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Israel v. Napolitano

August 23, 2010

BRIAN ISRAEL, PLAINTIFF,
v.
JANET NAPOLITANO,*FN1 AS SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, BY AND THROUGH THE U.S. BUREAU OF BORDER AND CUSTOMS PROTECTION, DEFENDANT.



The opinion of the court was delivered by: Gary L. Sharpe District Court Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiff Brian Israel commenced this action against defendant Janet Napolitano, Secretary of the Department of Homeland Security (DHS), under Title VII of the Civil Rights Act of 1964*fn2 and the Civil Rights Act of 1991,*fn3 alleging employment-related discrimination based on religion. (See generally Compl., Dkt. No. 1.) Pending is Napolitano's motion for summary judgment. (Dkt. No. 15.) For the reasons that follow, the motion is denied.

II. Background

Plaintiff Brian Israel is a Canadian born, naturalized American citizen who is Jewish. (See Compl. ¶ 16, Dkt. No. 1.) Following a one-year appointment from May 1998 to May 1999, Israel was employed by DHS from August 25, 2002, to July 10, 2007. (See id. at ¶¶ 7-9.) During this time, Israel worked as a Customs and Border Protection (CBP) Officer at the International Port of Entry at Champlain, New York. (See id. at ¶ 7.)

Over the course of his employment, Israel alleges that he was subjected to repeated anti-Semitic harassment by his co-workers and supervisors. (See id. at ¶¶ 19-23.) Specifically, during his first year-long employment, Nazi swastikas and Waffen-SS lightning bolts were affixed to Israel's work locker. (See id. at ¶ 19.) And according to Israel, DHS performed an internal affairs investigation of this incident but failed to take any corrective action. (See id. at ¶ 20.) Following the conclusion of Israel's temporary employment, but prior to his rehiring, management at the Champlain Port of Entry allegedly made disparaging remarks about Israel in an attempt to prevent him from being rehired. (See id. at ¶ 21.)

After Israel was rehired in 2002, his co-workers and supervisors continued to harass and insult him based on his Jewish heritage. According to Israel, buses carrying groups of Hasidic Jews would regularly travel through the Champlain Port of Entry from Montreal to New York, to which his co-workers and supervisors would refer as "the Jew cruiser," the "Hanukkah Harry bus," "the Jew bus," "the smelly Jew bus," and "Harry the Herdsman's bus." (See Pl. SMF ¶ 15, Dkt. No. 24 (citing Pl. Ex. A, Israel Dep. at 44-54, Dkt. No. 24:1).) While being subjected to these references, Israel was further told by his supervisors to go out and handle the bus since the occupants "are [his] people" and that "maybe [he] will find [himself] a bride." (See id.) In addition, Israel alleges that he has been ridiculed for his association with Rabbi Mayer Birnhack, chaplain for the New York Police Department and Department of Defense Police. (See id. (citing Pl. Ex. A, Israel Dep. at 52, Dkt. No. 24:1).) Lastly, Israel testified to overhearing a fellow officer, William Prudhon III, say that he "jewed the Jew bastard down, that Jew bastard." (Pl. Ex. A, Israel Dep. at 49-50, Dkt. No. 24:1.)

On January 2006, Israel complained to his local union President, Thomas O'Keefe, and met with and complained to the Champlain Port of Entry Director, Christopher Perry. (See Pl. SMF ¶ 15, Dkt. No. 24.) However, according to Israel, Perry did not take any action to address his complaints. (See id.)

In January 8, 2007, the CBP Office advised Israel by letter that it was proposing his removal for misconduct. (See Def. SMF ¶ 14, Dkt. No. 15:2 (citing Def. Ex. A-4b, Dkt. No. 16:1).) Specifically, based on three incidents that occurred on May 7, 2005, July 2, 2005, and January 4, 2006, the CBP charged Israel with "Conduct Unbecoming an Officer," "Failure to Follow Supervisory Instructions," and "Lack of Candor." (See id. at ¶¶ 1, 7, 12, 14.) On April 4, 2007, Israel appeared before James T. Engleman, Director of Field Operations, to dispute these charges. (See id. at ¶ 14.) Engleman thereafter sent to Israel a letter dated July 9, 2007, in which he concluded that removal was warranted. (See id. (citing Def. Ex. A-4a, Dkt. No. 16:1).) Engleman's decision then became subject to review by the CBP's Merit Systems Protection Board.

On July 23, 2007, Administrative Judge JoAnn M. Ruggiero issued a notice to Israel informing him that she would be reviewing his removal. (See Def. Ex. B, Dkt. No. 16:3.) A hearing was subsequently held from March 5 to March 7, 2008, after which Judge Ruggiero issued a decision affirming Israel's removal. (See Def. Ex. E, Dkt. No. 17:3.) Israel subsequently filed a petition for review with the full Merit Systems Protection Board, which was denied. (See Def. Ex. F, Dkt. No. 17:4.) Both the Board and Judge Ruggiero notified Israel that he could file either a petition with the Equal Employment Opportunity Commission (EEOC) or a civil action in federal court.

On August 27, 2008, Israel filed a petition with the EEOC, seeking review of the Board's final decision. (See Def. Ex. G, Dkt. No. 17:5.) The EEOC denied Israel's petition and issued a right-to-sue letter. (See id.)

On October 17, 2008, Israel brought suit against defendant Michael Napolitano for religious discrimination. (See Compl., Dkt. No. 1.) In asserting this claim, Israel sought actual and compensatory damages, reinstatement, attorneys' fees and costs, and injunctive relief. (See id. at 7.) Following discovery, Napolitano moved for summary judgment.*fn4 (See Dkt. No. 15.)

III. Standard of Review

The standard for the grant of summary judgment is well established, and will not be repeated here. For a full discussion of the standard, the court refers the parties to its previous opinion in Bain v. Town of Argyle, 499 F. Supp. 2d 192, 194-95 (N.D.N.Y. 2007). In the fact-intensive context of a discrimination action, "direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions." Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001); see also Gallo v. Gallo v. Prudential Residential Servs., Ltd. ...


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