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
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
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.).
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.).
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 ...