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Shapiro v. City of New York

United States District Court, S.D. New York

July 1, 2015

THE CITY OF NEW YORK, ROY A. ESNARD, and JOHN and JANE DOE (said names being fictitious, the persons intended being those who aided and abetted the unlawful conduct of the named Defendants), Defendants.

Samuel O. Maduegbuna, MADUEGBUNA COOPER, LLP, 30 Wall Street, 8th Floor New York, NY 10005 for plaintiff Jeffrey Shapiro.

Zachary W. Carter Corporation Counsel for the City of New York, 100 Church St., Room 2-143 New York, NY 10007 For defendants City of New York et al.


DENISE COTE, District Judge.

Plaintiff Jeffrey Shapiro ("Shapiro") sues defendants the City of New York (the "City"), former supervisor Roy Esnard ("Esnard"), and others, alleging that he was demoted and refused promotion because of his race, religion, and age. He sues under federal law - 42 U.S.C. §§ 1981 & 1983 - for race and religious discrimination. He sues as well under state law, namely the New York Human Rights Law, as codified at N.Y. Executive Law § 296 et seq. ("NYSHRL") and the New York City Human Rights Law, as codified in the Administrative Code of the City of New York § 8-107 et seq. ("NYCHRL"), for race, religious, and age discrimination.[1] The defendants have moved for summary judgment on all claims. For the following reasons, the motion is granted.


Plaintiff Shapiro identifies himself as Orthodox Jewish. He has been employed for over 25 years as an attorney in the Office of Legal Affairs ("OLA") in the City of New York's Human Resources Administration ("HRA"). In early 2013, Shapiro was 60 years old and working as an Assistant General Counsel within the Commercial Law Division ("CLD") of that office. He brings claims for discrimination due to his race, religion, and age based upon his demotion from that managerial position on March 29, 2013, and for the failure to promote him when another attorney was appointed in June 2013 to fill the vacancy created by his demotion. Shapiro has sued the City and the General Counsel for the HRA, Roy A. Esnard ("Esnard"). Defendants have moved for summary judgment on all claims, and argue as well that Esnard is entitled to qualified immunity. The following facts are undisputed or taken in the light most favorable to the plaintiff, unless otherwise noted. Shapiro began working for the HRA in 1988 as a Staff Attorney, and in 1991 was transferred to the CLD. He was appointed to the position of Assistant General Counsel of CLD in May 2004. His duties included delegating work to and supervising staff attorneys as well as interacting with executive staff and HRA officials. Since 2006, Shapiro's immediate supervisor has been Edward LeMelle ("LeMelle"). In April 2007, Esnard was appointed to the position of General Counsel at HRA, where he oversaw the OLA, including the CLD. Esnard is also Jewish, but is not Orthodox.

In March of 2010, LeMelle informed Shapiro that his performance as Assistant General Counsel was unsatisfactory because, among other things, he failed to critically evaluate his subordinates' writing, was too lenient with attorneys in the department, and had repeatedly dozed off at meetings. Before this point, and until February 2013, LeMelle never performed a written evaluation of Shapiro's performance, nor did he document his concerns. LeMelle concedes that he should have doing so "all along."

In February of 2013, LeMelle prepared a memorandum critical of Shapiro's performance. In that memorandum, LeMelle documented a number of his concerns, including that plaintiff was "a passive manager who is not willing to take any risks or show[] any initiative, " that he was "simply not a reliable resource for the staff, " and that he failed to complete or even attempt certain projects. LeMelle sent his final memorandum to the head of OLA's Employment Law Division on February 12, 2013. Esnard was forwarded the memorandum later that day. After receiving the memorandum, Esnard demoted Shapiro.

The parties contest crucial details surrounding this memorandum. Shapiro offers testimony from LeMelle that, in January 2013, Esnard told LeMelle that Shapiro failed to complete an assignment from the previous October. Shapiro contends that he had timely completed the assignment and that the accusation was incorrect. Shapiro has also offered evidence that, after this event, Esnard asked LeMelle to prepare a memorandum about Shapiro's performance and that Esnard demoted Shapiro after receiving the memorandum. Shapiro contends that this shows that the memorandum was a "post-hoc rationalization" of Esnard's discriminatory decision to demote Shapiro; defendants, by contrast, offer evidence that the demotion proceeded on LeMelle's initiative. They also offer evidence to show that upon starting the memorandum, LeMelle discussed its contents with two other supervisors, including Esnard's First Deputy, but not Esnard himself.

LeMelle advised Shapiro of his demotion at a meeting on February 15, 2013. Shapiro requested a meeting with Esnard, and they met on February 20. Shapiro testifies that the reasons Esnard gave him for the decision differed from the reasons LeMelle gave him. Among the reasons cited by Esnard were Shapiro's failure to force senior attorneys in the CLD to keep their doors open, which was not mentioned in LeMelle's memorandum. Shapiro also claims that Esnard accused him of failing to complete the October assignment, but Esnard does not recall this. Shapiro was formally notified of his demotion on March 29, to be effective April 1.

Shapiro applied for his former position when the vacancy was posted later that month. Applicants to this position were evaluated by a three-person hiring committee; two of its members report directly to Esnard. The committee interviewed many applicants from the OLA but did not invite Shapiro for an interview. The committee arrived at a rank-ordered list of candidates that it presented to LeMelle; LeMelle reviewed the top five. LeMelle ultimately chose Joanne Mihas, a non-Jewish woman in her mid-40s. LeMelle recommended Mihas to Esnard. After reviewing the committee's file on Mihas and interviewing her himself, Esnard decided to appoint her as Shapiro's replacement.

Shapiro's primary contention is that Esnard decided to demote him and refused to re-promote him because Shapiro is an Orthodox Jew. Shapiro speculates that Esnard was motivated to do so because HRA was engaged in litigation with Jewish groups and had suffered adverse court rulings in two related cases litigated in 2011 and late 2012. See U.S. ex rel. Feldman v. City of New York, 808 F.Supp.2d 641 (S.D.N.Y. 2011); Strouchler v. Shah, 891 F.Supp.2d 504 (S.D.N.Y. 2012). It is undisputed that Shapiro had no role in any of this litigation. Shapiro has pointed to no conversation or other evidence suggesting that either Esnard or anyone else had any reason to connect Shapiro to the litigation.

Shapiro contends that Esnard previously made two comments to Jewish employees that are discriminatory. A Jewish attorney at OLA has testified that Esnard called attention to her Kosher diet at an OLA holiday party - the date and year are not in the record - by offering that he eat the cheese on a slice of pizza and she eat the bread. A former Jewish attorney at OLA testified that on one occasion in the 2000s Esnard asked him whether he had "made out like a bandit" at his daughter's Bat Mitzvah.

Shapiro relies as well on evidence that Esnard approved the demotion of two other Jewish employees, Ronald Whol ("Whol") and Mark Rosenbaum ("Rosenbaum"). Rosenbaum was demoted in November 2013 at the age of 54 and replaced by a 38-year-old non-Jewish employee. No specific details have been offered as to Whol's demotion. Esnard originally hired Rosenbaum, and Rosenbaum himself did not regard his demotion as discriminatory - he believes that "communication issues" and "a personality conflict" with his immediate supervisors were the reasons for his demotion. Furthermore, two other older Jewish employees - Carol Mirotznik ("Mirotznik") and Linda Bess ("Bess") - testify that they have been passed over for promotions during Esnard's tenure as General Counsel, and Mirotznik states she has observed only Jewish employees being demoted during Esnard's tenure.

Shapiro brought this action against defendants on December 5, 2013. On February 6, 2015, following the completion of discovery, defendants moved for summary judgment. The motion was fully submitted on March 30.


Summary judgment may not be granted unless all of the submissions taken together "show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "There is no genuine issue of material fact where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Fabrikant v. French, 691 F.3d 193, 205 (2d Cir. 2012) (citation omitted). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination, the court must view all facts in the light most favorable to the non-moving party. Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456 (1992); Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008).

Once the moving party has asserted facts showing that the non-movant's claims or affirmative defenses cannot be sustained, the opposing party must "set out specific facts showing a genuine issue for trial, " and cannot "rely merely on allegations or denials" contained in the pleadings. Fed.R.Civ.P. 56(e); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). "[C]onclusory statements, conjecture, and inadmissible evidence are insufficient to defeat summary judgment, " Ridinger v. Dow Jones & Co. Inc., 651 F.3d 309, 317 (2d Cir. 2011) (citation omitted), as is "mere speculation or conjecture as to the true nature of the facts." Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted). Only disputes over material facts - "facts that might affect the outcome of the suit under the governing law" - will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In cases involving claims of employment discrimination "an extra measure of caution is merited" at summary judgment because "direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions." Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006) (citation omitted). Nonetheless, "[e]ven in the discrimination context[, ] a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment." Delaney v. Bank of Am. Corp., 766 F.3d 163, 170 (2d Cir. 2014). Ultimately, the test for summary judgment "is whether the evidence can reasonably support a verdict in plaintiff's favor." James v. N.Y. Racing Ass'n, 233 F.3d 149, 157 (2d Cir. 2000).

Shapiro's § 1981 and § 1983 race and religious discrimination claims are subject to the McDonnell Douglas burden-shifting standard. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014) (citation omitted). Under this analysis, "plaintiff bears the initial burden of establishing a prima facie case of discrimination." Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008). As the Second Circuit recently explained,

To state a prima facie case of race discrimination, a plaintiff must proffer evidence that (1) he belongs to a protected group; (2) he was qualified for his position; (3) his employer took an adverse action against him; and (4) the adverse action occurred in circumstances giving rise to an inference of race discrimination.

Kirkland, 760 F.3d at 225 (citation omitted). The evidence required to satisfy this initial burden is de minimis. Zimmermann v. Assocs. First Capital ...

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