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United States District Court, S.D. New York

March 2, 2004.


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.


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.


  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.").


 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 of culturally appropriate social behavior absent a showing that the particular recipient indicated the contact was unwelcome."); Gonzalez v. Kalian, 88 Civ. 922, 1996 U.S. Dist. LEXIS 22715, at *11 (E.D.N. Y.Y. Nov 25, 1996) (granting summary judgment because an obscene phone call, a Page 6 bear hug, several requests for dates, and a marriage proposal did not establish a hosfile work environment).

  Additionally, plaintiff fails to establish how the alleged incidents were physically threatening or humiliating nor how they interfered with his work. Instead, plaintiff relies solely on the fact that Davidson's purported physical acts (without mention of the telephone message) made him feel "uncomfortable." Pl. Dep. at 44:15-20. While Davidson's alleged actions may well have made plaintiff feel "uncomfortable," plaintiff's subjective reaction to the, non — egregious behavior of his boss does not transform a neutral work environment into a hosfile one.

 C. Association Discrimination

  Plaintiff also asserts association discrimination and contends that ITS wrongly terminated him because of his wife's illness. A plaintiff makes out a prima facie case on this claim by proving that "(1) [he] was `qualified for the job at the time of the adverse employment action; (2) [he] was subjected to adverse employment action; (3) [he] was known by his employer at the time to have a relative or associate with a disability; and (4) that the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the employer's decision." See Abdel-Khalek v. Ernst & Young, LLP, 97 Civ. 4514, 1999 WL 190790, at *4 (S.D.N.Y. Apr. 7, 1999), citing Den Hartog v. Wastatch Acad., 129 F.3d 1076, 1085 (10th Cir. 1997), citing McDonnell Douglas Corp. v. Green, 93 S. Ct 1817, 1824 (1973). Once a plaintiff establishes a prima facie case for an association discrimination claim, the burden of going forward shifts to the defendant to establish that there was a legitimate non — discriminatory rationale for the termination, and if the defendant offers a non — discriminatory reason, the plaintiff must establish that the defendant's rationale is pretextual. Abdel-Khalek, 1999 WL 190790, at *4.

  Because it is undisputed that at the time the plaintiff was terminated, he was performing unsatisfactorily, it is questionable whether plaintiff has satisfied the first prong of the prima facie test — that he was qualified for the position. See Abdel Khalek, 1999 WL 190970, at *4. Assuming arguendo that plaintiff has proven Ids prima facie case, Davidson carried her burden by offering a non — discriminatory unrebutted*fn8 rationale that plaintiff was fired because of his Page 7 unsatisfactory work performance, which caused her to "los[e] all confidence" in his "ability to perform his job sufficiently." Def. Dep. at 38:14-16; McDonnell Douglas, 93 S.Ct. at 1823. Plaintiffs continued reliance on temporal proximity alone, in the face of his concession as to the validity of Davidson's non — discriminatory rationale, is unavailing. See Bainlardi v. SBC Warburg, Inc., 97 Civ. 2861, 1998 U.S. Dist LEXIS 13491, at *18 (S.D.N.Y. Aug. 31, 1998) (citations omitted); Reilly v. Metro — North Commuter HR. Co., 93 Civ. 7317, 1996 U.S. Dist. LEXIS 17061, at *48 (S.D.N.Y. Nov. 15, 1996). Therefore, plaintiff's association discrimination claim is dismissed.


  For all of the foregoing reasons, defendant's motion for summary judgment is granted and the complaint is dismissed. The Clerk is instructed to close this motion and all other open motions and remove this case from my docket


 *fn2 "Claims of intentional discrimination under the ADA are analyzed using the framework developed under Title VII." Reg'l Econ. Cmty. Action Prog., Inc. v. City of Middletown, 294 F.3d 35, 48-49 (2d Cir.), cert. denied, 537 U.S. 813 (2002). Similarly, because claims brought pursuant to NYCHRL and NYSHRL are also "examined in the same manner as Title VII claims" (McDonald v. B.E. Windows Corp., 01 Civ. 6707, 2003 WL 21012045, at *3 (S J.N.Y. May 5, 2003) (citations omitted)), this Court will analyze all of plaintiffs claims within the Title VII

 *fn3 "Kitchen cabinet meetings" refer to meetings that Davidson held with her key staff. Def. Dep. at 30:19-25.

 *fn4 NotabIy; plaintiff makes no mention of this allegation in his opposition memoranda, nor did he question Davidson about the incident during her deposition. However, because plaintiff reiterates this allegation in his Affidavit, the allegation, though bare, is part of the record before the Court on this motion.

 *fn5 "Bell's palsy is a form of facial paralysis resulting from damage to the 7th (facial) cranial nerve. This nerve disorder afflicts approximately 40,000 Americans each year. It can strike almost anyone at any age; however, it disproportionately attacks pregnant women and people who have diabetes, influenza, a cold, or some other upper respiratory ailment In addition to one — sided facial paralysis with possible inability to close the eye, symptoms of Bell's palsy may include pain, tearing, drooling, hypersensitivity to sound in the affected ear, and impairment of taste." Minds Bell's Palsy Information Page, available at

 *fn6 Def. Dep. at 28:17-25 ("Q: Do you recall ever telling him to take whatever time he needed out? A: Yes. Q: What did you mean by that ? A:1 meant that he should let me know what time he might need in order to take care of his family needs, and that we could talk about that and work around that").

 *fn7 Similarly, plaintiff provides absolutely no evidence to support a finding that he had any reaction whatsoever to and even fails to include this incident in the two occurrences of harassment


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