United States District Court, S.D. New York
August 8, 2005.
DANIEL J. GOLDSCHMIDT, Plaintiff,
NEW YORK STATE AFFORDABLE HOUSING CORPORATION et al., Defendants.
The opinion of the court was delivered by: DENNY CHIN, District Judge
In this employment discrimination case, plaintiff Daniel
Goldschmidt alleges that defendants New York State Affordable
Housing Corporation ("AHC"), New York State Housing Finance
Agency ("HFA"), Jerome Becker, Michael D.D. White, and Robert
Drillings (collectively "defendants") discriminated against him
on the basis of religion and retaliated against him, in violation
of federal, state, and city law. Defendants move for summary
judgment dismissing all claims. For the reasons set forth below,
the motion is granted in part and denied in part. BACKGROUND
A. The Facts
Construed in the light most favorable to plaintiff, the
non-moving party, the facts are as follows:
1. The Parties
AHC is a public benefit corporation organized under the laws of
the State of New York. AHC is a subsidiary corporation of HFA
(together, "the agencies"), also a public benefit corporation
organized under the laws of New York. (Def. 56.1 Statement ¶
AHC "was established to administer the Affordable
Home Ownership Development Program," the purpose of which "is to
promote home ownership by persons of low and moderate income," by
providing financial assistance for the purchase, construction,
and rehabilitation of owner-occupied housing. "About AHC,"
available at http://www.ahc.org/ahc/aboutAHC.html (last
visited July 15, 2005). The two agencies share administrative and
management functions and personnel. (Def. 56.1 Statement ¶ 2).
Becker is the chairman of the board of directors of the
agencies. (Id. ¶ 6). Becker is Jewish. (Id. ¶ 7). At all
times relevant to the instant action, Drillings served as Senior
Vice President and Counsel to the agencies, and was head of the
Legal Unit. (Id. ¶ 3). Drillings is Jewish. (Id. ¶ 3). At all times relevant to the instant action, White served as Vice
President and Deputy Counsel to HFA and AHC. White was
responsible for administrative and personnel matters in the Legal
Unit. (Id. ¶ 4). White is not Jewish. (Id. ¶ 5).
Goldschmidt was employed as an Assistant Counsel in the Legal
Unit of AHC from July 17, 2000 until May 10, 2002. (Id. ¶¶ 10,
117; Pl. Resp. to Def. 56.1 Statement ¶ 117). Goldschmidt is an
Orthodox Jew. (Goldschmidt Aff. ¶ 3).
2. Requests for Accommodations and Extensions of Probation
Goldschmidt was interviewed for an Assistant Counsel position
by Drillings and White on May 18, 2000. (Goldschmidt Aff. ¶ 4).
Goldschmidt was offered the position in late June, 2000, and
accepted it on July 7, 2000. (Id.). Goldschmidt then met with
Drillings on July 11, 2000, at which time he informed Drillings
that he was an observant Jew and would require religious
Early in his employment, Goldschmidt requested periodic
accommodations, including three days off from September 27-29,
2000, to make his annual religious pilgrimage to the Ukraine.
(Id. ¶ 7, 11; Def. 56.1 Statement Ex. G). In the fall of 2000,
as sunset started arriving earlier in the day, Goldschmidt needed
to adjust his schedule to allow him to leave earlier on
Fridays.*fn2 (Id. ¶ 9). Goldschmidt submitted a "Flextime
Request Form" dated October 6, 2000, requesting a schedule,
beginning November 2, 2000, in which he would leave at 1:30 p.m. on Fridays, and work
later on Mondays, Wednesdays, and Thursdays to make up the time.
(Id. Ex. B). The request was approved by Goldschmidt's
supervisor at the time, Barbara Roslyn. (Id.). On October 13,
2000, one week after Goldschmidt's flextime request,
Goldschmidt's probationary period was extended for sixty days.
(Id. Ex. C).
On October 27, 2000, Goldschmidt emailed White, discussing his
flextime request and explaining why he had not submitted a formal
flextime request for his increasingly earlier departures on
Fridays in October. (Goldschmidt Aff. Ex. A). White emailed him
back the following response:
Isn't this all a bit finugliated? I mean isn't it an
awful lot for you to be asking the Deputy Counsel to
read through to keep track of whether you are putting
in a regular day? And then, given the confusing
complexity of it all would I truly be keeping track
of everything that I needed to know to be sure that
there were no holes in your equations if I didn't
manage to look at all your other start and end times?
That would then get me into your irregular arrival
times which are themselves a problem as Barbara has
mentioned to you.
During the period that followed, Goldschmidt "was repeatedly
admonished by White that [his] Friday afternoon departures were
an imposition on the [a]gencies." (Id. ¶ 12). On January 16,
2001, Goldschmidt's probation again was extended, for 180 days.
(Id. Ex. D). On January 19, 2001, Drillings sent an email to
various individuals at the agencies regarding the extension of Goldschmidt's probation and his work
performance.*fn3 The subject of the email was "Daniel
Goldschmidtuel." (O'Reilly Reply Decl. Ex. I).
In April 2001, Goldschmidt suggested a revision in his
schedule, as he no longer needed to leave as early on Fridays,
but did need to leave early on alternate Tuesdays to attend a
regularly scheduled doctor's appointment. (Goldschmidt Aff. ¶
13). According to Goldschmidt, White "was initially unwilling to
change [plaintiff's] schedule, and ultimately dictated what he
indicated . . . was the only revised schedule he would accept."
(Id.). The revised schedule actually required plaintiff to work
more than forty hours per week in alternating weeks. (Id. Ex.
During the spring of 2001, Goldschmidt took time off for Purim
on March 9, Passover on April 9, and Shavous on May 29. He also
requested from White and Drillings that he be allowed to work
extra hours "to earn additional leave time to enable [him] to
observe the Jewish holidays in the fall and make [his] annual
pilgrimage to the Ukraine." (Goldschmidt Aff. ¶ 14). White and
Drillings responded that "they would not consider this request
and that the [a]gencies had no obligation to accommodate what
Drillings characterized as [his] `vacations.'" (Id.). Because of their response, Goldschmidt did not make his pilgrimage that
Upon completion of his probationary period, Goldschmidt's
probation was extended in August 2001 for another ninety
days;*fn4 the probationary review sheet stated that the
agencies were "monitoring Mr. Goldschmidt's time and attendance."
(Id. Ex. F).
In the fall of 2001, Goldschmidt switched back to the fall
schedule, leaving earlier on Fridays, a switch which, according
to Goldschmidt, was done "in the face of complaint and derision
by White." (Id.). In January 2002, Goldschmidt requested time
off from March 25-April 5, 2002, to observe Passover, and told
White and Drillings that he was willing to work holidays or other
additional hours to accumulate enough leave to cover this period.
Because Goldschmidt was never told he could work additional
hours, he withdrew his original leave request, modifying his
request to take off only four days. (Id. ¶ 23).
3. Performance Appraisals and Termination
In January 2002, Drillings and White gave Goldschmidt his first
performance appraisal. Goldschmidt's average score for the twenty
individual categories, on a scale ranging from 1 ("unsatisfactory") to 5 ("outstanding"), was a 3.075;
nevertheless, Drillings and White gave plaintiff an "overall
score" of 2, automatically requiring a re-evaluation in three
months. (Id. Ex. G). None of the other five Assistant Counsels
was given an overall rating lower than their average rating, nor
was any given an overall rating of 2.*fn5 (Pl. 56.1
Statement ¶ B3; Gordon Aff. Exs. G-L). One other Assistant
Counsel received an average rating of 3.075, identical to
Goldschmidt's, but received an overall rating of 3.75. The
comments on Goldschmidt's evaluation characterized his work as
"generally . . . satisfactory," and suggests multiple areas in
which improvement was needed, including the ability to handle
multiple tasks at once and independently oversee a major
transaction. (Goldschmidt Aff. Ex G). The comments also state
that Goldschmidt fails to "have a natural internal sense or
intuition of what is called for from him in various personal
conduct matters so that it is necessary to request certain
behavior from him, including specifically arriving in time in the
morning for meetings on projects to which he is assigned."
(Id.). The evaluation then states the following:
We have tried to meet Mr. Goldschmidt more than half
way [sic] on a number of things where he has special
needs, the principal one being to have set up a
fairly complicated set of working hours as the basis for his regular work
week which then received periodic adjustment. Having
done so, we note that Mr. Goldschmidt has paid a lot
of shrewd attention to examining what further
accommodations he could be given but has not
completely lived up to the deals struck with him on
the accommodations that he has been given. He asks
that we cut him slack based on extra hours he saying
[sic] he is willing to work when everyone else has
gone home, but, at the same time, he is squeezing so
many personal chores and pursuits into the regular
and extended workday that it makes any such special
calculus very tricky.
On January 14, 2002, Goldschmidt met with White and Drillings
to discuss the appraisal. White and Drillings told plaintiff
that, at his option, he could be re-evaluated within six months;
he was not told that he would be put on probation. (Goldschmidt
Aff. ¶ 20). Drillings was optimistic after discussing
Goldschmidt's appraisal with him that "things were going to work
out with Mr. Goldschmidt at the agency." (Drillings Dep. at 199).
At the end of the meeting, Goldschmidt handed White and
Drillings his informal letter response to the performance
appraisal. The letter rebutted certain of the issues raised in
the appraisal. Specifically, Goldschmidt stated that he arrived
late to a meeting on only one occasion and that he spent no more
time than other attorneys in the department on personal pursuits.
(Goldschmidt Aff. Ex. G). Goldschmidt objected to the paragraph
addressing his schedule accommodating his religious practices and
its "language that veers too close for comfort to religious
stereotypes (i.e., shrewdly looking for what else he could be given but not living up to his end of the deal)." He stated he
was "confident that there was no such intent, [but thought] it
would be best to remove any possibility of a mistake by deleting
the suggestive language." (Id.).
After reading the letter, Drillings was no longer optimistic
about how things would work out for Goldschmidt at the agencies.
(Drillings Dep. at 199). White and Drillings responded by letter
dated January 28, 2002, stating their disagreement with
Goldschmidt's objections to his appraisal, and that they erred in
informing Goldschmidt that he would be re-evaluated in six
months. They stated that the agencies' Human Resources Director
advised them that Goldschmidt must be re-evaluated in three
months. (Id. Ex. I). They advised Goldschmidt that "dramatic
and expeditious improvement in [his] work performance and conduct
. . . over the near term" was necessary, otherwise the agencies
would have "no alternative but to terminate [his] employment."
(Id.). The letter concluded:
In closing, let us make it crystal clear to you that
we take strongest exception, both personally and on
behalf of the Agency, to the none-too-subtle
reference in your letter to religious intolerance
and/or discrimination. You, as is the case with all
Agency employees, have received reasonable, if not
liberal, accommodations from the Agency to practice
your religious beliefs, particularly with respect to
time and leave. In view of the ongoing time and leave
accommodations you personally have received, your
observations are disingenuous and patently without
merit, and we both are astounded and insulted by
Following Goldschmidt's appraisal, White and Drillings did not meet with or provide any further feedback or training,
nor did they assign Goldschmidt "any new kinds of work (or indeed
much of any new work at all) to enable [him] to demonstrate [his]
capabilities." (Goldschmidt Aff. ¶ 10). On April 18, 2002, White
and Drillings gave Goldschmidt his re-evaluation, containing
identical ratings in every category. (Id. Ex. J). During that
meeting, White and Drillings informed Goldschmidt that his
employment was being terminated, effective three months from then
to allow Goldschmidt to seek alternative employment. (Id. ¶
Subsequently, at some point after April 18, 2002, Jerome Becker
received two phone calls, one of which was from Rabbi Jacob
Goldstein, inquiring as to the reasons for Goldschmidt's
dismissal. (Id. ¶ 28; Becker Dep. 14-16). Goldschmidt did not
ask anyone to contact Becker and was unaware the calls had been
placed. (Goldschmidt Aff. ¶ 28). On May 8, 2002, Drillings and
White told Goldschmidt that his employment was terminated
effective May 10, 2002, because he had engaged in "heavy-duty
lobbying." (Id.). Goldschmidt explained that he had not
requested that anyone call Becker, to which Drillings responded
with words to the effect of "we don't want to hear any more from
your Rabbi friends." (Id.).
4. Other Incidents
At some point in 2000, Becker approached Goldschmidt in the
men's bathroom and told him "that, in his view, Orthodox Jews are
intolerant and contemptuous of other Jews." (Id. ¶ 8; Goldschmidt Dep. at 273). At some point in 2001, Becker made a
similar comment to Goldschmidt in the bathroom. (Goldschmidt Dep.
at 280). In December 2001, "during an office Christmas party,
employees were asked to state which historical or other person
they would most like to meet." (Goldschmidt Aff. ¶ 8).
Goldschmidt selected Reb Nachman of Breslov,*fn6 and "was
subjected to laughter and ridicule for [his] selection." (Id.).
B. Procedural History
Plaintiff filed a charge of discrimination against defendants
with the EEOC.*fn7 On June 18, 2003, the EEOC issued
plaintiff a Right to Sue letter. The instant action was filed on
September 2, 2003, alleging violations of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., as amended ("Title VII");
the New York State Human Rights Law, New York Executive Law §
296; and the New York City Human Rights Law, New York
Administrative Code §§ 8-107 and 8-502.
Specifically, the complaint asserts at least four claims: (1)
denial of reasonable accommodation of plaintiff's religion; (2)
hostile work environment based on plaintiff's religion; (3)
termination based on plaintiff's religion and requests for reasonable accommodation; and (4) termination in
retaliation for complaining of discrimination.*fn8 (Compl.
at 7-8). The parties engaged in discovery and the instant motion
for summary judgment followed. For the reasons set forth below,
defendants' motion is granted with respect to plaintiff's denial
of reasonable accommodation and hostile work environment claims,
and denied with respect to plaintiff's discriminatory termination
and retaliatory termination claims.
A. Summary Judgment Standard
The standards governing motions for summary judgment are
well-settled. A court may grant summary judgment only where there
is no genuine issue of material fact and the moving party is
therefore entitled to judgment as a matter of law. See Fed R.
Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 585-87 (1986). Accordingly, the court's
task is not to "weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). There must be sufficient evidence in the record to
support a jury verdict in the nonmoving party's favor to create an issue for
trial. See id.
To defeat a motion for summary judgment, the nonmoving party
"must do more than simply show that there is some metaphysical
doubt as to the material facts." Matsushita, 475 U.S. at 586.
As the Supreme Court stated in Anderson, "[i]f the evidence is
merely colorable, or is not significantly probative, summary
judgment may be granted." Anderson, 477 U.S. at 249-50
(citations omitted). The nonmoving party may not rest upon mere
conclusory allegations or denials, but must set forth "concrete
particulars" showing that a trial is needed. Nat'l Union Fire
Ins. Co. v. Deloach, 708 F. Supp. 1371, 1379 (S.D.N.Y. 1989)
(quoting R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69,
77 (2d Cir. 1984) (internal quotations omitted)). Accordingly, it
is insufficient for a party opposing summary judgment "merely to
assert a conclusion without supplying supporting arguments or
facts." BellSouth Telecomms., Inc. v. W.R. Grace & Co.,
77 F.3d 603, 615 (2d Cir. 1996) (internal quotations omitted).
B. Religious Discrimination Claims Under Title VII
Title VII provides that "[i]t shall be an unlawful employment
practice for an employer . . . to discharge any individual or
otherwise to discriminate against any individual . . . because of
such individual's . . . religion." 42 U.S.C. § 2000e-2(a). An
individual's "religion" includes not just religious beliefs, but
"all aspects of religious observance and practice," unless the
employer demonstrates that it is unable to reasonably accommodate a religious observance or practice
"without undue hardship on the conduct of the employer's
business." 42 U.S.C. § 2000e(j). A plaintiff may claim a
violation of religious discrimination under Title VII under
theories of either denial of reasonable accommodation or
disparate treatment. See, e.g., Cosme v. Henderson,
287 F.3d 152 (2d Cir. 2002) (denial of reasonable accommodation);
Feingold v. New York, 366 F.3d 138 (2d Cir. 2004) (disparate
treatment). A disparate treatment claim, in turn, may be
established by showing either (1) adverse job action under
circumstances giving rise to an inference of discrimination on
the basis of religion, or (2) harassment on the basis of religion
that amounts to a hostile work environment. Feingold,
366 F.3d at 149.
In the instant action, plaintiff alleges discrimination claims
under all three theories: denial of reasonable accommodation,
hostile work environment, and disparate treatment. I address each
claim in turn.
1. Denial of Reasonable Accommodation*fn9
Plaintiff apparently has abandoned his claim for denial of
reasonable accommodation; he offers no discussion of the claim
and applicable law, and omits the claim whenever he lists his remaining claims in his opposition papers. (See, e.g., Pl. Mem.
in Opp. at 1) (stating that plaintiff's claims are hostile work
environment, termination based on requests for reasonable
accommodation, and termination in retaliation).
Even if the claim were not abandoned, it fails as a matter of
law. Under Title VII, an employer has an affirmative obligation
to "reasonably accommodate . . . an employee's . . . religious
observance or practice," as long as the observance or practice
does not impose undue hardship on "the conduct of the employer's
business." 42 U.S.C. § 2000e(j); see also N.Y. Exec. Law §
296(10); N.Y.C. Admin. Code § 8-107(3). Hence, an employer
violates Title VII by refusing to grant a request for a
reasonable religious accommodation that would not result in undue
hardship on the employer's business, or by disciplining an
employee who fails to comply with an employment requirement that
conflicts with a bona fide religious belief, practice, or
observance. See Cosme v. Henderson, 287 F.3d 152, 158 (2d
Cir. 2002); 42 U.S.C. § 2000e(j).
Here, plaintiff offers no evidence in support of a claim for
denial of reasonable accommodation. Plaintiff does not allege
that defendants ever actually denied any of his requests to
change his schedule or take leave for religious observance. The
only religious observance plaintiff alleges he did not make
during his employment was his annual pilgrimage to the Ukraine,
because he had insufficient leave. (Goldschmidt Aff. ¶ 14).
Plaintiff withdrew his request for leave before the agencies decided it, but after White and Drillings told plaintiff "they
would not consider this request and that the agencies had no
obligation to accommodate" plaintiff's "vacation." (Id.).
Although White and Drillings might have discouraged plaintiff
from taking leave for the pilgrimage, plaintiff withdrew his
request for accommodation before the agencies decided it, and
before any alleged denial of a reasonable accommodation occurred.
Plaintiff's claim for religious discrimination by denial of a
reasonable accommodation is dismissed as a matter of
2. Hostile Work Environment
While defendants seek summary judgment with respect to all
plaintiff's claims, they offer no discussion of plaintiff's
hostile work environment claim; while defendants address
plaintiff's factual allegations supporting his hostile work
environment claim, they merely group all his discrimination
claims under a McDonnell Douglas analysis and make no effort to
analyze the claim under the hostile work environment caselaw.
Plaintiff similarly fails to acknowledge the standard for a
hostile work environment claim, instead arguing he "has stated a
prima facie case that he was subjected to a hostile work
environment" under a McDonnell Douglas analysis. Nevertheless,
I conclude that plaintiff's hostile work environment claim fails
as a matter of law. a. Applicable Law
To prevail on a hostile work environment claim under Title VII,
"a plaintiff must first show that the harassment was sufficiently
severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment." Feingold
v. New York, 366 F.3d 138, 149 (2d Cir. 2004) (internal
quotations and citations omitted); see also Cruz v. Coach
Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (to defeat a
summary judgment motion on a claim of racially hostile work
environment, "a plaintiff must produce evidence that the
workplace was permeated with discriminatory intimidation,
ridicule, and insult, that was sufficiently severe or pervasive
to alter the conditions of the victim's employment") (internal
quotation marks omitted).
The misconduct must be sufficiently severe or pervasive to
create an objectively hostile or abusive work environment, and
the victim must also subjectively perceive the environment to be
abusive. Faragher v. City of Boca Raton, 524 U.S. 775, 787
(1998) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993)). Additionally, the plaintiff must demonstrate that a
specific basis exists for imputing the conduct that created the
hostile environment to the employer. Van Zant v. KLM Royal Dutch
Airlines, 80 F.3d 708, 715 (2d Cir. 1996).
With respect to the objective showing, a single incident will
not suffice unless "extraordinarily severe." Cruz,
202 F.3d at 570 (quotation omitted). Further, as the Second Circuit stated in
Patterson v. County of Oneida, 375 F.3d 206 (2d Cir. 2004):
The matter of whether the conduct alleged was so
"severe or pervasive" as to create "an objectively
hostile or abusive work environment," is to be
decided based on the totality of the circumstances,
in light of such factors as 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 227 (quoting Harris, 510 U.S. at 21, 23).
Additionally, "where reasonable jurors could disagree as to
whether alleged incidents of . . . harassment would have
adversely altered the working conditions of a reasonable
employee, the issue of whether a hostile work environment existed
may not properly be decided as a matter of law." Id. at 227.
In this case, no reasonable juror could conclude that
plaintiff's work environment was "permeated with discriminatory
intimidation, ridicule, and insult" that was so severe or
pervasive as to alter the conditions of his employment. Harris,
510 U.S. at 21 (internal quotation omitted).
At the outset, I assume, as I must, that the subjective element
of the hostile work environment claim has been satisfied, that
is, plaintiff perceived his work environment to be hostile and
abusive. (Goldschmidt Aff. ¶ 8) (plaintiff alleges he encountered
"hostility and abuse . . . as a result of [his] requests for
accommodation"); see also Powell v. Consol. Edison Co. of
N.Y., 97 Civ. 2439 (GEL), 2001 U.S. Dist. LEXIS 2706, at *46 (S.D.N.Y. March 13, 2001) ("there can be no dispute that the
subjective requirement has been met, since [plaintiff] has
clearly stated in sworn testimony that he perceived his working
environment to be racially hostile"). Plaintiff has, however,
failed to put forth sufficient evidence with respect to the
Plaintiff offers few specific instances of discriminatory
treatment, instead alleging generally that he "was subjected to
criticism, ridicule, and derision from defendants . . . in
response to his requests for religious accommodation." (Pl. 56.1
Statement ¶ A4). Plaintiff does specifically allege that Becker
once commented to him that "in his view, Orthodox Jews are
intolerant and contemptuous of other Jews," and that during an
office holiday party he "was subjected to laughter and ridicule"
for stating that the historical figure he would most like to meet
is Red Nachman of Breslov. Assuming these allegations are true,
they are isolated and not severe or threatening, nor is there
evidence that these incidents interfered with his work
In support of his hostile work environment claim, plaintiff
repeatedly alleges that there is "a factual question" as to
whether the defendants' extensions of plaintiff's probations and
the January 2002 negative performance evaluation were "in
response to plaintiff's requests for reasonable accommodation."
(Pl.'s 56.1 Statement, "Section A `Hostile Work Environment'" ¶¶
A6-A8). Even assuming arguendo that the extensions of probation and negative performance review were in
response to plaintiff's requests for religious accommodation,
they are at most allegations in support of an inference of
discrimination, not examples of "intimidation, ridicule, and
insult" in support of a claim for hostile work environment.
Indeed, plaintiff does not allege that those actions were
accompanied by overt acts of insult or harassment based on
Finally, plaintiff's reliance on Drillings's use of the term
"Goldschmituel" in an email discussing his schedule is misplaced
in a hostile work environment claim; assuming the term is
discriminatory, it was not directed at plaintiff, nor did
plaintiff learn of its use until the email was produced in
discovery in this case. Defendants' motion for summary judgment
as to plaintiff's hostile work environment claim is granted.
3. Termination Based on Plaintiff's Religion
a. Applicable Law
Title VII prohibits dismissal of an employee based on his
religion; "religion" includes all aspects of the individual's
beliefs and practices that can be reasonably accommodated by the
employer. 42 U.S.C. § 2000e(j). Here, plaintiff claims he was
terminated on the basis of his religion, including his practices
that required reasonable accommodation by defendants.
The "ultimate issue" in any employment discrimination case is
whether the plaintiff has met his or her burden of proving that
the adverse employment decision was motivated at least in part by an "impermissible reason," i.e., that there
was discriminatory intent. See Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 146 (2000); Fields v. N.Y. State
Office of Mental Retardation & Developmental Disabilities,
115 F.3d 116, 119 (2d Cir. 1997). Cases brought under Title VII are
analyzed pursuant to the three-step test set forth in McDonnell
Douglas and refined in later cases. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973); Raytheon Co. v. Hernandez,
540 U.S. 44, 50 (2003); Stern v. Trustees of Columbia Univ.,
131 F.3d 305, 311-12 (2d Cir. 1997).
With respect to a discriminatory termination claim, a plaintiff
must first establish a prima facie case of unlawful
discrimination by showing that (1) he is a member of a protected
category, (2) he performed his job satisfactorily, and (3) he was
discharged (4) under circumstances that give rise to an inference
of discrimination. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973) (Title VII); Stratton v. Dep't for the Aging,
132 F.3d 869, 879 (2d Cir. 1997) (ADEA).
Second, if the plaintiff establishes a prima facie case, a
rebuttable presumption of discrimination arises, and the burden
then shifts to the defendant to "articulate a legitimate, clear,
specific and nondiscriminatory reason" for the employment
decision. Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir.
1995); see also Reeves, 530 U.S. at 143.
Third, if the employer articulates a nondiscriminatory reason
for its actions, the presumption of discrimination is rebutted and it "simply drops out of the picture." St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 511 (2d Cir. 1993) (citation
omitted). The burden then shifts back to the plaintiff to show,
without the benefit of any presumptions, that more likely than
not the employer's decision was motivated, at least in part, by a
discriminatory reason. See id. at 515-16; Lanier v. I.B.M.
Corp., 319 F. Supp. 2d 374 (S.D.N.Y. 2004).
To meet this burden, the plaintiff may rely on evidence
presented to establish his prima facie case as well as
additional evidence. Such additional evidence may include direct
or circumstantial evidence of discrimination. Desert Palace,
Inc. v. Costa, 539 U.S. 90, 99-101 (2003); Harris v. City of
New York, No. 03 Civ. 6167 (DLC), 2004 U.S. Dist. LEXIS 25496 at
*6 (S.D.N.Y. Dec. 22, 2004). It is not sufficient, however, for a
plaintiff merely to show that he satisfies "McDonnell Douglas's
minimal requirements of a prima facie case" and to put
forward "evidence from which a factfinder could find that the
employer's explanation . . . was false." James v. N.Y. Racing
Ass'n, 233 F.3d 149, 153 (2d Cir. 2000). Instead, the key is
whether there is sufficient evidence in the record from which a
reasonable trier of fact could find in favor of plaintiff on the
ultimate issue, that is, whether the record contains sufficient
evidence to support an inference of discrimination on the basis
of race or gender or some other impermissible factor. See id.
at 157; Connell v. Consol. Edison Co. of N.Y.,
109 F. Supp. 2d 202, 207-08 (S.D.N.Y. 2000). As the Second Circuit observed in James, "the way to tell
whether a plaintiff's case is sufficient to sustain a verdict is
to analyze the particular evidence to determine whether it
reasonably supports an inference of the facts plaintiff must
prove particularly discrimination." 233 F.3d at 157; see
Lapsley v. Columbia Univ., 999 F. Supp. 506, 513-16 (S.D.N.Y.
1998) (advocating elimination of McDonnell Douglas test in
favor of simplified approach focusing on ultimate issue of
whether sufficient evidence exists to permit jury to find
discrimination); see also Norton v. Sam's Club, 145 F.3d 114,
118 (2d Cir. 1998) ("The thick accretion of cases interpreting
this burden-shifting framework should not obscure the simple
principle that lies at the core of anti-discrimination cases. In
these, as in most other cases, the plaintiff has the ultimate
burden of persuasion.").
At the outset, I assume that plaintiff has made out the prima
facie case required by McDonnell Douglas. Defendants have
articulated a legitimate, nondiscriminatory reason for
plaintiff's termination, contending that Goldschmidt's "work
performance was found below expectations, he repeatedly came to
work late, he missed meetings involving Agency staff and meeting
with clients of his employer, he was hostile to co-workers, he
demonstrated behavior problems, and [he] failed to take advantage
of the multiple opportunities to improve." (Def. Mem. at 4).
Hence, I proceed directly to the ultimate question of whether plaintiff has presented sufficient evidence from which a
reasonable jury could find discrimination. I do so by evaluating
first plaintiff's evidence, then defendants' evidence, and
finally the record as a whole, keeping in mind the elusiveness of
proof of discrimination and the principle that the jury is
"entitled to view the evidence as a whole." Stern,
131 F.3d at 314; see also Siano v. Haber, 40 F. Supp. 2d 516, 520
(S.D.N.Y.), aff'd mem., 201 F.3d 432 (2d Cir. 1999).
i. Plaintiff's Evidence
Plaintiff offers, inter alia, the following evidence in
support of his discriminatory termination claim:
First, plaintiff's probationary period was extended three
times, each instance following an accommodation of plaintiff's
religion and/or under circumstances giving rise to an inference
of discrimination. Goldschmidt's first accommodation request to
allow earlier departures in the Fall on Fridays to observe
Shabbat, while granted, was followed one week later by an
extension of his probationary period. (Goldschmidt Aff. Exs. B,
C). The second extension of probation was preceded by repeated
admonitions by White that Goldschmidt's Friday afternoon
departures were an imposition on the agency. (Goldschmidt Aff. ¶
12, Ex. D). The day after Goldschmidt's probation was extended
the second time, January 19, 2001, Drillings sent an email to
colleagues discussing Goldschmidt's probation and performance,
referring to plaintiff in the subject line as "Goldschmidtuel."
(O'Reilly Reply Decl. Ex. I). The probationary review sheet effecting plaintiff's third extension of probation, in August
2001, stated that the agencies were "monitoring Mr. Goldschmidt's
time and attendance." (Goldschmidt Aff. Ex. F).
Second, the agencies' performance appraisal of Goldschmidt in
January 2002 contains references to Goldschmidt's "special
needs," in particular his "fairly complicated set of working
hours . . . [that] receive? periodic adjustment." The appraisal
notes Goldschmidt's "shrewd attention to examining what further
accommodations he could be given," without fully "liv[ing] up to
the deals struck with him." Further, Goldschmidt was given an
overall score of 2, significantly lower than his overall average
score (3.075) and requiring automatic re-evaluation. Goldschmidt
was the only Assistant Counsel given an overall rating lower than
his average score.
Third, defendants repeatedly exhibited displeasure with
accommodating Goldschmidt's schedule. According to Goldschmidt,
White repeatedly admonished him that his early Friday departures
were an imposition, expressed unwillingness to change
Goldschmidt's schedule, and derided Goldschmidt for changing back
to the Fall schedule in 2001. White established a schedule for
Goldschmidt in which he actually worked more then 40 hours per
week every other week. White responded to Goldschmidt's email in
October 2000 discussing his schedule as "finugliated," accusing
Goldschmidt of asking "an awful lot" for the Deputy Counsel "to
keep track of whether [Goldschmidt is] putting in a regular day,"
and referring to the "confusing complexity of it all." In spring 2001, Drillings referred to Goldschmidt's annual pilgrimage as
"vacation" that the agencies were not required to accommodate.
Fourth, defendants made additional comments reflective of
discriminatory animus, including Becker's comment that Orthodox
Jews are intolerant and contemptuous of other Jews, and
Drillings's comment accompanying defendants' termination of
Goldschmidt that the defendants did not "want to hear more from
your Rabbi friends."
ii. Defendants' Evidence
Defendants offer, inter alia, the following evidence in
support of their motion for summary judgment:
First, plaintiff's job performance was poor throughout his
employment, as he, inter alia, arrived late to work, tended
to personal chores during the day, missed meetings, and failed to
improve his performance. (Def. 56.1 Statement ¶¶ 71, 78-93).
Second, the reference to plaintiff's schedule and "fairly
complicated set of hours" in his 2002 performance appraisal is
merely "an observation concerning the schedule," and "make[s] no
mention of accommodation for religious observance." (Def. Mem. at
6). Further, his schedule accommodated his therapist appointments
and commute, not only his religion. Finally, "the criticism of
[p]laintiff's schedule was that he failed to adhere to it and in
no manner questioned the need for accommodation." (Id.).
Third, the reference to "shrewd attention" makes no reference
to Judaism and is, at most, a stray remark. (Id.). Fourth, the same individuals involved in the decision to fire
Goldschmidt White and Drillings are the same individuals who
made the decision to hire him. (Id. at 7; Def. 56.1 Statement ¶
Fifth, defendants Drillings and Becker, as well as more than
40% of the attorneys in the Legal Unit, including Goldschmidt's
immediate supervisor, were Jewish. (Def. 56.1 Statement ¶¶ 3, 7,
Sixth, Goldschmidt's requests for accommodations were always
granted. (Id. at 10; Def. 56.1 Statement ¶¶ 27, 37, 43).
Seventh, several Jewish attorneys in the unit were accommodated
without incident. (Id. at 13; Ticker Decl. ¶ 3; Roslyn Decl. ¶
3; Drillings Decl. ¶ 4; Cooper Decl. ¶ 3).
iii. The Record As a Whole
Considering the evidence as a whole, and resolving all
conflicts in the evidence and drawing all reasonable inferences
in plaintiff's favor, I conclude that a reasonable jury could
find that plaintiff's religion was a motivating factor in his
discharge. There is little doubt that defendants were unhappy
with plaintiff's schedule, admonishing the imposition it created,
making reference in a probation extension to the need to monitor
his time and attendance, and following the major Fall schedule
change with a probation extension. While defendants maintain that
their unhappiness was not with the aspects of plaintiff's
schedule pertaining to religious accommodation but rather his
inconsistent and late arrival times, such a factual dispute must be left to the fact-finder. Further, a reasonable jury could
conclude that certain of defendants' statements, including
calling plaintiff "Goldschmidtuel" and referring to him as
"shrewd," were referencing his religion.
Defendants highlight weaknesses in plaintiff's case, but those
arguments must be presented to, and determined by, the ultimate
fact-finder in this case, and therefore fail on this summary
judgment motion. Defendants' expert on Jewish history submits a
declaration explaining that use of "uel" after a name bears no
meaning in Yiddish or in American-Jewish culture, such that
"Goldschmidtuel" would carry no derogatory implication to a
Jewish person. (Stanislawski Decl. ¶ 8). While defendants' expert
makes strong points, such evidence must be presented to the jury,
which can weigh it against plaintiff's own reasonable argument
that defendants' claim that the "uel" was a typo is implausible,
and that it does sound like a play on plaintiff's
Defendants similarly attack plaintiff's emphasis on the use of
the word "shrewd" to describe plaintiff, arguing that it is a
neutral comment that makes no reference to Judaism. (Def. Mem. at
6; Def. Reply Mem. at 7). While the term "shrewd" makes no overt
reference to Judaism, it is a word that is associated with a
Jewish stereotype and in the context here a reasonable jury could conclude that it was not a neutral comment.*fn12
Defendants argue that the performance appraisal's mention of
plaintiff's "special needs" and his "fairly complicated set of
hours" was merely "an observation," not a reference to
accommodating his religious practices, and that the only
criticism was of plaintiff's failure to adhere to the schedule.
This also is a matter for the jury. A reasonable jury could
conclude that defendants' displeasure with plaintiff's schedule
was based, at least in part, on the continual need for
accommodation. This is especially so when read in context with
White's email, strongly reacting to the "confusing complexity" of
plaintiff's schedule; a reasonable juror could understand the
email as first complaining of Goldschmidt's irregular,
accommodated schedule, and then mentioning his irregular arrival
times as an additional problem. (See Goldschmidt Aff. Ex. A
("[t]hat would then get me into your irregular arrival times
which are themselves a problem")).
Finally, defendants' arguments that the same decision-makers
are involved and that the decision-makers are members of the same
class fail, at least at the summary judgment stage. First, on the
facts as construed in plaintiff's favor, defendants were not aware of Goldschmidt's need for accommodation until
after they extended, and Goldschmidt accepted, the offer. See
Feingold v. New York, 366 F.3d 138, 155 (2d Cir. 2004) (even
assuming "same actor" inference applies to Title VII actions, it
does not apply where there has been a change in circumstances).
While defendants steadfastly maintain they were aware of the need
before making plaintiff the offer, that is an issue of material
fact to be decided at trial.
Second, while Drillings and Becker identify as Jewish, they do
not identify as Orthodox Jewish, do not observe Shabbat, and do
not observe as many Jewish holidays as Goldschmidt. Even if
considered members of the same general class Jewish individuals
there is no conclusive presumption that a person will not
discriminate against members of his or her own class. Feingold,
366 F.3d at 155. In rejecting just such a presumption involving a
Jewish employer and employee, the Second Circuit invoked the
Supreme Court's admonition that it is unwise to presume people
will not discriminate against members of their own group, stating
that "[it] is no more reasonable to presume that individuals will
not discriminate against practitioners of their own religious
faith." Id. (citing Oncale v. Sundowner Offshore Servs.,
523 U.S. 75, 78 (1998)).
Similarly, defendants' argument that other Jewish employees
have been accommodated fails. While more than 40% of the
agencies' lawyers are Jewish (Def. 56.1 Statement ¶ 19), only one
other employee is an observant Orthodox Jew. That employee began employment, and presumably established his accommodated
schedule, long before White and Drillings were employed by the
agencies. (White Reply Decl. ¶ 2; Drillings Decl. ¶ 1; Ticker
Decl. ¶ 1). Moreover, he apparently had tenured civil servant
status, not vulnerable to probation extensions and discipline in
the same way as Goldschmidt. (Pl. Mem. at 12; Drillings Dep. at
28 (testifying to his belief, but not certainty, as to status)).
While plaintiff's claim is far from strong, I simply cannot
conclude that no reasonable jury could find that defendants
dismissed plaintiff, at least in part, because of his religion
and concomitant need for religious accommodation. Defendants'
motion for summary judgment on this claim therefore is
1. Applicable Law
Title VII prohibits an employer from firing an employee in
retaliation for having made a charge of discrimination.
42 U.S.C. § 2000e-3(a); see also N.Y. Exec. Law § 296(1)(e); N.Y.C.
Admin. Code § 8-107(7). "Title VII is violated when `a
retaliatory motive plays a part in adverse employment actions
toward an employee, whether or not it was the sole cause.'"
Terry v. Ashcroft, 336 F.3d 128, 140-41 (2d Cir. 2003)
(internal citations omitted). To establish a prima facie case of retaliatory discharge, Goldschmidt must show (1) he was engaged
in protected activity; (2) defendants were aware of that
activity; (3) he was discharged; and (4) there was a causal
connection between the protected activity and the termination or
suspension. Distasio v. Perkin Elmer Corp., 157 F.3d 55, 66 (2d
Cir. 1998); see Terry, 336 F.3d at 141 (2d Cir. 2003).
The term "protected activity" refers to action taken to protest
or oppose statutorily prohibited discrimination. See
42 U.S.C. § 2000e-3; see also Wimmer v. Suffolk Co. Police Dep't,
176 F.3d 125, 134-35 (2d Cir. 1991). Informal as well as formal
complaints constitute protected activity. Sumner v. United
States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990). Moreover,
to establish that his activity is protected, Goldschmidt "need
not prove the merit of his underlying discrimination complaint,
but only that he was acting under a good faith, reasonable belief
that a violation existed." Sumner, 899 F.2d at 209; see also
Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1569 (2d
A plaintiff may present proof of causation either "(1)
indirectly, by showing that the protected activity was followed
closely by discriminatory treatment, or . . . (2) directly,
through evidence of retaliatory animus directed against the
plaintiff by the defendant." Gordon v. N.Y. City Bd. of Educ.,
232 F.3d 111, 117 (2d Cir. 2000); see also Cosgrove v. Sears,
Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993).
Although the burden that a plaintiff must meet at the prima
facie stage is de minimis, the plaintiff must at least proffer competent evidence of circumstances that would be
sufficient to permit a rational finder of fact to infer a
discriminatory motive. See Cronin v. Aetna Life Ins.,
46 F.3d 196, 204 (2d Cir. 1995).
Retaliation claims are similarly governed by the
burden-shifting framework set out by the Supreme Court in
McDonnell Douglas. Terry, 336 F.3d at 141 (2d Cir. 2003).
Again, I assume that plaintiff has made out the prima facie
case required by McDonnell Douglas. Defendants have articulated
a legitimate, nondiscriminatory reason for plaintiff's dismissal,
contending that Goldschmidt was discharged for poor work
performance, arriving late to work, tending to personal chores
during the day, missing meetings, and failing to improve his
performance. (Def. 56.1 Statement ¶¶ 71, 78-93). Thus, I proceed
directly to the ultimate question of whether plaintiff has
presented sufficient evidence from which a reasonable jury could
"All too often . . . employers react negatively to the
assertion of a claim and consequently turn a weak discrimination
case into a strong retaliation case." Alvarez v. City of New
York, 31 F. Supp. 2d 334, 344 (2d Cir. 1998); see also Quinn
v. Green Tree Credit Corp., 159 F.3d 759, 762 (2d Cir. 1998).
That may be what happened here. Plaintiff complained of
discrimination on the basis of his religion in his January 14,
2002 letter to defendants, objecting to language he viewed as invoking a religious stereotype in characterizing his handling of
his accommodation. (See Def. Ex. GG, Goldschmidt letter).
Defendants interpreted plaintiff's letter as an accusation of
discrimination and reacted strongly, and negatively, to the
accusation. (Id. Ex. HH, Drillings and White letter, "tak[ing]
strongest exception . . . to the none-too-subtle reference . . .
to religious intolerance and/or discrimination"). In fact, White
stated that his optimism for plaintiff's future at the agencies
dimmed after receiving the letter. A reasonable jury could find
that defendants' next steps immediately informing plaintiff his
review would occur in only three months, not the six months
originally stated; giving plaintiff a review that restated the
identical ratings with no explanation whatsoever; and ultimately
dismissing plaintiff were taken, at least in part, because of
defendants' strong negative reactions to plaintiff's accusations.
A reasonable jury could especially reach such a conclusion in
light of defendants' "Goldschmituel" and "shrewd" comments,
reasonably construed as religious animus. Defendants' motion for
summary judgment on plaintiff's retaliation claim is denied.
D. Individual Defendants
Plaintiff's complaint states claims against defendants Becker,
White, and Drillings as individuals, for aiding and abetting the
agencies' discriminatory actions, under New York Executive Law §
296(6) and New York City Administrative Code § 8-107(6).
Plaintiff also alleges individual liability for all his
discrimination claims under New York City Administrative Code § 8-107(1)(a) and (3)(a). Defendants move to dismiss all claims
against defendants White, Drillings, and Becker in their
individual capacities. For the reasons that follow, the motion
for summary judgment on those claims is denied.
Plaintiff has presented sufficient issues of material fact for
two of his claims against the agencies to survive summary
judgment: termination based on religion and termination in
retaliation for complaining of discrimination. As set out above,
plaintiff's evidence in support of his surviving claims is based
entirely on the comments and actions of the three individual
defendants. The plain language of New York City Administrative
Code §§ 8-107(1)(a) and 107(7) provides for individual liability
of an employee engaged in discrimination and retaliation,
respectively. Therefore, defendants' argument against individual
liability under City law is rejected.
Under the same facts, plaintiff's claims against defendants
Becker, Drillings, and White for aiding and abetting the
agencies' discriminatory termination of Goldschmidt survive
summary judgment. See N.Y. Exec. Law § 296(6); N.Y.C. Admin.
Code § 8-107(6) ("It shall be an unlawful discriminatory practice
for any person to aid, abet, incite, compel or coerce the doing
of any of the acts forbidden under this article, or to attempt to
do so."). A reasonable jury certainly could find that Becker,
White, and Drillings participated in the agencies' alleged
discriminatory actions, given that the three individuals were the proponents of the discriminatory actions alleged by
plaintiff.*fn14 See Tomka v. Seiler Corp., 66 F.3d 1295,
1317 (2d Cir. 1995) ("a defendant who actually participates in
the conduct giving rise to a discrimination claim may be held
personally liable under the HRL").
The Court notes that plaintiff has not alleged individual
liability under New York Executive Law § 296(1), prohibiting
discrimination by an "employer," which may include an employee
who has ownership interest or the "power to do more than carry
out personnel decisions made by others." Patrowich v. Chemical
Bank, 63 N.Y.2d 541, 542 (1984). The Second Circuit has held
that an employee may be held individually liable under § 296(6)
as an aider and abettor, irrespective of whether he had power to
do more than carry out personnel decisions. Tomka,
66 F.3d at 1299. The Appellate Divisions of the New York Supreme Court are
split on this issue, and the New York Court of Appeals has not
decided it. Chamblee v. Harris & Harris, Inc.,
154 F. Supp. 2d 670, 677 (S.D.N.Y. 2001). Even if an employee must meet the
definition of an "employer" set out in Patrowich to be individually liable as an aider and abetter, Drillings, White,
and Becker all do so. Although the president of the agencies had
the ultimate authority to hire and fire employees at plaintiff's
level, White and Drillings effectively controlled such
determinations, recommending the dismissal of plaintiff. (Def.
56.1 Statement ¶¶ 9, 12). In addition, White and Drillings,
independently of the president, controlled probation extensions,
employee evaluations, and employee schedules. (See, e.g., Def.
Exs. DD-II). Becker, as Chairman of the agencies, surely is not a
mere employee without ownership interest or power beyond carrying
out others' personnel decisions, but acts as a principal agent of
the agencies. See Hicks v. IBM, 44 F. Supp. 2d 593, 600
Defendants' motion for summary judgment as to individual
liability on the remaining claims is denied.
E. Punitive Damages
Defendants move for summary judgment as to plaintiff's claim
for punitive damages. In their motion, defendants argue that
punitive damages are not available against public entities, such
as the agencies, under 42 U.S.C. § 1983, or under New York state
law. In his opposition, plaintiff agrees with defendants and
points out that he claims punitive damages only against the
individual defendants Becker, Drillings, and White under the
City law, which does provide for punitive damages.
Defendants then argue for the first time in their reply that
plaintiff has put forth insufficient evidence to support a claim for punitive damages under the malice standard set out for
Title VII in Kolstad v. American Dental Assoc., 527 U.S. 526
(1999), and as applied by courts in actions for punitive damages
under New York City Administrative Code § 8-502. See, e.g.,
Umansky v. Masterpiece Int'l Ltd., 715 N.Y.S.2d 638, 639 (2d
Dep't 2000). Defendants raise this argument for the first time in
their reply brief. Therefore, I do not consider it now, United
States v. Gigante, 39 F.3d 42, 50 n. 2 (2d Cir. 1994), but will
address it before or at trial after plaintiff has had an
opportunity to be heard. Defendants' motion for summary judgment
as to plaintiff's claim for punitive damages against the
individual defendants is denied.
For the reasons set forth above, defendants' motion for summary
judgment is granted in part and denied in part. The parties shall
appear for a pretrial conference on August 19, 2005 at 2:00 p.m.