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SHAIN v. CENTER FOR JEWISH HISTORY

September 19, 2005.

RABBI DAVID SHAIN and BELLA PARNES Plaintiffs,
v.
CENTER FOR JEWISH HISTORY, INC. Defendant.



The opinion of the court was delivered by: NAOMI BUCHWALD, District Judge

MEMORANDUM AND ORDER

Plaintiffs Bella Parnes and Rabbi David Shain bring this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by 42 U.S.C. § 1981 ("Title VII"), the New York State Human Rights Law, Executive Law § 296, et seq., and the New York City Human Rights Law, Administrative Code of the City of New York, Section 8-101, et seq. for alleged religious discrimination in their workplace. Plaintiffs worked for the Center For Jewish History, Inc. (the "Center"), an institution comprising five Jewish charitable organizations. Plaintiffs allege that Center employees, the vast majority of whom are either Jews who are less observant than plaintiffs or are non-Jews, subjected them to discrimination because of bias against plaintiffs' level of religious observance, and that they were terminated by the Center for discriminatory reasons and were subjected to a religiously hostile work environment.

Plaintiff Parnes also complains of sex and age discrimination, and brings this action pursuant to the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621, et seq. (the "ADEA") and pursuant to the gender discrimination provisions of Title VII, as well as under the aforementioned provisions of New York State and New York City Human Rights Law.

  Defendant now moves for summary judgment against all of plaintiffs' claims. For the reasons set forth herein, defendant's motion is granted in part and denied in part.

  BACKGROUND*fn1

  A. Plaintiff Shain

  Rabbi David Shain is an Orthodox Hasidic Jew of the Chabad Sect. He therefore observes Jewish religious laws strictly, including wearing a yarmulkeh on his head, wearing tzitzis (religious fringes) showing on the outside of his clothing, and refraining from cutting his beard.

  The Date Palm Café ("Café") is the Center's cafeteria. Village Crown, a catering company, ran the Café for some time until March of 2002. From January through March of 2002, Shain worked in the Café as a Mashgiach, a person who supervises food preparation to make sure it abides by kashruth, the Jewish dietary laws. When Village Crown left the Café, Shain proposed to Michael Winter, Chief Operating Officer of the Center, that he take over the operation of the café with the backing of an investor. Instead, Winter hired Shain as the Center's employee to manage the Café as well as to be its Mashgiach.

  In mid-May 2002, Bruce Slovin, Chairman of the Board of the Center, visited the Café, and suggested to Shain that he trim his beard. Shain explained that his religious practice forbids him to do so. Slovin responded by commenting that when he was a child he ate only kosher food and thought he would die if he ate non-kosher food, but when he grew up a friend convinced him to eat non-kosher food and he survived. Am. Compl. ¶ 17; Shain Affirmation 3; Otero Affidavit ¶ 2.

  Slovin visited the Café again in June 2002 and criticized the appearance of some salads, and remarked to Shain that he should let Angela Otero, Shain's non-Jewish subordinate at the Café, dress food platters because, "as a non-Jew she knew more about food presentation." Shain Affirmation ¶ 7. Some time during the summer of 2002, Slovin allegedly came to the Café, pointed to Shain's tzitzis and said "I used to wear those when I was a child." Shain Affirmation ¶ 9.

  From the beginning of Shain's employment at the Center, Philip Wilner, the manager of the Center gift shop, berated him for his supposedly unkempt appearance and that of the Café. Otero Affidavit ¶ 9-14. Wilner is an Orthodox Jew, but is not Hasidic. During the summer or fall of 2003, Shain alleges that Wilner's criticisms of his appearance and the appearance of the Café increased. At the same time, the Café's clientele increased substantially, especially its clientele of Hasidic Jews. Otero Affidavit ¶ 14-18. Wilner indicated to Otero that Slovin did not want Hasidic Jews coming to the Café and preferred a wealthier clientele that would donate money to the Center. Otero Affidavit ¶ 24.

  In October 2002, Parnes allegedly overheard Slovin remark to Rabbi Joshua Plaut, the Executive Director of the Center, that Shain "looks sloppy with his tzitzis" and that he did not want anyone with a beard or tzitzis working in the Café. Am. Compl. ¶ 37; Parnes Affirmation ¶ 30. Parnes also heard Slovin tell Rabbi Plaut that the Orthodox rabbinical organizations that give hechschers (rabbinical approval indicating that food has been prepared in accordance with kashruth) are thieves.

  In December 2002, Slovin noticed two employees of one of the Center's partner organizations who were eating in the Café. Slovin approached the employees and spoke with them for a few minutes, then stood up and said in a loud voice: "I'm against organized religion." Shain Affirmation ¶ 13. He then walked over to Shain, demanded a glass of ice water and "gave [him] a dirty look." Id. When Shain asked one of the people to whom Slovin had been speaking what had happened, she told Shain that Slovin had criticized Shain's beard and told her that he intended to get a new caterer. Id.

  In early January 2003, James Burke, a colleague of Ira Berkowitz, the Chief Financial Officer of the Center, told Shain that the Center intended to fire him whether or not it found a new caterer, but would keep Otero and the other Café employees. Shain Affirmation ¶ 15.*fn2 Around the same time, Placid Dingue, who worked for Mr. Berkowitz in the Center's business office, told Shain the Café was beginning to make money. Otero Affidavit ¶ 26. Shain spoke with Slovin and asked him about the Café's finances, explaining that Winter had meddled in a decisions about which ...


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