Opinion
CASE NO. 00-8213-CIV-SEITZ/GARBER
October 14, 2001
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Defendant Applied Card Systems, Inc. ["ACS"] seeks summary judgment on Plaintiff Steven Lubetsky's ["Lubetsky"] complaint that ACS rescinded an offer of employment to him because of his religious faith as an Orthodox Jew, in violation of the Civil Rights Acts of 1991 and 1964, 42 U.S.C. § 1981a, 2000e et seq. ["Title VII"]. ( See Def's Mot. [D.E. No. 16].) The Court has original jurisdiction to hear this matter under 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a)(3). Whereas Lubetsky has failed to establish a prima facie case of intentional discrimination based on religion, the Court will grant ACS' motion and enter a summary judgment dismissing this case.
BACKGROUND
On May 20, 1998, Lubetsky completed an application for employment with ACS. Several weeks later, on June 9, Lubetsky met ACS recruiter Deborah Gracia ["Gracia"] in Boca Raton, Florida, and interviewed for the position of Correspondent Analyst. After Lubetsky completed the interview and passed a short writing test, Gracia offered him this position in writing at the starting salary of $22,000, provided that his credit record proved to be satisfactory. ( See Def.'s Mot., Ex. I (Steven Lubetsky Dep., Oct. 30, 2000, at 26 ["Lubetsky Dep"]).) Lubetsky then inquired about ACS' policy for accommodating the religious observances of its employees. He advised Gracia that he was Jewish and that he would need to be absent from work on several religious holidays. According to Lubetsky, Gracia replied: "Of course we have to let you off on Jewish holidays, it's illegal if we don't, but just don't go to extremes like taking off on Purim." For her part, Gracia recalled only that Lubetsky mentioned that "[t]he High Holidays were coming up, and he asked if he could have them off." (Def.'s Mot., Ex. 2 (Deborah Gracia Dep., Sept., 2001, at 10 ["Gracia Dep."]).) Gracia testified that, at that time, she did not understand that Lubetsky was an Orthodox Jew.
According to the record, Correspondent Analysts evaluate credit card applications received by ACS and issue "reasonably well-structured piece[s] of correspondence" explaining the firm's credit or lending decisions. (Pl's Opp'n, Ex. B (John Bardakjy Dep., Apr. 17, 2001, at 13 ["Bardakjy Dep"]).)
( Id. at 30.) Gracia, like Lubetsky, is Jewish. ( See Def.'s Mot. at 2.) "[T]he Jewish festival of Purim . . . celebrate[s] the triumph over persecution triggered by one Jew's unwillingness to bow to a Persian king's counselor because the Jewish people worshipped only God." New Life Baptist Church Acad. v. Town of East Longmeadow, 666 F. Supp. 293, 313-14 (D. Mass. 1987), rev'd on unrelated grounds, 885 F.2d 940 (11th Cir. 1989); see also Young v. Lane, No. 85-20019, 1989 WL 57810, at *1 (N.D. Ill. Feb. 21, 1989) (noting that traditional interpretation of Jewish law forbids work on Purim).
The "High Holidays" or High Holy Days are those associated with the Jewish New Year, i.e., Rosh Hashanah and Yom Kippur. See Young v. Lane, 1989 WL 57810, at *1 (observing that Jewish law further proscribes work on Rosh Hashanah and Yom Kippur).
Later that day, Gracia telephoned Lubetsky and informed him that ACS was rescinding its conditional offer of employment. She falsely advised him that the firm had promoted someone to fill the open position before their interview. ( See Gracia Dep. at 117-18; Def's Mot. at 5; Pl's Opp'n at 4.) According to Lubetsky, Gracia said that ACS would contact him for "the next available opening." (Lubetsky Dep. at 32.) Yet two weeks later, Lubetsky discovered that ACS was still advertising a vacant Correspondent Analyst position in the South Florida Sun-Sentinel newspaper. He testified that Gracia told him that the advertisement was a mistake. (Lubetsky Dep. at 33; see Gracia Dep. at 18 ("I said that . . . there were still no openings").) Doubting Gracia's assertion, Lubetsky filed a charge of discrimination with the Equal Employment Opportunity Commission ["EEOC"] on February 10, 1999, alleging that ACS refused to hire him because of his religion.
During the subsequent EEOC investigation, ACS admitted that Gracia had misled Lubetsky, but only "to spare [his] feelings." (Def.'s Mot. at 5.) Gracia explained that she actually withdrew the job offer at the direction of Correspondence Department Manager John Bardakjy ["Bardakjy"], who recognized Steven Lubetsky's name as that belonging to a person who had "behaved very aggressively" at a job fair on August 2, 1997. (Def.'s Mot., Ex. 3, at 1 ["Bardakjy Decl."]; see Gracia Dep. at 14-16; Bardakjy Dep. at 11.) According to Bardakjy, Lubetsky acted "rudely" at the job fair when Bardakjy told him that ACS would not interview candidates at that time who did not possess three years of call center management experience. (Bardakjy Decl. at 1.)
On December 13, 1999, the EEOC issued its Dismissal and Notice of Rights, reporting that it could not conclude that ACS discriminated against Lubetsky based on his faith. ( See D.E. No. 28, at 6.) Lubetsky then timely filed the present suit against ACS for religious discrimination.
During the course of discovery, Bardakjy reiterated that he instructed Gracia to rescind the job offer based on Lubetsky's personality and demeanor during their August, 1997, encounter: "When I met him, he was aggressive and he was insistent and he was rude, and I did not want him to disrupt the department." (Bardakjy Dep. at 17.) Lubetsky insists that this testimony is "completely false" because he was in Pittsburgh, not Boca Raton, at that time. (Lubetsky Dep. at 37.) ACS could not produce records confirming that Lubetsky attended the August, 1997, job fair. ( See Pl.'s Opp'n, Ex. C.) Lubetsky concedes, however, that "there may have been a case of mistaken identity." (Lubetsky Dep. at 37; see Def's Mot., Ex. 5.)
There is no evidence that Bardakjy knew of Lubetsky's religious affiliation when he directed Gracia to rescind the plaintiffs offer of employment. Bardakjy attested that Gracia never advised him that Lubetsky was Jewish, or that Lubetsky had inquired about taking time off from work to observe Jewish holidays. ( See Bardakjy Decl. at 2.) According to Badakjy, Lubetsky never mentioned his religious affiliation during their previous encounter. He did not recall noticing a yarmulke or anything else about Lubetsky to indicate that he was a Jew. ( See id.) At the close of discovery, ACS moved for summary judgment on Lubetsky's religious discrimination complaint.
A "yarmulke" is a skull cap worn by some Jewish males. See Hellinger v. Eckerd Corp., 67 F. Supp.2d 1359, 1360 (S.D. Fla. 1999).
DISCUSSION
1. Summary Judgment Standard
Summary judgment is appropriate when "the pleadings . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Once the moving party demonstrates the absence of a genuine issue of material fact, the non-moving party must "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting FED. R. Civ. P. 56(e)). Accepting this evidence as truthful, the Court must view the record and all factual inferences therefrom in the light most favorable to the non-moving party and decide whether "`the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting Anderson, 477 U.S. at 251-52).
2. ACS is Entitled to Summary Judgment
Summary judgment is appropriate in this case because the undisputed record forecloses any inference that ACS rescinded its offer of employment to Lubetsky because of his religious faith. At trial, the plaintiff would bear the burden of proving that ACS intentionally discriminated against him. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Conceding that he does not have direct evidence of the firm's intent, Lubetsky relies upon the familiar McDonnell Douglas framework for evaluating disparate treatment claims based on circumstantial evidence. ( See Pl.'s Opp'n at 4-5.) As explained below, however, Lubetsky cannot establish a prima facie case of intentional discrimination under this framework.
A. The McDonnell Douglas Framework
In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court distributed the evidentiary burdens between the plaintiff and defendant in a disparate treatment complaint based on circumstantial evidence as follows:
First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.Burdine, 450 U.S. at 252-53 (citing McDonnell Douglas, 411 U.S. at 802-04). The Court explained that a plaintiff could meet the prima facie burden "by showing (i) that he belongs to a racial minority [or other protected class]; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." McDonnell Douglas, 411 U.S. at 802.
B. Lubetsky's Prima Facie Burden
Of course, the foregoing elements vary in "differing factual situations." Burdine, 450 U.S. at 253 n. 5; see McDonnell Douglas, 411 U.S. at 802 n. 13. Hence, in order to establish a prima facie case of religious discrimination, Lubetsky must first produce evidence that:
(1) [he] belongs to a protected class; (2) he applied and was qualified for a job for which the employer was seeking applicants; (3) he [held) a bona fide religious belief, and he communicated this belief to defendant; (4) he was rejected despite his qualifications; and (5) after plaintiff's rejection, the position remained open, and defendant sought applicants from persons with qualifications approximating those of complainant.
Durham v. Bleckley County Sch. Sys., 680 F. Supp. 1555, 1558 (M.D. Ga. 1988); see Durham v. Lithonia Lighting, 708 F. Supp. 341, 343 (M.D. Ga. 1988) (same); see also Beadle v. Hillsborough County Sheriffs Dep't, 29 F.3d 589, 592 n. 5 (11th Cir. 1994) (To establish a prima facie case of religious discrimination under Title VII, the plaintiff must present evidence sufficient to prove that (1) he had a bona fide religious belief that conflicted with an employment requirement; (2) he informed his employer of his belief; and (3) he was discharged for failing to comply with the conflicting employment requirement.) (citing Brener v. Diagnostic Cir. Hosp., 671 F.2d 141, 144 (5th Cir. 1982)).
As part of his prima facie case, Lubetsky must demonstrate that the challenged employment decision was made by someone who was aware of his religious beliefs. As the Court of Appeals for the Ninth Circuit observed in Robinson v. Adams, 847 F.2d 1315 (9th Cir. 1987), no inference of discrimination arises from an adverse employment action unless the person who instigated that action [the "decision-maker"] knew that the plaintiff belonged to a class (i.e., race, color, religion, sex, or national origin) protected by Title VII.
Under Title VII . . . a plaintiff must prove intentional discrimination to make out a discrimination claim using a disparate treatment theory. An employer cannot intentionally discriminate against a job applicant based on race unless the employer knows the applicant's race.
The McDonnell Douglas test defines one method of proving a prima facie case of discrimination—proof from which a trier of fact can reasonably infer intentional discrimination. But the McDonnell Douglas elements would not rationally create this inference if, as here, a plaintiff offers proof that he is Black, but there is no showing by direct or indirect evidence that the decision-maker knew this fact.Id. at 1316. in Robinson, the Ninth Circuit affirmed a summary judgment and held that the plaintiff failed to establish a prima facie case of discrimination, notwithstanding the fact that the plaintiff disclosed his race to the defendants on an employment application form, because there was no evidence that the decision-maker or decision-makers knew that he was an African-American. The application form stated that the information was being collected for statistical purposes only and would not be furnished to the decision-maker(s). Id.
Numerous federal courts across the country have echoed Robinson in concluding that, in order to establish a prima facie case of discrimination, an aggrieved applicant must show that the decision-maker was aware that he or she belonged to a protected class. Lubetsky has failed to identify such evidence.
See, e.g., Gomez v. Medical Coll., Civ. No. 92-5048, 1994 WL 423847, at *11 n. 7 (E.D. Pa. Aug. 12, 1994) (entering summary judgment on plaintiffs national origin discrimination complaint and noting that "the defendant must be subjectively aware of this characteristic in order to intentionally discriminate against him"); Johnson v. Northwest Airlines, 839 F. Supp. 1253, 1259 (E.D. Mich 1993) (following Robinson and dismissing racial discrimination complaint); see also Visarraga v. Garrett, Civ. No. 88-2828, 1993 WL 209997, at 6 (N.D. Cal. 1992) (applying Robinson to plaintiffs claim as member of "impaired" protected class under Rehabilitation Act, 29 U.S.C. § 791).
C. Lubetsky Has Failed to Establish a Prima Facie Case of Religious Discrimination
ACS contends that it is entitled to summary judgment because Lubetsky cannot establish a key element of his prima facie case — there is no evidence that the challenged employment decision was made by a person who was aware of the plaintiff's religious convictions. ( See Def's Mot. at 8-10.) The Court concurs with ACS. Bardakjy testified that he instructed Gracia to rescind the job offer based on Lubetsky's personality and demeanor during their August, 1997, encounter, not his religious faith: "When I met him, he was aggressive and he was insistent and he was rude, and I did not want him to disrupt the department." (Bardakjy Dep. at 17.) The evidence is uncontroverted that Bardakjy did not know that Lubetsky was Jewish when he directed Gracia to rescind the conditional offer of employment. See supra pages 3-4; (Def.'s Mot. at 9). Consequently, no reasonable fact-finder could infer from the record that Bardakjy ordered Gracia to rescind the job offer because of Lubetsky's religious affiliation. See Robinson, 847 F.2d at 1316; Gomez, 1994 WL423847, at *11 n. 7; Johnson, 839 F. Supp. at 1259.
Lubetsky has failed to identify a material issue for trial concerning Bardakjy's knowledge of his religious affiliation. His testimony sharply conflicts with Bardakjy's sworn recollection with respect to another, completely different issue — whether they met each other at a job fair on August 2, 1997. ( See Lubetsky Dep. at 37; Bardakjy Dep. at 17.) The plaintiff strenuously argues that Bardakjy's recollection of his behavior is false because ACS could not produce records confirming that he attended the job fair, he was in Pittsburgh at the time, and Gracia misled him when she withdrew his job offer. ( See Pl.'s Qpp'n at 1, 4-6.) This line of argument is unnecessary. At this stage of the proceedings, the Court must accept Lubetsky's testimony as true and draw reasonable inferences in his favor. See Allen, 121 F.3d at 646. Accepting Lubetsky's testimony, a fact-finder could reasonably infer that Bardakjy mistakenly confused the plaintiff's name with that belonging to another applicant, and then ordered Gracia to rescind the job offer. ( See Def.'s Mot. at 12.) Indeed, the plaintiff readily acknowledged that "there may have been a case of mistaken identity." (Lubetsky Dep. at 37; see Def's Mot., Ex. 5.) However, this inference of mistaken identity casts no light on whether Bardakjy knew that Lubetsky was Jewish. Nor does it preclude summary judgment.
CONCLUSION
As a matter of law, Lubetsky cannot establish a key element of his prima facie case of religious discrimination because there is no evidence that the decision-maker knew of his religious affiliation when he directed a subordinate employee to withdraw an offer of employment. Following the weight of authority, the Court must enter summary judgment for the defendant and dismiss this case. It is hereby
ORDERED that Defendant Applied Card Systems, Inc.'s Motion for Summary Judgment [D.E. No. 16] is GRANTED. The Court will enter a separate Final Summary Judgment dismissing this case.