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TABACHNIK v. JEWISH THEOLOGICAL SEMINARY OF AMERICA

March 2, 2004.

RICHARD TABACHNIK, Plaintiff, -against- JEWISH THEOLOGICAL SEMINARY OF AMERICA, Defendant


The opinion of the court was delivered by: HAROLD BAER, JR., District Judge[fn1] [fn1] Danielle Randazzo, a spring 2004 intern in my Chambers and a second — year law student at New York Law School, provided substantial assistance in the research and drafting of this Opinion.

OPINION & ORDER

Plaintiff Richard Tabachnik ("Tabachnik") brought suit against the Jewish Theological Seminary of America ("JTS"), alleging sexual harassment by Rabbi Carol Davidson ("Davidson") pursuant to Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. §, 2000e et seq. ("Title VII"), the New York State Human Rights Law ("NYSHRL"), N.Y. EXEC LAW §§ 296 et seq. (McKinney 1993 & 2001 supp.), the New York City Human Rights Law ("NYCHRL"), and Title Eight of the Administrative Code of the City of New York. Plaintiff also alleges association discrimination by JTS on the basis of Title VII, the NYSHRL, the Americans with Disabilities Act, 29 U.S.C. § 12112 (a) ("ADA"), and the NYCHRL.*fn2 Defendant moves for summary judgment pursuant to Federal Rule of Civil Procedure ("Fed.R. Civ. P.") 56(c). For the following reasons, defendant's motion is granted.

I. BACKGROUND

  Plaintiff was hired by JTS on or about March 11, 2002, as the Director of Regional Operations, under the direct supervision of Davidson. In the first month of plaintiff's Page 2 employment, he requested a personal loan of $25,000 from JTS, in order to purchase a new home. JTS denied the request because its policy prohibited personal loans. Instead, Davidson offered a $25,000 salary increase to begin in July, the beginning of the next fiscal year, contingent on plaintiff's satisfactory performance.

  Plaintiff was discharged in June. During his short tenure, plaintiff alleges that Davidson sexually harassed him by touching his thigh at a "kitchen cabinet meeting*fn3" hugging him after learning of his dog's death, and leaving a telephone message for him on or about May 23, 2002, "advis[ing] him not to worry because she loved him and his job was secure." Compl. ¶ 20; Tabachnik Aff. ¶ 13*fn4. With regard to the first allegation, plaintiff allows as how that Davidson touched him but for only a moment — less than ten seconds (Pl. Dep. at 50:8-11) while they "were talking about something that I [Tabachnik] was going to be dealing with" (Pl. Dep. at 50:25-51:3). Davidson denies touching plaintiff, but is clear that if there was any contact whatsoever, she would at most have brushed his elbow with her hand, and only very briefly. Def. Dep. at 31:22-32:13. While plaintiff cites these incidents as evidence of harassment, he concedes that "perhaps [the touch] was just an acknowledgment of my sitting there." Pl. Dep. at 51:3-4. Davidson denies ever hugging plaintiff and explains that she only recalled that his dog had died when she was reminded of the fact at her deposition. Def. Dep. at 32:17-25.

  Plaintiff also contends that his discharge from JTS was the result of association discrimination, based on his wife's disability. After plaintiff's wife gave birth to their fourth child, on May 15, 2002, she came down with Bell's Palsy.*fn5 Plaintiff informed Davidson of his wife's condition when he returned to work on or about May 23, 2002, and asserts that JTS fired him based in part on its fear that his wife's disability would result in his diminished work Page 3 product. Without commenting as to the exact cause, Davidson argues that the quality of plaintiff's work suffered severely after he returned to JTS. Davidson further asserts that she had offered plaintiff the option of taking additional time off in order to get his affairs in order, but he had declined.*fn6 After his return, plaintiff's output continued to decrease — a fact which plaintiff readily admits. PL Dep. at 122:16-20 ("I was again preoccupied with my personal situation, to really get back on the ball and make an attempt to start working the way I should be working."). Plaintiff was finally terminated on June 7, 2003, due, according to Davidson, to his unsatisfactory work performance. Def. Dep. at 37:1-5 ("I expressed the fact that my disappointment stemmed from having had a few discussions already with him about what was needed for him to be producing and that I was not seeing it); 38:14-16, 20-23 ("I had lost all confidence in his ability to perform his job sufficiently. . . . and I recommended that he be terminated, because I had lost confidence and did not want us to prolong the inevitable.").

  II. DISCUSSION

 A. Standard of Review

  Pursuant to Fed.R.Civ.P. 56(c), a district court must grant summary judgment if the evidence demonstrates that "there is no genuine issue as to any material fact and [that] the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986). "Summary judgment is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to `secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986), quoting Fed.R.Civ.P. 1. In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities and draw all inferences against the moving party. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam) Donahue v. Windsor Locks Bd. of Fire Commr's 834 F.2d 54, 567 (2d Cir. 1897). However, the mere existence of disputed factual issues is insufficient to defeat a motion for summary judgment. Knight v. United States Fire Ins. Co., 804 F.2d 9, 11-12 (2d Cir. 1986), cert. denied, 480 U.S. 932 (1987). The disputed issues of fact must be "material to the outcome of the Page 4 litigation" (id at 11), and must be backed by evidence that would allow "a rational trier of fact to find for the non — moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non — movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. This summary judgment standard of review applies likewise to claims of disability and sexual harassment. See Abdel-Khalek v. Ernst & Young, LLP, 97 Civ. 4514, 1999 WL 190790, at *4 (S.D.N.Y. Apr. 7, 1999); E.E.O.C v. Rotary Corp., 00 Civ. 1478, 2003 U.S. Dist. LEXIS 23225, at *11 (N.D.N.Y. Dec. 29, 2003).

 B Sexual Harassment

  Plaintiff bases his sexual harassment claim on two isolated instances of touching (Pl. Dep. at 44:11-22), both of which Davidson fervently denies: (1) an allegation that in or about April 2002, at a kitchen cabinet meeting, Davidson touched his thigh (Pl. Dep. at 45:12-14), and (2) an assertion that Davidson hugged him after learning of his dog's death (Pl. Dep. at 51:7-24), and one telephone message whereby Davidson allegedly attempted to quell plaintiffs anxiety about his job by stating that she loved him. Compl. ¶ 20. In order to succeed on a claim for sexual harassment, pursuant to Title VII, a plaintiff must satisfy either the quid pr o quo or the hosfile work environment test. See Karibian v. Columbia Univ., 14 F.3d 773, 777 (2d Cir. 1994). The quid pro quo theory provides for liability when the "submission to or rejection of [unwelcome sexual] conduct by an individual is used as the basis for employment decisions affecting such individual." 29 C.F.R. § 1064.11(a)(2) (1993), cited in Karibian, 14 F.3d at 777.

  While plaintiff claims that the two instances of touching*fn7 made him feel uncomfortable, that is not enough. Without more, i.e. some evidence of a causal connection between the alleged sexual harassment and his termination, the plaintiff's quid pro quo sexual harassment claim must be dismissed.

  In order to assert a sexual harassment claim based on a hosfile work environment, the plaintiff must establish both that the harassment was "sufficiently severe or pervasive to alter the conditions of [his] employment, creating an abusive working environment," and that there exists Page 5 "a sufficient basis for imputing the conduct that created the hosfile environment to [his] employer." Evans v. Port Auth, of New York & New Jersey, 192 F. Supp.2d 247, 279 (S.D.N.Y. 2002). In assessing whether a hosfile work environment exists, the totality of the circumstances" must be considered. Ackerman v. Nat'l Fin. Sys., 81 F. Supp.2d 434, 437 (E.D.N.Y. 2000). The controlling factors for evaluating the existence of a hosfile work environment are: "(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether the conduct was physically threatening or humiliating, or a mere offensive utterance; (4) whether the conduct unreasonably interfered with plaintiffs work; and (5) what psychological harm, if any, resulted." Susko v. Romano's Macaroni Grill, 142 F. Supp.2d 333, 336 (E.D.N.Y. 2001).

  First, even assuming arguendo that plaintiff's allegations are accurate, plaintiff only alleges three independent incidents — not a pervasive pattern of harassment. While "a single instance [of hosfile or abusive behavior] can suffice when it is sufficiently egregious" (see Ferris v. Delta Airlines, Inc., 277 F.3d 128, 136 (2d Cir. 2001), cert. denied, 537 U.S. 824 (2002)), incidents such as those alleged by plaintiff — as opposed, for instance, to an isolated instance of rape (id.) — fail to meet the standard. Merely hugging a subordinate in an effort to console, touching a subordinate's thigh during a meeting when such conduct could be construed as non — sexual in nature, and stating one's love for a subordinate in a telephone message, do not collectively establish a hosfile work environment. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998) (hosfile work environment claim denied despite allegations that co-worker commented that plaintiff had been voted the "sleekest ass" in the office and, on a separate occasion, deliberately brushed the plaintiff's breasts with papers); Feliciano v. Alpha Sector, 00 Civ. 9309, 2002 U.S. Dist. LEXIS 12631, at * 23 (S.D.N.Y. July 11, 2002) (granting summary judgment for the defendant on the basis that an attempt to hug, even in addition to compliments, requests to date, a statement of desire to "lay with" the plaintiff, and a kiss, been held not to comprise a hosfile working environment); Mark v. Mount Sinai Hosp., 85 F. Supp.2d 252, 260 (S.D.N.Y. 2000) ("A platonic hug or kiss at a party falls within the realm ...


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