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SHABAT v. BLUE CROSS BLUE SHIELD OF THE ROCHESTER

May 15, 1996

MOSHE SHABAT and AGNES SHABAT, Individually and on Behalf of Her Minor Children, TALIA SHABAT and JONATHAN SHABAT, Plaintiffs,
v.
BLUE CROSS BLUE SHIELD OF THE ROCHESTER AREA, et al., Defendants.



The opinion of the court was delivered by: LARIMER

 Plaintiff, Moshe Shabat, an employee of defendant Blue Cross/Blue Shield of the Rochester Area ("Blue Cross"), brings this action against Blue Cross and several employees of Blue Cross. Plaintiff, an Israeli-born Jew who maintains dual American and Israeli citizenship, alleges that he has been discriminated against on account of his national origin, religion, and hearing impairment. Plaintiff also alleges that defendants have retaliated against him because of his complaints of discrimination. Defendants have moved for summary judgment.

 PROCEDURAL BACKGROUND

 The original complaint asserted causes of action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the New York State Human Rights Law ("HRL"), N.Y. Exec. L. § 296. The complaint also contained claims by plaintiff's wife and children for loss of consortium and loss of parental services.

 On April 10, 1995, I granted in part and denied in part defendants' motion to dismiss the complaint or in the alternative for partial summary judgment. I dismissed plaintiff's Title VII claim against the individual defendants and the claims by plaintiff's wife and children. I also dismissed plaintiff's ADA claim, but granted plaintiff leave to amend his complaint to assert a claim against Blue Cross only under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-796. I denied defendants' motion to dismiss plaintiff's HRL claim without prejudice.

 Plaintiff then filed an amended complaint. *fn1" The complaint *fn2" asserts three causes of action. The first is under Title VII, and alleges that plaintiff has been discriminated against on account of his national origin and religion. Plaintiff alleges that he has been subjected to a hostile work environment and that he has been denied equal employment opportunities. Plaintiff also alleges that he has been retaliated against for complaining about these acts of discrimination. *fn3" The facts underlying these claims were set out at some length in my prior decision, familiarity with which is assumed.

 The second cause of action is brought against Blue Cross under the Rehabilitation Act. Plaintiff alleges that he has been harassed and denied equal employment opportunities because of his hearing disability.

 The third cause of action is brought against Blue Cross and the five individual defendants under the HRL. Plaintiff alleges that he has been discriminated against because of his national origin, religion, and disability, and that he has been retaliated against because of his complaints of discrimination, all in violation of the HRL.

 DISCUSSION

 I. Hostile Work Environment

 As stated, plaintiff's claims of discrimination (as opposed to retaliation) fall into two factual categories: claims that he was subjected to a hostile work environment, and claims that he was denied equal employment opportunities.

 Liability based on a hostile work environment exists when "the [plaintiff's] workplace is permeated with 'discriminatory intimidation, ridicule, and insult,' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment' ..." Harris v. Forklift Sys., Inc., 126 L. Ed. 2d 295, 114 S. Ct. 367, 370 (1993) (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986)). To establish this claim, however, the plaintiff "must prove more than a few isolated incidents of [discriminatory] enmity. Casual comments, or accidental or sporadic conversation, will not trigger equitable relief pursuant to the statute." Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir. 1986) (citations omitted).

 In the case at bar, plaintiff bases his hostile-work-environment claim on an a series of alleged incidents occurring between the Spring of 1988 and early 1992. In general these events fall into three categories: incidents involving either explicit or implicit references to plaintiff's religion or national origin; incidents that plaintiff believes were implicitly related to his hearing impairment, none of which involved direct references to his impairment; and incidents in which plaintiff alleges he was harassed or treated unfairly, but which do not involve any even veiled references to his national origin, religion, or hearing impairment.

 The first category generally involves comments from coworkers that plaintiff alleges were derogatory and based on his religion and national origin. For example, the first incident alleged, in the Spring of 1988, was a comment by a coworker, Tom Napier, asking Shabat whether "people from the Mideast beat their wives." In August 1989, defendant Douglas Heywood, who was then Shabat's supervisor, allegedly asked Shabat, "How come you cannot accept Jesus Christ as the messiah, the son of God? After all, he was a Jew." In October 1989, Heywood granted Shabat's request for a personal holiday on Yom Kippur, but allegedly told Shabat that he "approved the day even though there is no such holiday."

 In February or March 1991, plaintiff and Heywood met with defendant Pat Morrison, the Human Resources Manager at Blue Cross, to discuss Shabat's continuing problems with Heywood. Morrison allegedly stated at the meeting that "Israelis are blunt, direct, candid and honest people," and that Americans "cannot handle Moshe's brand of honesty."

 Another incident occurred in April 1991, during Passover. Shabat brought some "matzah cake" to share with his coworkers. Another employee, Frank Billotti, allegedly asked Shabat, "Who did you have to kill to make it?" Plaintiff claims that this was an allusion to a once-common myth spread by anti-Semites that Jews killed children and used their blood when baking matzah for Passover. Plaintiff alleges that Heywood was present when Billotti made this remark and did nothing. When plaintiff complained to Heywood, Heywood told him that Billotti was only joking.

 The incidents relating to plaintiff's hearing involve a few occasions when Heywood allegedly criticized Shabat for speaking too loudly. Plaintiff states that he tends to speak loudly at times because of his hearing impairment. Plaintiff also alleges that at one point he was assigned to work in an office where there was a lot of background noise, which made it more difficult for him to hear, which in turn made him speak loudly.

 The third category of incidents are those in which plaintiff claims that he was harassed or unfairly treated, but which on their face do not relate even implicitly to plaintiff's national origin, religion, or disability. For example, plaintiff alleges that in April 1991, Heywood unjustifiably criticized plaintiff for "going too fast" on a project. Plaintiff also alleges that at a meeting in June 1990 Heywood "verbally abused" Shabat and "at one point even raised his hand as if to strike" Shabat, but plaintiff does not allege that Heywood made any comments about Shabat's religion, national origin, or hearing impairment on that occasion.

 Even construing the record in the light most favorable to plaintiff, I find that these alleged incidents do not give rise to a triable issue of fact concerning the existence of a hostile work environment. Most of these incidents involved nothing more than occasional, brief comments, some of which reflect a clash of personalities more than discriminatory animus. Taken as a whole, they simply did not create the kind of abusive work environment, permeated with discrimination, that is necessary to support liability for creating or tolerating a hostile work environment. See Valdez v. Mercy Hosp., 961 F.2d 1401, 1402-03 (8th Cir. 1992) (although there clearly were personality conflicts between Mexican-American plaintiff and other staff members, including his supervisor, "these conflicts, even taken with [the supervisor's] ethnic humor, did not rise to the level of severity or pervasiveness necessary to demonstrate a discriminatorily hostile work environment actionable under Title VII").

 Factors to be considered when determining whether an environment is hostile or abusive include: "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 371. See also Lopez v. S.B. Thomas, Inc., 831 F.2d 1184 (2d Cir. 1987) ("to demonstrate a hostile work environment more than an episodic pattern of [discriminatory] antipathy must be proven...") *fn4" ; Bennett v. New York City Dep't of Corrections, 705 F. Supp. 979 (S.D.N.Y. 1989) (plaintiff "must prove more than a few isolated instances of [discriminatory] friction. ... The incidents of harassment [must] occur either in concert or with a regularity that can reasonably be termed pervasive") (citations omitted).

 Neither the frequency nor the severity of the allegedly discriminatory conduct supports plaintiff's claim in this case. Even assuming that every incident alleged by plaintiff did occur, it is clear that these were far from regular occurrences; most of them were separated by a month or more. Thus, it could hardly be said that they "permeated" plaintiff's workplace.

 Furthermore, some of the alleged comments by plaintiff's coworkers did not make any reference whatsoever to plaintiff's religion, national origin, or disability. In any workplace, friction will sometimes occur, and people may lose their tempers or display some hostility toward their ...


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