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Frenkel v. New York City Off-Track Betting Corp.

March 30, 2010



Plaintiff Zholtan Frenkel ("Plaintiff" or "Frenkel"), a former employee of Defendant New York City Off-Track Betting Corp. ("Defendant" or "OTB"), alleges that OTB violated his "federal constitutional and statutory rights" by failing to comply with the terms of the settlement of an earlier employment discrimination action, fostering or tolerating a hostile work environment in which Plaintiff suffered harassment and mistreatment based on his religion, demoting him, and subjecting him to disparate treatment for discriminatory and retaliatory reasons. Plaintiff's Amended Complaint refers to 42 U.S.C. §1983 ("Section 1983"), the equal protection and due process clauses of the Fourteenth Amendment to the Constitution, and the First Amendment to the Constitution in connection with these claims. Frenkel seeks to recover damages. The Court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1331 and 1343.

Magistrate Judge Peck issued an Opinion ("Opinion") on May 4, 2009 (docket entry no. 46), recommending that Frenkel's motion for leave to amend his complaint to assert a cause of action against OTB for "undermining" the earlier settlement agreement be denied as futile. Frenkel has filed timely objections to the Opinion. Before the Court now are Frenkel's objections to the Opinion and OTB's motion for summary judgment. The Court has considered thoroughly all of the parties' submissions and arguments in connection with each motion. For the following reasons, the Court adopts Judge Peck's recommended disposition of Frenkel's motion to amend the complaint, and OTB's motion for summary judgment is granted.


The following facts are undisputed unless otherwise noted.

Frenkel I

Frenkel began his employment at OTB around January of 1979 as an electronic technician. (Frenkel Dep. 23:21-24.) On October 23, 2003, Frenkel brought a federal employment discrimination suit against OTB under Title VII of the Civil Rights Act of 1964. Frenkel alleged a denial of the opportunity for promotion to the position of supervising electronic technician based on religious discrimination. Frenkel v. New York City Off-Track Betting Corporation, No. 03 Civ. 8293 (S.D.N.Y. 2003) ("Frenkel I"). On August 17, 2004, a "Stipulation and Order of Settlement and Discontinuance" was entered and signed in Frenkel I (docket entry no. 14). The settlement provided for, among other things, the payment of $19,999 in back wages to Frenkel and Frenkel's promotion to the position of supervising electronic technician. Id. at *2-4. The settlement also provided that, in accordance with the OTB Employee Handbook, Frenkel's promotion to supervising technician would be subject to a one year probationary term. (Capell Decl. Exs. J-K.)

OTB is a public benefit corporation that operates a network of 68 facilities for the purpose of off-track pari-mutuel wagering on horse races in New York City. See N.Y. Rac. Pari-Mut. Wag. & Breed. L. § 603 (McKinney 2009); (Capell Decl. Ex. AA; Block Decl. ¶ 5.) From 2002 to the present, Raymond Casey has been President and Chief Executive Officer of OTB.

(Capell Decl. Ex. AA; Block Decl. ¶ 4.) The Office of Equal Employment Opportunity ("OEEO") of OTB investigates internal complaints of discrimination on account of one's religion, among other protected categories, as well as complaints of retaliation. According to the OEEO manual, after its factual investigation of a complaint, an investigating officer provides reports and recommendations as to appropriate disciplinary action, if any. The OEEO also mediates disputes between OTB employees regarding possible discriminatory conduct and trains OTB employees on the subject of workplace discrimination and how to properly file complaints concerning perceived or actual discriminatory conduct. (Capell Decl. Ex. C; Tall Decl. ¶¶ 5-7.)

Events After Promotion Pursuant to the Frenkel I Settlement

Frenkel alleges that following his promotion, new rules were put in place that forbade supervisors from sending technicians from one borough to another and directed the less senior supervisors such as himself to work with less experienced technicians. (Compl. ¶¶ 25-27.) At his deposition, Frenkel attributed these policies to his direct supervisor, Miguel Martinez ("Martinez"), but conceding that the seniority rule may have applied to all supervisors, and that he has no knowledge of whether other supervisors had to follow the rule about dispatching technicians during the time that he was a supervisor. (Frenkel Dep. 76:13-16, 161:20-21.)

On September 26, 2004, Frenkel notified Martinez that a smashed muffin was lying in a puddle of coffee on his chair. This incident was not reported to the OEEO. (Capell Decl. Ex. D; Tall Decl. ¶ 33.) Frenkel contends that he notified Martinez of his belief that the incident was religiously motivated. (Frenkel Aff. ¶ 9A.)

Around September of 2004, Frenkel wrote a letter to Martinez claiming that one of Frenkel's subordinates, Anthony Monaco ("Monaco"), was deliberately ignoring calls to his Nextel radio. (Capell Decl. Ex. L.) On December 2, 2004, Patricia McDonnell Riggio ("Riggio"), OTB's Executive Director of Human Resources, wrote a letter to Monaco informing him that disciplinary charges for insubordination were to follow. Monaco was subsequently suspended without pay pending a hearing on those charges. (Capell Decl. Ex. N.) On September 14, 2004, a group of Frenkel's subordinates, including Monaco, Calvin Armstrong ("Armstrong") and Scott Zagata ("Zagata"), approached Martin Tall ("Tall"), an OEEO officer, to complain about Frenkel's recent promotion, claiming that others who had been passed over for a promotion were more qualified. That same day, Frenkel approached Tall, who informed Frenkel that he could not discuss the subject of his conversation with Frenkel's subordinates. (Tall Decl. ¶ 16.) On December 22, 2004, Monaco filed a cross-complaint with the OEEO against Frenkel, alleging that Frenkel had retaliated against him for complaining about Frenkel's promotion, but no disciplinary action was taken. (Capell Decl. Ex. BB; Tall Decl. ¶ 17.)

On December 6, 2004, Frenkel discovered on his desk a document about the "Kapos," concentration camp prisoners of the Jewish faith that supervised and disciplined fellow prisoners on behalf of Nazi guards. Frenkel brought the article, as well as the addition of his name to a handwritten "List of Idiots" on the inside of an OTB van, to the attention of Doreen Wong ("Wong") and Tall,*fn1 who memorialized the complaints in a letter on December 16. (Capell Decl. Ex. M; Tall Decl. ¶ 11.) Wong and Tall investigated both complaints, interviewing 26 different employees. Kenny Fingeret ("Fingeret"), a technician, admitted to bringing the "Kapos" article to work to discuss with supervising technician David Lazerus ("Lazerus"), because he was a "history buff," but denied placing the article on Frenkel's desk. (Capell Decl. Ex. M; Tall Decl. ¶ 12.) Wong and Tall were unable to find any discriminatory purpose in Fingeret bringing the article to work, nor were they able to determine who had written on the inside of the van, and the OEEO declined to initiate disciplinary proceedings against anyone. (Tall Decl. ¶¶ 11-15.)

On March 5, 2005, Riggio wrote a letter to Frenkel offering him a nine-month extension of the probationary period of his promotion, which Frenkel accepted in writing three days later. (Capell Decl. Ex. R.) During that period, a meeting took place with OTB management to address Frenkel's communication skills, in which Frenkel discussed his concern that Lazerus and Zagata were emboldening his co-workers to retaliate against him for his promotion. (Frenkel Aff. ¶ 14B.) On May 31, 2005, Carmelo FanFan ("FanFan"), Senior Director of Telecommunications at OTB since 2002, ordered Frenkel to take part in a management and conflict resolution training class, a course that Frenkel assumed was mandatory for all supervising technicians, as Lazerus was also present. (Frenkel Aff. ¶ 12.) On June 10, 2005, FanFan sent Frenkel a letter detailing the complaints about his performance as a supervising technician and offering suggestions as to how he might improve. (Capell Decl. Ex. Q; FanFan Decl. ¶¶ 13-14.) The complaints included allegations from Frenkel's subordinates of verbal abuse, unfair discipline, excessive monitoring, inefficient dispatching of technicians from one borough to the other and, on one occasion, instructing a subordinate to dismantle a rooftop satellite dish in a dangerous manner. (FanFan Decl. ¶¶ 9-11.)

On January 20, 2006, Frenkel wrote FanFan a letter describing a January 16 verbal altercation between himself and Miranda over Miranda's late arrival from the OTB Central Repair Facility ("CRF").*fn2 According to the letter, during the altercation Miranda called him a " jew" and said that "the Nazis should have finished the job." Frenkel also asserted that, as already reported to Martinez, Miranda had given a Nazi-style salute on at least six prior occasions when Frenkel walked by. (Capell Decl. Ex. S; Frenkel Aff. ¶ 16.) The OEEO investigated Frenkel's claims, but was unable to find another employee at OTB to substantiate them. (Tall Decl. ¶¶ 25-30.) Frenkel only complained to the OEEO about the Kapos incident, the "List of Idiots," and the alleged anti-Semitic remarks and gestures by Miranda. He did not make OEEO complaints concerning the other alleged disparate treatment or hostile workplace acts described in his complaint and evidentiary submissions on this motion. (Pl. and Def. Local R. 56. 1 Stmts. ¶ 110; Tall Decl. ¶ 33.) Plaintiff also complains generally and asserts in conclusory terms that his supervisors were not supportive of him in disputes with his subordinates, that the OEEO investigations were one-sided and biased, and that the results of the OEEO investigations, and ...

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