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Yoselovsky v. Associated Press

United States District Court, S.D. New York

January 18, 2013

Martin YOSELOVSKY, Plaintiff,

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[Copyrighted Material Omitted]

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Peter George Eikenberry, The Law Office of Peter G. Eikenberry, New York, NY, for Plaintiff.

Joseph Blaise Cartafalsa, Robert Mossman Tucker, Valerie J. Bluth, Putney, Twombly, Hall & Hirson, LLP, New York, NY, for Defendant.


FRANK MAAS, United States Magistrate Judge.

Plaintiff Martin Yoselovsky (" Yoselovsky" ) brings this suit against his former

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employer, The Associated Press (" AP" ), contending that the AP terminated him because he requested accommodations so that he could observe the weekly Jewish Sabbath and other religious holidays. Yoselovsky seeks relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (" Title VII" ), the New York Human Rights Law, N.Y. Exec. Law § 290 et seq. (" NYSHRL" ), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 (" NYCHRL" ). The AP now has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (ECF No. 20). For the reasons that follow, the motion is granted.

I. Factual Background [1]

The AP is a not-for-profit news gathering cooperative based in New York City, that employs approximately 3,500 people at more than 240 locations worldwide. (Def.'s Stmt. of Undisputed Facts (ECF No. 22) (" Def.'s Stmt." ) ¶ 1). Yoselovsky is an Orthodox Jew, whose faith requires that he not work on the Sabbath (from sundown on Friday until one hour after sundown on Saturday) and on certain holidays. ( Id. ¶ 9).

On May 12, 2008, the AP hired Yoselovsky as a Manager in the Customer Integration section of Customer Solutions, a division of the AP's Technology Solutions department, at a salary of $115,000 per year. ( Id. ¶ 2). Yoselovsky worked out of the New York office. ( Id. ). A substantial part of Yoselovsky's duties at the AP required him to oversee the efforts of three, and later, four Customer Integration Specialists who worked on the Customer Integration Team (" CIT" ). ( Id. ¶ 3). The CIT was tasked with a significant project that involved transitioning the AP's receipt and provision of media content from print news and satellite technologies to mobile news and internet-based technologies. ( Id. ¶ 4).

From May to November 2008, Yoselovsky reported directly to Michael Pachter (" Pachter" ), who was then the Manager of Customer Solutions. ( Id. ¶ 5). Close to the time he began working at the AP, Yoselovsky met with Merrie Singer (" Singer" ), the AP's Director of Human Resources for Technology and Business Operations. ( Id. ¶ 27). At that meeting, Yoselovsky raised his need for accommodations because of his religious beliefs. ( Id. ¶ 96; Pl.'s Opp. Stmt. to Def.'s Stmt. of Undisputed Facts (ECF No. 32) (" Pl.'s Opp. Stmt." ) ¶ 1). Singer, who is Jewish, explained the AP's various benefit programs, including paid time off for vacation and personal matters. (Def.'s Stmt. ¶ 27). Singer recalls discussing with Yoselovsky the AP's general policy of granting employees eleven holidays each year (eight stated holidays, plus the employee's birthday and two personal holidays). ( Id. ¶ 28). She further recalls telling Yoselovsky that the AP would accommodate requests for schedule changes for religious days of observance, and that he could substitute any religious holiday for any of the stated holidays. ( Id. ¶¶ 27-28). Yoselovsky, however, denies that he and Singer discussed taking time off for religious observances, or that she ever informed him of the AP's policies regarding the substitution of religious holidays. (Pl.'s Opp. Stmt. ¶¶ 27-28). Regardless, it is undisputed that Singer told Yoselovsky that he should speak directly to his manager about any

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need to take time off for religious reasons. (Def.'s Stmt. ¶ 29).

In June 2008, Yoselovsky took off two days for the Jewish holiday of Shavuot. ( Id. ¶ 97; Pl.'s Opp. Stmt. ¶ 1). Later that year, in September, Yoselovsky met with Pachter and asked that he be allowed to work from home each Friday during Eastern Standard Time. (Def.'s Stmt. ¶ 30). Yoselovsky also requested time off for religious holidays, including several holidays in October 2008. ( Id. ¶ 31). Pachter approved both requests and allowed Yoselovsky to work from home every Friday. ( Id. ¶ 32; Pl.'s Stmt. of Disputed Facts (ECF No. 31) (" Pl.'s Stmt." ) ¶ 1).

Yoselovsky maintains that his work environment at the AP became " stressful and tense," after he took time off for the October religious holidays. ( Id. ¶ 14). In an email dated October 30, 2008, Pachter informed Yoselovsky that his monthly report was not properly organized " with the priorities at the top." (Def.'s Stmt. ¶¶ 43-44; Ex. K).[2] Pachter advised Yoselovsky to change the font and " make the important things stand out more by reordering the sections." (Def.'s Stmt. ¶ 45). He also offered to help Yoselovsky, stating that, " you can take a look at [the edits] or we can do it quickly together." ( Id. ¶ 46).

In November 2008, after Pachter left his position in the Customer Solutions Department, Yoselovsky began reporting for a short period of time to Ankur Ahluwalia (" Ahluwalia" ), Deputy Director of the AP's Technology Solutions Department. (ECF No. 25 (Aff. of Martin Yoselovsky, sworn to on Oct. 19, 2012 (" Yoselovsky Aff." )), ¶ 27). Around that time, Ahluwalia and Yoselovsky had a conversation about Yoselovsky's schedule. (Def.'s Stmt. ¶ 34). Ahluwalia was surprised to learn that Yoselovsky had been allowed to work from home every Friday, but offered a revised accommodation whereby Yoselovsky would be permitted to work from home every other Friday during Eastern Standard Time, and could both report to work and depart earlier on the alternate Fridays, to ensure that he would be home before sunset. ( Id. ¶ 35; Aff. of Ankur Ahluwalia, sworn to on Sept. 6, 2012 (" Ahluwalia Aff." ), ¶ 3).[3] Yoselovsky agreed that Ahuluwalia's offer constituted a reasonable compromise and thanked him for the accommodation. (Def.'s Stmt. ¶ 36).

On November 12, 2008, Ahluwalia met with Yoselovsky to discuss his performance and the need for him to increase both the quality and the quantity of his work. ( Id. ¶ 48). Specifically, Ahluwalia informed Yoselovsky that he needed to devote additional time to his work, maintain a professional and constructive tone in his supervisory communications with CIT members, improve the quality and timeliness of his reports to higher management, and meet deadlines. ( Id. ¶ 49). Ahluwalia summarized the substance of the meeting in an email to Yoselovsky dated November 26, 2008. ( Id. ¶ 50; Ex. H). In that email, among other things, Ahluwalia stated that he had advised Yoselovsky that it was " unacceptable" for Yoselovsky to " vent frustration in front of [CIT] members" and that, given his " managerial role" and the " 24x7 nature of the news business," he needed to be " present at work a minimum of 37.5 hours a week." (Ex. H at 2).

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Yoselovsky has a different recollection of certain of the events in November. According to Yoselovsky, during the November 12 meeting, Ahluwalia told him that his " absence from work during the Sukkot holidays (in October) was not authorized." (Yoselovsky Aff. ¶ 21) (explanatory parenthetical supplied). Ahluwalia purportedly also remarked, " you know Martin, this is a professional organization— you need to work on Saturday if we need you to." (Yoselovsky Aff. ¶ 22; Pl.'s Opp. Stmt. ¶¶ 48-50). Yoselovsky responded that " it was unfair for [Ahluwalia] to accuse [him] of taking allegedly unauthorized days off during the Sukkot holidays because they were authorized by Pachter in a previously agreed upon holiday work schedule." (Yoselovsky Aff. ¶ 23). Two or three days afterward, Yoselovsky further told Ahluwalia that " it was unfair for him to criticize [Yoselovsky's] observance of the Sabbath." ( Id. ¶ 24). In his complaint, Yoselovsky also accuses Ahluwalia of speaking to Human Resources sometime prior to the November 12 meeting " in an attempt to circumvent" his accommodations. (Pl.'s Stmt. ¶ 3; ECF No. 1 (" Complaint" or " Compl." ) ¶ 23). How Ahulwalia attempted this, or how Yoselovsky learned of it, Yoselovsky does not say.

Beginning in late November, Yoselovsky began reporting directly to Roseann Treloar (" Treloar" ), the Technical Program Manager for Legacy Satellite Replacement. (Def.'s Stmt. ¶ 6; see Ex. H). Treloar was based in the AP's San Francisco bureau, but traveled periodically to the New York office. (Def.'s Stmt. ¶ 6). Treloar did not alter the Sabbath accommodations that Yoselovsky and Ahluwalia had agreed to during the November 12 conference. ( Id. ¶ 37).

It is the AP's policy to give new employees— especially those in relatively highly compensated managerial positions, such as Yoselovsky— an initial period to become " acquainted" with the requirements of their positions. ( Id. ¶ 38).[4] During this period, the technology managers and directors in Yoselovsky's business area worked with him and provided opportunities for him to familiarize himself with the operational and communications requirements of the job. ( Id. ¶ 39). Nevertheless, over time, the AP's Technology Management concluded that Yoselovsky's performance was not meeting expectations, and that he was inattentive to deadlines and had skills that were " not a match for the requirements of his position at the AP." ( Id. ¶ 40).

Yoselovsky does not appear to dispute that his performance fell below the AP's expectations, but instead, attributes his poor performance to the fact that, " after his observance of the Jewish holidays in October 2008, the AP took two of his employees from him and required that he perform their work in addition to his." (Pl.'s Opp. Stmt. ¶ 40). The " two employees," however, were on fixed assignments that had expired. (Def.'s Stmt. ¶ 91). One employee was an independent contractor; the other was an AP employee ordinarily assigned to the AP's Atlanta office, who was at the New York office only on a fixed, temporary basis. ( Id. ¶ 92). In addition, although both men " worked directly" for Yoselovsky, (Pl.'s Opp. Stmt. ¶ 90), neither was assigned solely to him. (Def.'s Stmt. ¶ 90). At any rate, in December 2008, the

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AP actually increased the number of CIT team members assigned to Yoselovsky from three to four. ( Id. ¶ 93; Pl.'s Opp. Stmt. ¶ 1).

On December 16, 2008, Treloar sent Yoselovsky an email stating that, after reading his monthly report several times, she " had a hard time following it." (Ex. B; Def.'s Stmt. ¶ 51). She offered specific suggestions as to how he could improve, and attached a version of the report with her questions and comments. ( Id. ). She ended the email by stating: " I would be happy to discuss this further with you via phone. Just let me know." ( Id. ). Yoselovsky did not accept Treloar's offer to discuss the report, (Def.'s Stmt. ¶ 52), because he believed that he understood Treloar's comments and did not need further assistance, and because he thought that the meetings he had with Treloar after the December 16 email were sufficient to address the issue. (Pl.'s Opp. Stmt. ¶ 52).

Throughout early 2009, Treloar and Ahluwalia discussed Yoselovsky's performance, concluding that it was " sub-par." (Aff. of Roseann Treloar, sworn to on Sept. 6, 2012 (" Treloar Aff." ), ¶ 12). On January 5, 2009, Treloar sent another email to Yoselovsky, stating that his report was " better," but that she " still had to read through a lot of information to get to the end results." (Ex. C; Def.'s Stmt. ¶ 53). She directed Yoselovsky to include a one-page " executive summary" in future reports. (Ex. C).

On January 29, 2009, Treloar met with Yoselovsky to discuss his work performance. (Def.'s Stmt. ¶ 55). During the meeting, Treloar noted that Yoselovsky was not devoting sufficient time and attention to his work, was not reporting to work by 7:30 a.m. on alternate Fridays, was untimely and/or unresponsive with respect to his communications and reports, and resisted the direction and suggestions of higher management. (Def.'s Stmt. ¶ 55). Treloar provided Yoselovsky with specific performance guidelines and standards, stating that she was there to " support" him, that he should " let [her] know" if he was " unclear on any of these issues or tasks," and that she would " continue to meet [with him] on a regular basis to review performance progress." ( Id. ¶ 56-58). At the conclusion of the meeting, Treloar warned Yoselovsky that his failure to improve his performance and to meet the standards they had discussed would subject him to termination. ( Id. ¶ 59).

Yoselovsky does not dispute these aspects of the January 29 meeting. He merely contends that Treloar also told him during the meeting that " absence from work for religious holidays was not authorized," despite his previously-approved holiday work schedule. (Yoselovsky Aff. ¶ 13). Yoselovsky also contends that this was Treloar's primary reason for meeting with him. [5] (Pl.'s Opp. Stmt. ¶ 57).

On February 3, 2009, Treloar sent an email to Yoselovsky, in which she summarized some of the " serious concerns" that she had discussed with him during the January 29 meeting. (Ex. D; Def.'s Stmt. ¶ 60). Treloar stated that there was a perception that Yoselovsky was " not devoting the time and effort expected of someone in a managerial position at the AP," and that " the manner in which [Yoselovsky] conducted [himself] during [the January 29] meeting and other meetings in the past ... bordered on insubordination." (Ex. D at 1). Treloar went on to say that Yoselovsky's " [f]requent interruptions, denials, excuses, and insubordinate tones [would] not be tolerated going forward." ( Id. ). Among the areas of concern that

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her email identified were Yoselovsky's office attendance and frequent absences during critical times; his failure to respond to emails in a timely manner or at all; his contradictory replies to inquiries made by his managers; his failure to submit reports on time or to answer Treloar's requests for information; his inappropriate use of the online office calendar for " [p]ersonal entries" or " self reminders," which left " little free time for business appointments; " his improper use of " standby mode" on the instant messaging system, which gave the impression that he was available when he was not; his inaccurate reporting on time sheets; and the time he spent making excuses, rather than addressing the issues and attempting to solve them. ( Id. ). The email further stated that from that point forward, Yoselovsky would be expected to respond professionally to all of his managers' inquiries regarding his work performance; meet all due dates for reports and notify his manager at least 36 hours in advance if he experienced any issues meeting a deadline; respond professionally to all emails within an appropriate time period; change all personal entries and self reminders on his calendar to appear as " Free; " set his instant messenger status to " Appear Offline" prior to putting his computer in standby mode; and accurately record time off on his time sheets and correct any previous errors. ( Id. ). In addition, the email indicated that Yoselovsky would have to begin handling some additional tasks, such as maintaining and updating the " SharePoint" site, and producing a weekly CIT report. ( Id. ). Treloar closed the email with these observations:

Martin, these issues are seriously affecting your ability to be an effective Customer Integration Manager. If you are unclear on any of these issues or tasks, please let me know. If your performance does not improve immediately, or if other performance issues surface, you may be subject to additional disciplinary action up to and including termination.
Martin, you are currently involved in a very high-profile project with great potential and I am here to support you and help you succeed. We will meet this week to further discuss the tasks and set timelines and will continue to meet on a regular basis to review performance progress.

( Id. at 2). The email made no mention of any discussion that Yoselovsky's time off for religious holidays had been " unauthorized."

Yoselovsky alleges that, following the January 29 meeting, Treloar attempted to " impair his ability to perform his job," by no longer allowing him to delegate work to his consultant, adding job responsibilities that had previously been handled by two employees who reported to him, giving him " numerous assignments over an unreasonably short period of time," " [c]onstantly changing" her format requirements for his weekly reports, and instructing him to cancel meetings to work on a high-priority project, yet later criticizing him for canceling those meetings. (Pl.'s Stmt. ¶ 8).

In addition to Treloar's comments and suggestions, Yoselovsky also received written feedback from Ahluwalia following their meeting on November 12, 2008. (Def.'s Stmt. ¶ 61; Pl.'s Opp. Stmt. ¶ 61). In an email dated February 17, 2009, Ahluwalia provided specific suggestions as to how Yoselovsky could improve his weekly CIT reports, including making changes to the formatting and font. (Def.'s Stmt. ¶ 63; Ex. I). Ahluwalia commented further that Yoselovsky needed to put more thought into his reports before ...

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