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Leifer v. New York State Division of Parole

January 23, 2007


The opinion of the court was delivered by: Sifton, Senior Judge.


Plaintiff George Leifer ("Leifer") brings this action against defendants the New York State Division of Parole ("Division") and James Dress ("Dress"), the Regional Director of the Queens, Brooklyn and Staten Island areas of the Division, alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. ("Title VII"), 42 U.S.C. §§ 1981 and 1983, the New York State Human Rights Law, New York Executive Law § 290 et seq. ("NYSHRL"), and the New York City Human Rights Law, N.Y.C. Administrative Code §8-101 et seq. ("NYCHRL"). Specifically, plaintiff claims that defendants discriminated against him based on his religion and retaliated against him for complaining about the discrimination.

Presently before the Court is defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons that follow, defendants' motion for summary judgment is granted.


The following facts are taken from the parties' depositions, affidavits, exhibits, and Local Rule 56.1 statements. Disputes are noted.

The Division of Parole is the New York State Agency responsible for the supervision of inmates released from New York State prisons before the completion of their prison sentences. Defendant Dress is the Regional Director of the Queens, Brooklyn, and Staten Island geographic areas. Plaintiff is a Jewish male who began working for the Division as a Parole Officer ("PO") in September of 1987. In August of 1993, plaintiff was promoted to the position of Senior Parole Officer ("SPO"). As an SPO, plaintiff supervises other POs and their caseloads. In September 2001, plaintiff requested and was granted a transfer from the Manhattan II office to the Queens Metro I Area ("Queens 1"). Jay Powers ("Powers"), the Bureau Chief of Queens 1, advised plaintiff that he would not be "stepping into the Garden of Eden" by transferring because there were "serious staff problems" in the Queens office. (Dep. of plaintiff 3/31/05, p. 8, Defendants' Exhibit F).

Shortly after plaintiff's transfer to Queens 1, the Division scheduled a meeting for the Jewish holiday of Rosh Hashanah, which fell on September 19, 2001. Plaintiff notified his supervisors that the meeting date was scheduled for a Jewish holiday and asked that it be rescheduled. The meeting was not rescheduled. However, plaintiff was not penalized for his absence. On September 20, 2001 plaintiff wrote a memorandum to Powers and the Deputy Regional Director Angela Jimenez ("Jimenez"), requesting that future meetings not be scheduled on Jewish holidays, and that a second meeting be arranged for the benefit of those SPOs who were unable to attend the first meeting due to religious observance. (Defendants' exhibit L). Defendant Dress received a similar memorandum. (Defendants' exhibit Q.) Although defendant Dress states that he directed Powers to ensure that plaintiff was informed of what happened at the meeting, plaintiff alleges that Powers (who is now deceased) failed to do so.

On November 28, 2001, plaintiff attended several meetings held at Queens 1, along with Jimenez, Powers, and several of the POs under plaintiff's supervision. (Defendants' Exhibit G). Plaintiff alleges that at these meetings he was "blame[d] for the behavior of Defendant,"*fn1 and that this encouraged his subordinates to question his authority. Defendants contend that the meetings were held to address various complaints from the plaintiff regarding the behavior of his subordinates. (Defendants' Exhibit O, ¶¶ 25-26). An undated "Petition for Relief" was submitted by four POs under plaintiff's supervision requesting that plaintiff undergo sensitivity counseling, cease his "unprofessional behavior of posturing and harassment," and be removed from Queens 1. (Defendants' Exhibit H). Following the meetings, Robert Oeser from the Division's Employee Relations office concluded in a December 4, 2001 report that "[t]he systemic problems in the unit need to be resolved at a regional level," and that "any successful strategy for resolution would need to include counseling and training for SPO Leifer." (Defendants' Exhibit G).

Three weeks later, on December 26, 2001, plaintiff filed a Grievance alleging that the Division allowed his subordinates to be hostile and disrespectful to him,*fn2 undermining his ability to discipline them. At a January 14, 2002 meeting with defendant Dress regarding the Grievance, at which Dress also addressed plaintiff's complaints about the September 19, 2001 meeting, plaintiff alleges that Dress stated: "What gives you the audacity to protest my supervisor's meeting? Your religious laws and customs are not binding on me. I will not reschedule meetings because of some Jewish holiday." Defendant Dress denies having used such language, and states that he merely explained that in deciding when to schedule a meeting the "personal observances of individual employees [are] a lesser factor than some of the larger concerns facing Parole."

On January 17, 2002, defendant Dress issued a Decision on plaintiff's Grievance. Although Dress noted that plaintiff's allegations concerning the Division's misconduct were unproven, he agreed that the plaintiff "should not have to work in or be subjected to the type of hostile environment" described, and determined that the regional office would "monitor the ongoing situation" (Defendants' Exhibit K). Dress declined to implement plaintiff's suggestion that one of plaintiff's subordinates be transferred, and rejected plaintiff's contention that plaintiff's supervisors were not responsive to his requests for assistance.

On January 28, 2002, Bureau Chief Powers sent plaintiff a counseling memorandum, criticizing plaintiff for two incidents in late January regarding a new parole officer under his supervision, PO Marcelin.*fn3 Plaintiff alleges that this counseling memorandum was issued in retaliation for plaintiff's religious discrimination complaint,*fn4 and that the actions for which he was cited were not standard violations of any "manual item, policy or procedures." (Defendants' Exhibit J). Plaintiff further alleges that the fact that he was reprimanded for mistakes made by his subordinate, who was not herself counseled, is evidence of an improper purpose behind the reprimand. Because Powers did not follow the required protocol of meeting with Leifer prior to issuing the counseling memorandum, the memorandum was subsequently withdrawn.

For the period of August 12, 2001 through August 12, 2002, plaintiff received what he considered to be a negative personnel evaluation. Defendants state, and plaintiff does not dispute, that plaintiff's evaluation was "satisfactory." However, plaintiff maintains that it contained "attacks and punishing language."*fn5

On January 2, 2003, the Division issued a Notice of Discipline to plaintiff for mishandling the routine transfer of a parolee.*fn6 Plaintiff challenged the Notice. It was eventually affirmed in arbitration, although the Arbitrator reduced the penalty from thirty days suspension without pay to two days of suspension without pay (Defendants' Exhibit Z).

On January 27, 2003 and again on February 6, 2003, shortly after the Notice of Discipline was issued, plaintiff alleges that PO Redd, one of his subordinates, came by his office and shouted "Suspension! Suspension! Suspension!" Plaintiff alleges that his supervisors told his subordinates about the suspension in an attempt to undermine his authority. Defendants deny knowledge as to how PO Redd acquired information regarding plaintiff's suspension.

Plaintiff filed a complaint, dated March 10, 2003, with the New York State Division of Human Rights ("SDHR") alleging religious discrimination by the Division.*fn7 (Defendants' Exhibit C).

Plaintiff alleges that at a March 27, 2003 meeting, defendant Dress stated: "You are different. You are not like the rest of us. You don't fit in here...You don't curse. You don't scream and yell at people, yet you are dangerous...You are like Saddam Hussein." Dress denies making such a statement.

In April of 2003, a training program on new drug testing equipment was scheduled for June 6, 2003, the Jewish holiday of Shavuot. Plaintiff notified his supervisors that he would be unable to attend as he would be observing the Jewish holiday, and his absence was excused. Plaintiff alleges that he requested that he be allowed to attend the training for another bureau, and his request was denied. Defendant contends that employees who could not attend the June 6 training were allowed to attend training in other bureaus, or were trained by a colleague. Plaintiff maintains that he never received training on the new drug testing equipment.

In September of 2003, plaintiff's wedding picture, which he kept on his desk at the Division, was vandalized. An unknown person drew horns on plaintiff's head and a beard on his wife's face. Plaintiff notes that this act had anti-Semitic overtones.*fn8

Although the Division's Office of Professional Responsibility (OPR) conducted an investigation at the time of the incident and a second investigation in 2005,*fn9 plaintiff alleges that the investigations were "very minimal and absolutely inappropriate," and that the defendant should have examined his wedding photograph for fingerprints as part of the investigation. A few months earlier plaintiff found a crowbar in his office file cabinet,*fn10 and what he believed to be urine on his desk chair. Defendants investigated the incident involving the chair,*fn11 and maintain that plaintiff never requested an investigation regarding the crowbar. Plaintiff claims that defendants failed to adequately investigate these incidents and that defendants should have conducted DNA testing on his chair.

In February of 2004 plaintiff was notified that his testimony would be required at an April 9, 2004 hearing regarding a subordinate who had physically threatened him. As April 9, 2004 was one of the intermediate days of Passover, plaintiff requested additional lunch time from his supervisor in order to eat at a Kosher establishment. Plaintiff alleges that Defendants' employee Robert Oeser told plaintiff: "[I]f I allow you to do this, my whole day is ruined...this is your problem...request denied." Oeser denies making any such statement (Defendants' Exhibit O, ΒΆΒΆ 19-20). In a memo dated February 24, 2004, Jose Burgos, the Director of Human Resource Management informed plaintiff that he would no longer be required to testify at the hearing. (Defendants' Exhibit V). ...

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