07-0642-cv
Leifer v. New York State Division of Parole


                           UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. WHEN CITING A
SUMM ARY ORDER IN A DOCUMENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY
ORDER”). A PARTY CITING A SUMM ARY ORDER M UST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 23rd day of August, two thousand ten.

PRESENT:
            PETER W. HALL,
            CHESTER J. STRAUB,
                   Circuit Judges,
            RICHARD K. EATON
                         Judge.*
__________________________________________

George Leifer,

                                              Plaintiff-Appellant,

                  v.                                                     07-0642-cv

New York State Division of Parole and James Dress,
in his official and individual capacity,

                                    Defendants-Appellees.
__________________________________________

FOR APPELLANT:                                       NATHAN LEWIN , Lewin & Lewin, LLP;
                                                     Washington, D.C.



         *
          The Honorable Richard K. Eaton, Judge, United States Court of International Trade,
sitting by designation.
FOR APPELLEES:                                LAURA R. JOHNSON , Assistant Solicitor General for
                                              ANDREW M. CUOMO , Attorney General of the State
                                              of New York; New York, New York.

       Appeal from a judgment of the United States District Court for the Eastern District of

New York (Sifton, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED in part,

VACATED in part, and REMANDED for further proceedings.

       Plaintiff-appellant George Leifer appeals from a grant of summary judgment in favor of

the New York State Division of Parole and James Dress, in his official and individual capacity,

(“defendants”) on his claims of religious-based discrimination and retaliation. See Leifer v. N.Y.

State Div. of Parole, No. cv-04-571, 2007 WL 203961 (E.D.N.Y. Jan. 24, 2007). Specifically,

Leifer challenges, inter alia, that part of the judgment that dismissed his claims under Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. (“Title VII”), based on the

district court’s determination that he failed to present evidence that would permit a rational trier

of fact to conclude that (1) defendants failed to provide him with reasonable accommodations for

his religious practices, which resulted in an adverse employment action, (2) defendants retaliated

against him for engaging in a protected activity, or (3) defendants subjected him to a hostile

work environment based on his religion.1

       We review an award granting summary judgment de novo, “construing the facts in the

light most favorable to the non-moving party and resolving all ambiguities and drawing all



       1
        In the district court Leifer also alleged discrimination under a disparate treatment theory.
He has failed to advance this argument on appeal, however, and we thus deem it waived. See
Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (stating that issues not sufficiently
argued in briefs are considered waived).

                                                  2
reasonable inferences against the movant.” Redd v. Wright, 597 F.3d 532, 535 (2d Cir. 2010)

(internal quotation marks omitted). A summary judgment motion will not stand “where the

evidence is such that a reasonable jury could decide in the non-movant’s favor.” United Transp.

Union v. Nat’l R.R. Passenger Corp., 588 F.3d 805, 809 (2d Cir. 2009) (internal quotation marks

omitted). In applying this standard, we assume the parties’ familiarity with the underlying facts

and the procedural history, which we reference only as necessary to explain our decision.



1. Reasonable Accommodations

       Upon de novo review, we agree with the district court that Leifer’s claim of

discrimination based upon defendants’ failure to accommodate his religious practices fails

because there is insufficient evidence showing that Leifer suffered an adverse employment

action. See Baker v. Home Depot, 445 F.3d 541, 546 (2d Cir. 2006) (stating that plaintiffs who

allege discrimination for failure to accommodate must show, inter alia, that they suffered an

adverse employment action for failure to comply with the employment requirement that

conflicted with their religious belief); Joseph v. Leavitt, 465 F.3d 87, 90 (2d Cir. 2006) (stating

that an adverse employment action is one that materially changes the terms and conditions of

employment).

       Leifer asserts that in scheduling the mandatory September 19, 2001 meeting on Rosh

Hashanah and the mandatory June 6, 2003 training session on Shavuot, defendants forced him to

choose between his work and his religious beliefs. Leifer further argues that as a result of his

absence from the September 19, 2001 meeting, and his refusal thereafter to work on Jewish

holidays, his supervisors “significantly diminished” his authority over the parole officers who


                                                  3
were under his supervision and denied him training necessary to perform his job. See Feingold

v. New York, 366 F.3d 138, 152 (2d Cir. 2004) (“Examples of materially adverse employment

actions include . . . significantly diminished material responsibilities, or other indices . . . unique

to a particular situation.”) (internal quotation marks omitted). Leifer presented no evidence,

however, to demonstrate that his absence from either of the two meetings resulted in a

“materially adverse change in the terms and conditions of [his] employment.” Joseph, 465 F.3d

at 91. Nor does the record contain any evidence that, by his missing the September 19 meeting,

Leifer’s terms and conditions of employment changed in any material manner. There is also no

evidence that Leifer’s failure to receive training on the new drug testing machine in 2003, which

he missed because he observed the holiday of Shavuot, significantly altered his supervisory

duties. See Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (finding that an adverse change

must be “more disruptive than a mere inconvenience or an alteration of job responsibilities ”

(internal quotation marks omitted)). Moreover, defendants granted Leifer permission to miss the

“mandatory” meetings on account of the Jewish holidays, thereby satisfying the requirement that

they provide reasonable accommodations for religious observances. See Cosme v. Henderson,

287 F.3d 152, 158 (2d Cir. 2002) (“[T]o avoid Title VII liability, the employer need not offer the

accommodation the employee prefers. Instead, when any reasonable accommodation is

provided, the statutory inquiry ends.”).

        Because the record presents no evidence from which a jury could reasonably conclude

that defendants failed to provide reasonable accommodations for religious practices, the district

court’s order granting summary judgment in favor of defendants with respect to this claim is

affirmed.


                                                   4
2. Retaliation

       To establish a prima facie case of retaliation, Leifer must show: (1) participation in a

protected activity known to defendants; (2) an employment action that disadvantaged him; and

(3) a causal connection between the protected activity and the adverse employment action.

Richardson v. Comm’n on Human Rights & Opportunities, 532 F.3d 114, 123 (2d Cir. 2008).

Once Leifer establishes prima facie retaliation, the burden shifts to the defendants to proffer a

“legitimate, nonretaliatory reason for the challenged employment decision,” whereupon the

burden shifts back to Leifer to demonstrate that defendants’ rationale is “merely a pretext for

[the] impermissible retaliation.” Cifra v. G.E. Co., 252 F.3d 205, 216 (2d Cir. 2001).

       Upon de novo review, we agree with the district court that the evidence Leifer provided

was insufficient as a matter of law to demonstrate that he suffered an adverse employment action

after he complained about the scheduling of the September 19, 2001 meeting on Rosh Hashanah.

Additionally, defendants offered legitimate, nonretaliatory reasons to support each of their

actions of which Leifer complained, and Leifer’s evidence does not demonstrate that there is a

genuine question of fact as to whether the explanations proffered by defendants were pretextual.

See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) (stating that “an

employer would be entitled to judgment as a matter of law if the record conclusively revealed

some other, nondiscriminatory reason for the employer’s decision”); Scaria v. Rubin, 117 F.3d

652, 655 (2d Cir. 1997) (affirming summary judgment in favor of defendant where “there is

nothing in the facts from which a reasonable finder of fact could imply pretext masking unlawful

discrimination”).




                                                 5
       Leifer asserts that the district court erred by failing to take into account the Supreme

Court’s decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006),

which held that in a retaliation action, the plaintiff must show that “a reasonable employee would

have found the challenged action materially adverse,” i.e., “it well might have dissuaded a

reasonable worker from making or supporting a charge of discrimination.” 548 U.S. at 68

(internal quotation marks omitted). Specifically, Leifer argues that being reprimanded by

defendant Dress for having sent the memorandum notifying Dress of the scheduling conflict with

the September 19 meeting constituted a “materially adverse” action that would deter a

“reasonable employee” from making a similar complaint. Id.; see Zelnik v. Fashion Inst. of

Tech., 464 F.3d 217, 226 (2d Cir. 2006) (stating that a reprimand may constitute an adverse

employment action). While it is true that the district court should have considered Burlington

Northern’s application to Leifer’s retaliation claim, we do so now and reach the same ultimate

conclusion as did the district court. Defendants maintain, and we agree, that Dress’s verbal

reprimand was prompted by the confrontational manner in which Leifer chose to voice his

objection to the meeting scheduled for Rosh Hashanah; Dress’s reprimand was not in response to

the objection itself. Furthermore, the reprimand did not result in a “materially adverse”

employment action that would “dissuade[] a reasonable worker from making . . . a charge of

discrimination.” Burlington Northern, 548 U.S. at 68; see Hicks v. Baines, 593 F.3d 159, 165

(2d Cir. 2010) (“Petty slights or minor annoyances . . . do not constitute actionable retaliation.”

(internal quotation marks and citations omitted)). Leifer argues that the counseling

memorandum he was issued constituted a materially adverse employment action. That

memorandum, however, was not issued until nearly four months after Leifer complained about


                                                  6
the September 19 meeting, and, because it was subsequently withdrawn, it cannot be deemed an

adverse employment action. We thus affirm the district court’s order granting summary

judgment in favor of defendants with respect to Leifer’s retaliation claim.



3. Hostile Work Environment

       In order to survive a summary judgment motion with respect to a claim of a hostile work

environment, Leifer must provide sufficient evidence to create a genuine question of fact as to

whether “[his] workplace is permeated with discriminatory intimidation, ridicule, and insult, that

is sufficiently severe or pervasive to alter the conditions of [his] employment.” Harris v. Forklift

Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks and citation omitted). The hostility

or harassment must be on account of his religion, and his employer must be responsible for the

discriminatory conduct. See Gregory v. Daly, 243 F.3d 687, 692 & n.3 (2d Cir. 2001). While

there is no bright-line test as to the type of conduct that is required to give rise to a hostile work

environment claim against an employer, we consider the following factors, which are not

exclusive: “the frequency of the discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes

with an employee’s work performance.” Harris, 510 U.S. at 22-23.

       Examining the evidence in the light most favorable to Leifer, we disagree with the

district court’s determination that the evidence Leifer presents concerning interactions with his

supervisors do not express “hatred, contempt, or hostility,” so as to create a hostile work

environment. Leifer, 2007 WL 203961, at *8. When viewed individually each of the

discriminatory actions for which Leifer provides evidence may not allow a reasonable trier of


                                                   7
fact to conclude based on that act alone that Leifer was subjected to a hostile work environment.

When viewed in toto, however, drawing all reasonable inferences in Leifer’s favor, there is a

genuine issue of fact whether the acts in question had an adverse effect on, or altered the

conditions of, Leifer’s employment. See Patterson v. County of Oneida, N.Y., 375 F.3d 206, 227

(2d Cir. 2004) (“The matter of whether the conduct alleged was so severe or pervasive as to

create an objectively hostile or abusive work environment is to be decided based on the totality

of the circumstances.” (internal quotation marks omitted)).2

       Defendants assert that the incidents in question were neither explicitly anti-Jewish, nor

did they give rise to a workplace “permeated with ‘discriminatory intimidation, ridicule and

insult’ that [was] ‘sufficiently severe or pervasive to alter the conditions of [Leifer’s]

employment.’” Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (quoting Harris,

510 U.S. at 21). While Leifer’s workplace may not have been permeated with discriminatory

insults, the true test to determine whether an employee has been subjected to a hostile work

environment is “whether the harassment is of such a quality or quantity that a reasonable

employee would find the conditions of [his] employment altered for the worse.” Feingold, 366

F.3d at 150 (internal quotation marks omitted) (emphasis in the original). Leifer presents

evidence of six interactions with his supervisors over a three-year period which implicate his

religion. Viewing Leifer’s evidence in the light most favorable to him, a reasonable jury could


       2
        In this analysis we consider the following evidence: (1) Dress’s statement that Jewish
laws and customs were not binding on him and that he would not reschedule meetings because of
Jewish holidays; (2) Dress’s statement that “you are not like the rest of us . . . . You are like
Saddam Hussein”; (3) the failure to apprehend the individual responsible for defacing Leifer’s
wedding photo; (4) Oeser’s refusal to grant Leifer an extended lunch hour during Passover; (5)
Hoy’s directive that Leifer remove pictures from his wall displaying political figures near
Menorahs; and (6) Hoy’s statement about filing false complaints of anti-Semitism.

                                                  8
find the interactions to be sufficiently hostile to have altered his employment conditions for the

worse.

         To support their argument to the contrary, defendants cite two cases in which this Court

affirmed a district court’s award of summary judgment on the grounds that the harassment was

not frequent or severe enough to constitute sufficient proof of a hostile work environment. See

Alfano v. Costello, 294 F.3d 365, 380 (2d Cir. 2002) (holding that five alleged incidents in four

years were “too few, too separate in time, and too mild . . . to create an abusive working

environment”); Shabat v. Blue Cross Blue Shield of Rochester Area, 925 F. Supp. 977, 982

(W.D.N.Y. 1996), aff’d sub nom. Shabat v. Billotti, 108 F.3d 1370 (2d Cir. 1997) (affirming

summary judgment in favor of defendants despite the fact that plaintiff alleged nine anti-Semitic

or anti-Israeli incidents over a three-and-a-half-year period). While the facts of these cases may

be of some guidance, the frequency and severity of harassment demonstrated in prior cases does

not mandate a specific level of harassment that future plaintiffs must demonstrate to avoid

summary judgment against them. See Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 606

(2d Cir. 2006) (“Prior cases in which we have concluded that a reasonable juror could find that

the work environment was objectively hostile do not establish a baseline that subsequent

plaintiffs must reach in order to prevail.” (internal quotation marks and citation omitted)). On

the record presented in this case we conclude that Leifer has proffered sufficient evidence to

establish a genuine issue of material fact concerning his hostile work environment claim, and

that claim should be presented to a jury. See, e.g., Patterson, 375 F.3d at 227 (“Where

reasonable jurors could disagree as to whether alleged incidents of . . . harassment would have

adversely altered the working conditions of a reasonable employee, the issue of whether a hostile


                                                 9
work environment existed may not properly be decided as a matter of law.”); see also Schiano,

445 F.3d at 605 (“[H]ostile work environment claims present mixed questions of law and fact

that are especially well-suited for jury determination.” (internal quotation marks omitted))

       The district court’s grant of summary judgment in favor of defendants with respect to

Leifer’s hostile work environment claim was error. We thus vacate that part of the summary

judgment dismissing Leifer’s hostile work environment claim and remand this case to the district

court for further proceedings consistent with this order.

       We have considered Leifer’s remaining arguments and find them to be without merit.

The judgment of the district court is AFFIRMED in part, VACATED in part, and REMANDED

for further proceedings.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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