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GOLDSCHMIDT v. NEW YORK STATE AFFORDABLE HOUSING CORP.

August 8, 2005.

DANIEL J. GOLDSCHMIDT, Plaintiff,
v.
NEW YORK STATE AFFORDABLE HOUSING CORPORATION et al., Defendants.



The opinion of the court was delivered by: DENNY CHIN, District Judge

OPINION

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 ¶ 1).*fn1 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 accommodation. (Id.).

  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.
(Id.).

  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. E).

  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 year. (Id.).

  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.
(Id.).

  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 them.
(Id.).

  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. ¶ 25).

  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.

  DISCUSSION

  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 ...


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