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Leizerovici v. HASC Center, Inc.

United States District Court, E.D. New York

February 27, 2018



          BRIAN M. COGAN U.S.D.J.

         Plaintiff, 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.


         I. Religious Discrimination Claims

         Around 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.”[1] He accordingly stopped wearing Orthodox attire.

         Around 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 shift.

         Beginning 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.

         More 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, [2] both accoutrements used in Orthodox practice. Immediately after that conversation, defendants stopped offering plaintiff weekend and Sabbath[3] shifts, which effectively cut his weekly hours from between 60-80 down to 30.

         At the 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, [4]while Hertz cut plaintiff's hours down to 20 per week.

         In 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.

         Shortly 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.

         Over 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.

         In 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.

         In 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.[5] Druker remarked to Osipov that plaintiff's hair looked like that of a woman.

         II. Sexual Harassment/Sex and Gender Discrimination Claim

         From 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.

         Starting 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.

         From 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.

         In July 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.


         The 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).

         Second, 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.

         Accordingly, 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 omitted).

         I. Claims under Title VII of the Civil Rights Act of 1964

         A. Discrimination

         1. Timeliness

         “For 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.[6] 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).

         “Under 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).

         Plaintiff 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).

         Here, 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 ...

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