United States District Court, E.D. New York
MEMORANDUM DECISION AND ORDER
M. COGAN U.S.D.J.
an employee of the HASC Center, Inc. (“HASC”), a
service provider for the disabled, alleges that he was
discriminated against based on race, religion, sex/gender,
and was subject to sexual harassment, a hostile work
environment, retaliation, and wrongful termination. He brings
his claims under Title VII, 42 U.S.C. § 1981, the New
York State Human Rights Law, N.Y. Exec. Law § 296 et
seq. (“NYSHRL”), and the New York City Human
Rights Law, N.Y.C. Admin. Code § 8-107 et seq.
(“NYCHRL”). Defendants (HASC and supervisors and
employees of HASC) have moved to dismiss all of the claims.
For the reasons discussed below, defendants' motion to
dismiss is granted and denied in part.
Religious Discrimination Claims
November 2010, plaintiff began his employment with HASC as a
Direct Care Counselor for people with special needs. At the
time, he practiced Orthodox Judaism and wore corresponding
religious attire. Roughly five months later, plaintiff
stopped practicing Orthodox Judaism and began practicing what
he describes as “Traditional
Judaism.” He accordingly stopped wearing Orthodox
this time, a day shift at HASC opened, and plaintiff asked
defendants if he could switch to that from his overnight
position. Plaintiff describes the day shift as more
desirable, and longer, carrying with it a corresponding
increase in pay. Defendants refused, telling plaintiff that
they would only consider him for the day position if he
returned to wearing religious attire. For the next two months
plaintiff did so, in order to be able to apply for the day
in May 2011 and continuing through September 2012, plaintiff
asked defendants monthly about receiving medical benefits,
and they denied each request. Plaintiff claims that HASC gave
numerous Orthodox Jewish employees such benefits, and that he
knows this because the employees “bragged about having
medical benefits.” During this time, on several
occasions, plaintiff complained to his supervisor, Yanky
Hertz, about the disparity in treatment between himself and
Orthodox Jews. Hertz allegedly acknowledged the disparity,
and told plaintiff that he would speak with management about
securing benefits for him.
than one year later, in September 2012, Samuel Kahn, the
Director of HASC, visited a home where plaintiff was working
and noticed that he was not wearing traditional Orthodox
attire. Kahn allegedly gave plaintiff a dirty look, said
“filth, ” and then remarked, “we'll see
how long you last.” Around that time, Abie Hamui (an
HASC employee, the day shift Senior Counselor, and another of
plaintiff's supervisors) told plaintiff that he needed to
go to synagogue with HASC residents and wear a yarmulke as
well as phylacteries,  both accoutrements used in Orthodox
practice. Immediately after that conversation, defendants
stopped offering plaintiff weekend and Sabbath shifts, which
effectively cut his weekly hours from between 60-80 down to
end of 2012, plaintiff's friend Menachem Isakov (who has
filed a related suit), contacted plaintiff about open
positions at HASC. Plaintiff reached out to Malky Tropper
(female), a supervisor at HASC, who asked plaintiff what
Isakov looked like and what he was studying. Plaintiff
described Isakov as an Orthodox Jewish man with a long beard,
studying to become a rabbi. Isakov was hired to work a day
shift and quickly promoted to the position of Senior
Counselor, for which plaintiff had unsuccessfully applied.
Around the same time, HASC hired new staff for morning and
afternoon shifts, who plaintiff described as ultra-Orthodox,
while Hertz cut plaintiff's hours down
to 20 per week.
March 2013, plaintiff asked Tropper if he could apply for
other full-time positions. Tropper told him that there were
two full-time supervisor positions available for someone with
plaintiff's education and skill level. Plaintiff applied,
but did not receive either position. Tropper told plaintiff
that the denial was “out of her hands.” The next
month, Tropper told plaintiff that Kahn had instructed HASC
management to hire ultra-Orthodox applicants.
thereafter, Isakov spoke to Mark Schwartz, his manager and an
HASC supervisor, on plaintiff's behalf. Isakov reported
to plaintiff that Schwartz had received concerned calls from
Kahn, who stated that plaintiff's haircut
“wasn't up to the religious code, ” and
expressed disapproval of plaintiff's attire.
the summer of 2013, plaintiff began working Sabbath and
weekend shifts again, but still without medical benefits.
Approximately every other month from September 2013 through
January 2015, plaintiff again requested medical benefits from
Schwartz and Yehuda Osipov (another of plaintiff's
supervisors). Schwartz apparently told plaintiff that he
would submit the required paperwork, but plaintiff never
received benefits. As he had done before, plaintiff
complained to Schwartz about the disparity in treatment
between himself and Orthodox Jews, and Schwartz acknowledged
the gap. Plaintiff alleges that these employees were of
“equal or lesser” qualification than him.
Plaintiff also claims that he was working the same number of
hours as another HASC employee, Yehoshua Griffith, who was
ultra-Orthodox, and Griffith received benefits.
February 2015, plaintiff suffered a workplace injury that
kept him out of work for two months. HASC again denied him
benefits in May, and later that month he suffered another
injury that kept him out of work until approximately August.
From September 2015 through January 2016, plaintiff requested
benefits from Schwartz and Osipov roughly every other month,
but never received them.
December 2015, HASC assigned Blima Druker (female) to be an
Area Coordinator, in which role she supervised plaintiff.
Plaintiff alleges that she gave dirty looks to any
non-Orthodox staff member, including him. In February 2016,
Schwartz met with plaintiff and told him that Kahn had
complained to Schwartz that plaintiff was not observing
Sabbath, and that Kahn said he must cut plaintiff's
hours. Plaintiff lost some of his weekend shifts, resulting
in a loss of approximately $450 per shift. Over the next four
months, plaintiff overheard Druker making disapproving
comments to others regarding his hair length, beard style,
and lack of peyot. Druker remarked to Osipov that
plaintiff's hair looked like that of a woman.
Sexual Harassment/Sex and Gender Discrimination
November 2012 through February 2013, plaintiff worked with
Vlad Tsupak, a senior counselor who was also plaintiff's
supervisor, one day each week, and interacted with him
several other days. Plaintiff alleges that on each
interaction, Tsupak made “multiple sexually harassing
comments directed at [plaintiff] as well as about
[plaintiff's] wife at the time.” Tsupak also asked
plaintiff about his sexual orientation and requested that he
bring his wife's dirty underwear to work. In explicit
terms, Tsupak repeatedly asked about plaintiff's sex
life. While this was occurring, plaintiff frequently
complained to his manager, Hertz. During more than one of
these conversations, plaintiff threatened legal action. Hertz
told plaintiff that he would speak with Tsupak. At the start
of 2013, plaintiff also complained to Hamui about Tsupak.
Hamui said that he, too, would speak with Tsupak.
in June 2015, and continuing through September of that year,
plaintiff worked more shifts with Tsupak, who continued to
make sexually explicit comments, no longer about
plaintiff's wife, but about plaintiff's girlfriend.
Plaintiff again complained to Schwartz multiple times, and
again discussed taking legal action. Schwartz said that
plaintiff was not the first person to bring this behavior to
his attention. In September 2015, plaintiff complained about
Tsupak to his supervisor, Osipov. Plaintiff told Osipov that
he could smell alcohol on Tsupak's breath. Osipov said he
would handle it.
October 2015 through March 2016, Tsupak continued to make
sexually explicit statements to plaintiff, and plaintiff
continued to complain to Schwartz. In March 2016, plaintiff
told Schwartz that if Tsupak showed up on plaintiff's
shift, plaintiff would leave the shift. Schwartz said that
was fine. Plaintiff walked off a shift later that month
because of Tsupak's statements.
2016, plaintiff overheard Druker asking Schwartz if plaintiff
was the one with the long hair, and saying “[h]e
definitely looks like he needs to go.” Schwartz then
called plaintiff into his office and fired him. Schwartz told
plaintiff that his termination was not performance based.
That day, another employee informed plaintiff that HASC had
already hired new ultra-Orthodox staff.
Supreme Court has defined the standard on a motion to dismiss
for failure to state a claim as a “two-pronged
approach.” Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009). First, a court must construe a complaint's
factual allegations as true, but need not accept the veracity
of legal conclusions. Id. at 678. A “complaint
[will not] suffice if it tenders naked assertions devoid of
further factual enhancement.” Id. (internal
quotations and alterations omitted). Likewise,
“[c]onclusory allegations or legal conclusions
masquerading as factual conclusions are inadequate . . .
.” Cox v. Nassau Cty. Corr. Ctr., No. CV
11-1937, 2013 WL 831194, at *1 (E.D.N.Y. Feb. 15, 2013),
report and recommendation adopted, No. 11-CV-1937,
2013 WL 828949 (E.D.N.Y. Mar. 6, 2013). “While facts
must be accepted as alleged, this does not automatically
extend to bald assertions, subjective characterizations, or
legal conclusions.” ECOR Sols., Inc. v. Malcolm
Pirnie, Inc., No. 1:02CV01103, 2005 WL 1843253, at *3
(N.D.N.Y. July 29, 2005).
a court must determine whether the complaint “states a
plausible claim for relief, ” which is “a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Iqbal, 556 U.S. at 679.
to defeat a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a plaintiff's complaint must
“contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its
face.'” Id. at 678 (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 547 (2007)). “A
claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Id. (citation omitted). Therefore,
the “plausibility standard . . . asks for more than a
sheer possibility that a defendant has acted
unlawfully.” Id. (citation omitted). Neither
legal conclusions nor “[t]hreadbare recitals of the
elements of a cause of action” state a claim because
“Rule 8 . . . does not unlock the doors of discovery
for a plaintiff armed with nothing more than
conclusions.” Id. at 678-79 (citation
Claims under Title VII of the Civil Rights Act of
a Title VII claim to be timely, the alleged discriminatory
conduct must have occurred less than 300 days prior to the
filing of the [Equal Employment Opportunity Commission
(“EEOC”)] charge.” Taylor v. City of
New York, 207 F.Supp.3d 293, 300 (S.D.N.Y. 2016).
“This statutory requirement is analogous to a statute
of limitations.” Van Zant v. KLM Royal Dutch
Airlines, 80 F.3d 708, 712 (2d Cir. 1996). “As
such, it is meant to put the adversary on notice to defend
within a specified period and to promote the right to be free
of stale claims.” McPherson v. New York City
Dep't of Educ., 457 F.3d 211, 214 (2d Cir. 2006)
(internal quotations omitted). Plaintiff submitted a Charge
of Discrimination to the EEOC on November 18, 2016, and
received his Right to Sue Letter on April 19,
2017. Therefore, plaintiff may only bring claims
under Title VII arising out of discriminatory conduct that
took place after January 23, 2016 (300 days before he filed
his EEOC complaint). See Szuszkiewicz v. JPMorgan Chase
Bank, 12 F.Supp.3d 330, 338 (E.D.N.Y. 2014).
Title VII's continuing violation doctrine, if a plaintiff
has experienced a continuous practice and policy of
discrimination, the commencement of the statute of
limitations period may be delayed until the last
discriminatory act in furtherance of it.”
Washington v. Cty. of Rockland, 373 F.3d 310, 317
(2d Cir. 2004) (internal quotations omitted). In National
Railroad Passenger Corporation v. Morgan, 536 U.S. 101
(2002), “the Supreme Court made clear that the word
‘practice' in this context refers to a discrete act
or single occurrence, and that a discrete retaliatory or
discriminatory act occurred on the day that it
happened.” Vega v. Hempstead Union Free Sch.
Dist., 801 F.3d 72, 78-79 (2d Cir. 2015) (internal
quotations omitted). Therefore, “discrete
discriminatory acts are not actionable if time barred, even
when they are related to acts alleged in timely filed
charges.” Id.(internal quotations omitted).
“With respect to claims based on termination, failure
to promote, denial of transfer, or refusal to hire, [Title
VII] precludes recovery for discrete acts of
discrimination or retaliation that occur outside the
statutory time period, even if other acts of discrimination
occurred within the statutory time period.”
McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 75
(2d Cir. 2010) (internal citations and quotations omitted).
bears the burden of establishing the applicability of the
continuing violations doctrine. See Norman v. Metro.
Transit Auth., No. 13-CV-1183, 2014 WL 4628823, at *5
(E.D.N.Y. Aug. 1, 2014), report and recommendation
adopted sub nom. Norman v. Metro. Transp. Auth., No.
13-CV-1183, 2014 WL 4628848 (E.D.N.Y. Sept. 15, 2014).
plaintiff merely makes a conclusory assertion that the
continuing violation doctrine applies to his discrimination
claims. That is insufficient. Plaintiff's allegations of
adverse employment actions in violation of Title VII prior to
January 23, 2016 are time barred. Accordingly,
plaintiff's Title VII discrimination claims are limited
to his allegations of 1) being denied ...