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Isakov v. Hasc Center, Inc.

United States District Court, E.D. New York

February 27, 2018

MENACHEM ISAKOV, Plaintiff,
v.
HASC CENTER, INC., BLIMA DRUKER, SAMUAL KAHN, MARK SCHWARTZ, Defendants.

          MEMORANDUM DECISION AND ORDER

          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 and religion, and was subject to a hostile work environment, retaliation, and wrongful termination.

         He brings his claims under Title VII of the Civil Rights Act of 1964, 42. U.S.C. §§ 2000e et seq., the Civil Rights Act of 1866, 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 managers 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.

         BACKGROUND

         In December 2012, 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 (including dress pants, button down shirts, and a yarmulke[1]) Plaintiff alleges that he excelled in his position and was promoted to Senior Counselor status in June 2013.

         At approximately eight staff meetings throughout 2013, plaintiff's manager, Mark Schwartz, told plaintiff that anyone working the Shabbat shift who was Jewish was required to observe Shabbat according to Orthodox Jewish tradition.[2] Schwartz told plaintiff that Jewish counselors had previously been fired for breaking the Shabbat. Schwartz also told plaintiff that he had to wear Orthodox attire when he worked, instruct his staff to do the same, and wear Orthodox attire when accompanying residents outside of HASC residences. This policy did not apply to non-Jewish workers. Plaintiff alleges that HASC hired African-American workers so that individuals in the community would be able to differentiate between Jewish and non-Jewish HASC employees and conclude that all Jewish HASC employees were practicing Orthodox Judaism.

         In September 2013, plaintiff stopped practicing Orthodox Judaism and began practicing what he describes as “Traditional Judaism.”[3] He accordingly stopped wearing Orthodox attire. However, plaintiff alleges that he continued to observe Shabbat while on shift, out of fear that he would otherwise lose his job.

         That month, plaintiff's supervisor observed him in jeans and a t-shirt and was apparently “shocked” at his appearance. Plaintiff claims that on several occasions, he forgot to wear his yarmulke when going to work (he did not wear it outside of work) and was fearful of going to meetings with HASC management because he knew based on previous conversations with Schwartz that it would be reported to his manager and he would be disciplined and probably terminated. In October 2013, Schwartz told plaintiff that he was forbidden to eat non-kosher food in front of the residents, and that if he were seen doing so, it would be grounds for immediate termination. Schwartz instructed plaintiff to enforce this rule with other HASC employees. Non-Jewish employees were permitted to eat non-kosher food.

         From February 2014 through December 2015, plaintiff monthly asked Schwartz for a pay raise, which plaintiff never received. Plaintiff complained that other less experienced employees were paid more than him, and at least one time asked if an employee received more pay “because he looks like a Rabbi.” Schwartz responded, “that may be.” At no time did Schwartz ever indicate that plaintiff's inability to secure a raise had anything to do with his performance. In fact, Schwartz remarked that plaintiff made “a great seniors counselor, ” was “doing well running the house, ” and acknowledged that, “it's not your performance, Menachem, you are great with the guys.”

         However, on nearly every occasion that plaintiff asked Schwartz for a raise, Schwartz told plaintiff that a pay increase turned on his appearance, and specifically on the fact that he no longer looked like an Orthodox Jew. For instance, Schwartz remarked, “maybe if you grew your beard back and looked ‘Yeshivish' something could be done, ” “maybe if you grew your beard back something would happen, wear a larger kippah [yarmulka], you know, the works, ” “like I told you, maybe grow a beard, wear dress pants, ” “you won't get it unless you look like you belong in the community, ” and “try looking Orthodox.” Some of Schwartz's responses were more general, including, “maybe if you looked the part you would get a higher pay as well, ” and “dress for the job that you want and not the job that you have.”

         On the other hand, sometimes Schwartz indicated that plaintiff's non-Orthodox practice itself was a problem, and not just how he looked: “HASC looks for specific type of individuals to work and rise in the ranks of HASC”; “you know maybe if you were ‘Yeshivish' and married with a kid on the way it would make a difference”; “a young orthodox man and part of the community, starting a new family, I am sure something could be done”; “Menachem it is up to you what you want to practice, but I am not saying it won't help, ” and “HASC is looking for ‘Yeshivish' guys.”

         Plaintiff alleges that in September 2015, Schwartz told him that Kahn had visited a residence where plaintiff was working, was displeased at his appearance, and that Schwartz said that he “wouldn't want to lose a good counselor.” Schwartz then remarked, “[y]ou know what needs to be done to get ahead.”

         In April 2016, Kahn visited a residence where plaintiff was working. Plaintiff was wearing a yarmulke, jeans, and a t-shirt. Kahn ignored plaintiff and paid attention only to a new hire who practiced Orthodox Judaism, despite the fact that plaintiff was the Senior Counselor present. The next month, Isakov again asked Schwartz for a pay raise. Schwartz told him that to get a raise, he would have to “impress the right people, ” which would entail “look[ing] the part . . . .”

         In July 2016, Druker visited a residence where plaintiff was working and saw him without a yarmulke. That day, Schwartz fired plaintiff, telling him that he was not the right fit. Schwartz told plaintiff that “we are making lots of changes around the house, ” and “we are cleaning house.” After plaintiff protested, Schwartz agreed to let him work two Shabbat shifts a month and stay on as a substitute. Roughly two weeks later, plaintiff called HASC to find out which shifts he would work. Yehuda Osipov (an HASC employee) informed him that Druker did not want non-religious Jews working for the agency, and so plaintiff was formally terminated.

         DISCUSSION

         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 February 22, 2017, and received his Right to Sue Letter on March 29, 2017. Therefore, plaintiff may only bring claims under Title VII arising out of discriminatory conduct that took place after April 28, 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. Accordingly, plaintiff's Title VII discrimination claims are limited to his allegations of allegations regarding his denial in May 2106 of a pay raise and his termination in July 2016.

         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 ...


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