Kaplan v. New York State Department of Labor

Background

Fredy Kaplan, an attorney employed by the New York State Department of Labor (DOL), identified himself as a Jewish man. He worked with several junior attorneys, including J.R. Pichardo II. Female co-workers reported that Pichardo had treated them abusively and had used the word “bitch.” Kaplan later reported that Pichardo had made anti-Semitic comments about him, including a comment about “Jewing” someone down during settlement negotiations and other comments that Kaplan learned about from others. The precise comments and what Kaplan had personally heard were disputed.

DOL’s Division of Equal Opportunity Development investigated Pichardo’s conduct. The investigation found insufficient evidence to confirm discrimination under state or federal law but found a violation of DOL policy. An internal memorandum stated that it was probable that Pichardo had referred to Kaplan with anti-Semitic and other derogatory language and confirmed that Pichardo had used derogatory language toward female co-workers. DOL decided to terminate Pichardo, and he resigned instead.

Later, Kathleen Dix told DOL supervisors that Kaplan had admitted making up his allegations against Pichardo. Kaplan denied that the conversation occurred. DOL hired John W. Dormin to investigate. Dormin concluded that Kaplan had invented allegations that Pichardo made anti-Semitic remarks and recommended terminating Kaplan. DOL fired Kaplan in October 2017.

Claims and procedural history

Kaplan filed this action against DOL and individual defendants. Earlier motion practice ended the claims against the individual defendants and allowed two Title VII claims against DOL to proceed: a hostile-work-environment claim and a retaliation claim. Title VII is the federal law that prohibits employment discrimination based on characteristics including religion, race, and sex.

DOL moved for summary judgment under Federal Rule of Civil Procedure 56. Summary judgment is a decision without a trial when the evidence shows no genuine dispute about a fact that could affect the result. Kaplan also asked to reopen discovery based on newly acquired information. The court declined to reopen discovery and denied that request without prejudice to renewing it in connection with scheduling a trial date.

Hostile-work-environment claim

The court granted summary judgment for DOL on this claim and dismissed it. A hostile-work-environment claim requires evidence that workplace harassment was severe or pervasive enough to create an objectively abusive environment, that the plaintiff experienced the environment as abusive, that the conduct occurred because of a protected characteristic, and that the employer can be held responsible for it.

The court concluded that the evidence showed substantially less conduct than Kaplan had alleged when the case was at the pleading stage. The evidence included one anti-Semitic comment Kaplan heard directly, a “Jew attorney” comment he learned about from another employee, and other comments he learned about indirectly. Kaplan said that he viewed several of the comments as showing that Pichardo was ignorant or foolish and that they did not significantly affect him. The court found the comments too few, too separated in time, and too mild to create an abusive work environment. It also found that none was physically threatening or humiliating and that Kaplan’s reactions showed he did not subjectively experience the workplace as abusive.

The court gave an independent reason for rejecting the claim. Pichardo was not Kaplan’s supervisor, and DOL had workplace harassment and nondiscrimination policies. After Kaplan reported the anti-Semitic comments, DOL filed a complaint on his behalf, investigated, moved Pichardo within the office, and ultimately ended Pichardo’s employment by accepting his resignation. The court found that DOL provided a reasonable way to complain and took appropriate corrective action.

Retaliation claim

The court denied summary judgment on Kaplan’s retaliation claim. A Title VII retaliation claim requires evidence that the employee engaged in protected activity, the employer knew about it, the employee suffered an adverse employment action, and the protected activity was a “but-for” cause of that action. The court found that Kaplan met this initial requirement for purposes of the motion by reporting Pichardo’s alleged anti-Semitic conduct, DOL’s knowledge of the report, and Kaplan’s termination.

DOL offered a legitimate, non-retaliatory reason for the termination: Dormin’s later investigation concluded that Kaplan had fabricated claims about personally knowing that Pichardo used anti-Semitic slurs. The question was therefore whether that explanation was a pretext—a false reason covering an unlawful retaliatory motive.

The court found a genuine dispute of material fact on pretext. Kaplan denied that his conversation with Dix occurred, maintained that his accounts were consistent, and testified that he had both firsthand and secondhand knowledge of Pichardo’s comments. The court also noted that Grant’s investigation had found support for at least some anti-Semitic comments from sources other than Kaplan, while Dormin’s investigation reached different conclusions. In addition, Dormin relied heavily on Dix’s account even though she had delayed reporting the alleged admission and had expressed favorable views of Pichardo. The court stated that it could not decide which witnesses were more credible or which investigation was more accurate at summary judgment.

Disposition

The court granted in part and denied in part DOL’s motion for summary judgment. It dismissed Kaplan’s Title VII hostile-work-environment claim and sustained his Title VII retaliation claim. The retaliation claim therefore remained in the case. The court directed the parties to meet and submit a joint letter describing proposed next steps.