendant’s policy that its messengers could only carry the bag with defendant’s logo (see Engstrom v Kinney Sys., 241 AD2d 420, 422 [1st Dept 1997], lv denied 91 NY2d 801 [1997]). Plaintiffs failure to inform defendant of his reason for carrying his personal bag is fatal to his claim (see Ansonia Bd. of Ed. v Philbrook, 479 US 60, 65-66 [1986]; Chalmers v Talon Co. of Richmond, 101 F3d 1012, 1019 [4th Cir 1996], cert denied 522 US 813 [1997]). Plaintiff also failed to demonstrate a claim of religious discrimination under McDonnell Douglas Corp. v Green (411 US 792 [1973]), since he failed to demonstrate that the policy of carrying only one messenger bag as part of defendant’s requisite uniform applied only to him, and not all employees (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]). Moreover, even if plaintiff had established a prima facie case, defendant came forward with a legitimate, nonpretextual reason for discharging plaintiff from employment (see Ferrante v American Lung Assn., 90 NY2d 623, 629 [1997]). Concur — Mazzarelli, J.P., Friedman, Manzanet-Daniels, Clark and Kapnick, JJ.