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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”). He also alleges that he was denied appropriate leave under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., and was retaliated against after he opposed this denial. Defendants (HASC and plaintiff's supervisors at 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 2014, plaintiff began his employment with HASC as a Direct Care Counselor for people with special needs. At the time, plaintiff practiced Orthodox Judaism and wore corresponding religious attire. In March 2015, plaintiff stopped practicing Orthodox Judaism and began practicing what he describes as “Traditional Judaism.”[1] He accordingly stopped wearing Orthodox attire.

         In March 2016, Yehuda Osipov, one of plaintiff's supervisors, told plaintiff on a near daily basis that his hair was too long and was not up to Orthodox code. In April and May, Osipov repeated his comments that plaintiff's hair was too long. On at least two occasions, Osipov told plaintiff that he risked getting fired if he did not cut his hair. Osipov repeatedly stated that his concerns were coming from Blima Druker, an HASC Area Coordinator, in one instance saying, “[l]isten, it's not coming from me, it's from Blima, I'm just looking out for your best interest.” In March 2016, Osipov told plaintiff to hide when Druker arrived at a house at which he was working, so that she would not see his long hair.

         II. Sexual Harassment/Sex and Gender Discrimination Claims

         Around October 2015, while working at an HASC residence (the “8th Street residence”), plaintiff was on several occasions awoken in the middle of the night to find a resident (the “Resident”), touching him and stripping in front of him. On several occasions, the Resident also asked plaintiff to watch pornographic films with him. That month, plaintiff complained to Osipov, who said that he had the same kind of problem when he worked at the residence. Osipov said he would talk to Mark Schwartz, an HASC supervisor, and “see what we will do about it.” Plaintiff claims that defendants did not take corrective action.

         In February 2016, Osipov again assigned plaintiff to the 8th Street residence. It is unclear if plaintiff worked at the residence between October 2015 and February 2016.

         Plaintiff complained about the assignment to both Osipov and Schwartz. When plaintiff asked Schwartz to “please find someone else, ” Schwartz replied, “[i]f you don't want to come in tomorrow to work at east 8th, then I'll just have to let you go.” Plaintiff complied and worked the shift, and the Resident acted in a sexually inappropriate sexual manner throughout. Plaintiff refused to enter the Resident's room. The next week, defendants removed plaintiff from all Sunday morning shifts. Plaintiff alleges that Osipov told him that Schwartz “decided that we are going to be taking [plaintiff] off Sundays because [plaintiff] didn't make the shift work.”

         Beginning in February 2016 and continuing through May, Vlad Tsupak, a senior counselor, who appears to have had supervisory authority over plaintiff, daily asked plaintiff about the sex life of his brother, Chaim Leizerovici (who has filed his own suit in this Court) with his brother's girlfriend, in explicit terms. Starting in March 2016, and also continuing through May 2016, Tsupak asked plaintiff a series of vulgar questions about plaintiff's own sex life. Many of Tsupak's questions turned, in crass terms, on the Mexican ethnicity of plaintiff's girlfriend. Plaintiff asked Tsupak to stop both lines of questions. On several occasions, Tsupak responded to plaintiff's request by saying, “I'm your senior counselor, so I can say whatever I want.” Beginning in February 2016, and continuing through May 2016, Tsupak also mocked plaintiff for his long hair, stating, for example, that he was a “woman [who] belongs in the kitchen.” In April 2016, plaintiff complained to Schwartz about Tsupak. Schwartz said that plaintiff was not the first person to complain, and said that he would take care of it.

         III. Family and Medical Leave Act Claims

         In May 2016, plaintiff took a medical leave to recover from an injury. In July 2016, after he recovered, plaintiff called Schwartz and requested his prior shifts. Schwartz informed plaintiff that his shifts were unavailable because defendants had found a replacement. Schwartz offered plaintiff only Sunday shifts, which effected a substantial reduction in his hours, resulting in a $225 pay cut per week. Plaintiff alleges that he worked the requisite number of hours within the preceding 12 months prior to the request to qualify for FMLA coverage, that he followed proper procedures, that he was an eligible employee, and that defendants were covered employers.

         IV. Termination

         In August 2016, Schwartz called plaintiff and told him he was fired. When plaintiff asked for a reason, Schwartz repeatedly said, “[w]e are trying to make new changes around the residence.”


         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

         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 January 26, 2017, and received his Right to Sue Letter on April 25, 2017. Therefore, plaintiff may only bring claims under Title VII arising out of discriminatory conduct that took place after April 1, 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).

         2. Sufficiency

         “[A]n employment discrimination plaintiff need not plead a prima facie case of discrimination, [but] dismissal is nevertheless appropriate where the plaintiff failed to allege even the basic elements of a discriminatory action claim.” Jones v. City of New York, No. 14-CV-0826, 2015 WL 502227, at *4 (E.D.N.Y. Feb. 5, 2015) (internal citations omitted). Those basic elements are first, that the “mistreatment at work occur[ed] because of . . . [a] protected characteristic, ” and second, that “the action that is alleged . . . must rise to the level of an adverse employment action.” Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007). “[A]n action must cause a materially adverse change in the terms and conditions of employment, and not just “mere inconvenience, in order to qualify as ‘adverse.'” Id. Examples of materially adverse changes include “termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation.” Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (internal quotations omitted). A plaintiff may plead such allegations “either (1) directly, by alleging facts that show an intent to discriminate, or (2) indirectly, by alleging circumstances that give rise to a plausible inference of discrimination. Guy v. MTA New York City Transit, No. 15-CV-2017, 2016 WL 8711080, at *6 (E.D.N.Y. Sept. 23, 2016) (internal citations omitted).

         “It is axiomatic that mistreatment at work . . . is actionable under Title VII only when it occurs because of an employee's . . . protected characteristic.” Patane, 508 F.3d at 112 (internal quotations omitted).

         Plaintiff plausibly alleges religious discrimination in violation of Title VII.[2] He claims that just months before he was terminated, Osipov expressly told him that his hair was not up to Orthodox code, that he should cut it, and that if he did not, he could be fired. Taken together, these comments suggest that plaintiff's non-compliance with defendants' religious practices were a substantial factor in their determination to fire him. When he was actually fired (after not cutting his hair), Schwartz could only explain his termination by saying “[w]e are trying to make new changes around the residence.” Defendants did not offer a performance-based justification.

         Plaintiff, in sum, describes that defendants - a healthcare agency that seems to primarily serve the Orthodox community, and its managers who apparently practice Orthodox Judaism - imposed the requirements of their religious practice upon him, and fired him when he resisted (as was his right). At the pleading stage, plaintiff does not need to claim any more than he has; he has alleged facts sufficient to “nudge” his claim of religious-based discrimination “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.

         B. Hostile Work Environment

         1. Timeliness

         As noted above, discrimination claims based on “discrete acts” that fall beyond the statutory time period are precluded under Title VII. Se ...

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