FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 12, 2002

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 01-17203

________________________

D. C. Docket No. 00-8213-CV-PAS

STEVEN LUBETSKY,

Plaintiff-Appellant,

versus

APPLIED CARD SYSTEMS, INC.,

a corporation,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(July 12, 2002)
2

Before EDMONDSON, Chief Judge, BLACK and COX, Circuit Judges.

BLACK, Circuit Judge:

This appeal involves a claim for religious discrimination for failure to hire in

violation of Title VII of the Civil Rights Act of 1964, as amended by the Civil

Rights Act of 1991, 42 U.S.C. §§ 2000e to 2000e-17. Appellant Steven Lubetsky

alleges Appellee Applied Card Systems rescinded his conditional offer of

employment because of his religion. Appellee, however, asserts the decisionmaker was not aware of Appellant’s religion when he decided to rescind the offer. 

The district court granted summary judgment in favor of Appellee because

Appellant was unable to establish a prima facie case of disparate treatment

discrimination. This appeal followed.

I. BACKGROUND

 Although licensed to practice law in three states, Appellant sought

employment with Appellee as a correspondence analyst. On June 5, 1998,

Appellant interviewed with Debbie Gracia, a recruiter employed by Appellee. As

part of the interview, Appellant was given several competency tests. According to

Appellant, Gracia stated his performance was excellent and extended him a written

offer of employment conditioned upon the satisfactory results of a credit check. 

After Gracia extended the offer, Appellant advised her he is Jewish and inquired
3

about Appellee’s leave policy for observation of religious holidays. Gracia, who

also is Jewish, allegedly responded, “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 simply recalls Appellant stating the High Holidays

were approaching and asking if he could have them off. She testified she did not

understand he was an Orthodox Jew.

Immediately after the interview, Gracia sent an e-mail to John Bardakjy, the

Manager of the Correspondence Department, notifying him that she had extended a

conditional offer of employment to a person named Steven Lubetsky. Bardakjy

responded to Gracia that he recognized the name as being that of an individual

whom he had met at a job fair in August 1997. Bardakjy recalled the individual

behaved very aggressively and rudely upon learning Appellee was only hiring

people with previous experience. Based upon his recollection of the individual

with this name, Bardakjy directed Gracia to rescind Appellant’s conditional offer

of employment. Bardakjy explained to Gracia that Appellant’s personality and

demeanor would not be acceptable at Appellee’s workplace. Bardakjy never

mentioned Appellant’s religion. Additionally, Gracia testified she did not tell

Bardakjy about the conversation she and Appellant had concerning his religion. 
4

After being instructed to rescind the job offer, Gracia telephoned Appellant

at his home and falsely informed him that, unbeknownst to her at the time of their

interview, the position already was promised to someone else. She, therefore,

rescinded the offer of employment. Two weeks later, Appellant saw an

advertisement in the Sun Sentinel newspaper soliciting applications for the same

position for which he had applied and had been told was filled. As a result,

Appellant filed a complaint with the Equal Employment Opportunity Commission

(EEOC), alleging his job offer was rescinded because of his religion.

During the EEOC investigation, Bardakjy explained he had instructed

Gracia to rescind the offer of employment because he recalled Appellant to be an

aggressive and rude individual whom he previously had encountered at a job fair.

Bardakjy also stated he was not aware Appellant was Jewish until he learned of

Appellant’s EEOC complaint. In addition, Gracia admitted that although she lied

to Appellant when she said the position had been filled, she did so to spare

Appellant’s feelings by not drawing attention to his perceived character flaws. The

EEOC then issued a Dismissal and Notice of Rights letter, finding it could not

conclude Appellant was discriminated against based on his religion.

Approximately one month after the conclusion of the EEOC’s investigation,

Appellant attended a job fair, where he advised representatives of Appellee that he
1

In addition to appealing the district court’s grant of summary judgment to

Appellee, Appellant appeals the district court’s denial of Appellant’s motion for

reconsideration of the order granting Appellee’s motion for summary judgment. 

We affirm without discussion the district court’s denial of Appellant’s motion for

reconsideration. See 11th Cir. R. 36-1.

5

had not attended the job fair at which Bardakjy thought they met. Appellant told

the representatives he thought the decision not to hire him, therefore, was a case of

mistaken identity. Thereafter, Appellant filed a complaint in the United States

District Court for the Southern District of Florida alleging Appellee engaged in

intentional religious discrimination by rescinding his conditional offer of

employment. Specifically, he claimed Appellee refused to hire him because of his

religion.

Appellee subsequently moved for summary judgement, arguing even after

the completion of discovery, Appellant could not establish a prima facie case of

religious discrimination. The district court granted Appellee’s motion, finding

Appellant could not establish his prima facie case because there was no evidence

Bardakjy knew Appellant was Jewish when he ordered Gracia to withdraw the

conditional offer of employment. In response, Appellant filed a motion for

reconsideration, which was denied. Appellant then filed a notice of appeal.1

II. STANDARD OF REVIEW
6

We review the district court’s grant of summary judgment de novo, using the

same legal standard employed by the district court. Royal Ins. Co. of Am. v.

Whitaker Contracting Corp., 242 F.3d 1035, 1040 (11th Cir. 2001). Under this

standard, we view all facts and inferences reasonably drawn from the facts in the

light most favorable to the nonmoving party. Sierminski v. Transouth Fin. Corp.,

216 F.3d 945, 949 (11th Cir. 2000). Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, 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.” Fed. R.

Civ. P. 56(c).

III. DISCUSSION

Title VII makes it unlawful for an employer “to fail or refuse to hire or to

discharge any individual, or otherwise to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or national origin.” 42

U.S.C. § 2000e-2(a)(1) (1994). Appellant alleges Appellee violated Title VII by

failing to hire him on the basis of his religion. As a result, Appellant contends the

district court erred in granting summary judgment in favor of Appellee. 
7

A plaintiff alleging disparate treatment discrimination must first establish a

prima facie case of intentional discrimination. See McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973); see also Bass v. Bd. of

County Comm’rs, Orange County, FL, 256 F.3d 1095, 1103-04 (11th Cir. 2001);

Walker v. NationsBank of Fla., N.A., 53 F.3d 1548, 1555 (11th Cir. 1995). Where

the plaintiff proves his prima facie case by circumstantial evidence, the burden of

proof shifts to the defendant “to articulate some legitimate, nondiscriminatory

reason for the employee’s rejection.” McDonnell Douglas, 411 U.S. at 802, 93 S.

Ct. at 1824; see also Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101

S. Ct. 1089, 1093 (1981). Then, if the defendant carries his burden, the plaintiff

must be given “a full and fair opportunity to demonstrate by competent evidence”

that the presumptively valid reasons offered by the defendant were a pretext for

discrimination. McDonnell Douglas, 411 U.S. at 805, 93 S. Ct. at 1826; see also

Burdine, 450 U.S. at 253, 101 S. Ct. at 1093.

As a general matter, under the four-pronged McDonnell Douglas framework,

a prima facie case of intentional discrimination using circumstantial evidence is

established if the plaintiff shows: (1) he is a member of a protected class; (2) he

applied for and was qualified for a job for which the employer was seeking

applicants; (3) despite his qualifications, he was rejected for employment; and (4)
8

after the rejection, the employer continued to seek applicants with the plaintiff’s

qualifications outside of plaintiff’s particular protected class. 411 U.S. at 802, 93

S. Ct. at 1824. 

More specifically, where intentional religious discrimination under Title VII

is alleged, a prima facie case is established if the plaintiff demonstrates the

challenged employment decision was made by someone who was aware of the

plaintiff’s religion. See generally Beasley v. Health Care Serv. Corp., 940 F.2d

1085, 1088 (7th Cir. 1991) (noting the prima facie case for discriminatory

discharge based on a plaintiff's religious practices is established by showing: (1)

the practices are religious in nature; (2) the plaintiff called the religious practices to

the employer’s attention; and (3) the religious practices were the basis of the

plaintiff’s discharge); cf. Clay v. Holy Cross Hosp., 253 F.3d 1000, 1005-07 (7th

Cir. 2001) (holding plaintiff failed to establish a prima facie case of pregnancy

discrimination even though she was visibly pregnant where she could not prove the

person who decided to terminate her employment knew she was pregnant); Geraci,

82 F.3d at 580-82 (holding plaintiff failed to establish a prima facie case of

pregnancy discrimination even though she told six co-workers she was pregnant

where she could not provide any evidence the person who decided to terminate her

employment knew she was pregnant); Robinson v. Adams, 847 F.2d 1315, 1316
2

For example, in discrimination cases under Title VII for an employer’s

failure to provide a religious accommodation, several circuit courts have held the

plaintiff must establish a prima facie case by showing: (1) he or she has a bona fide

religious belief that conflicts with an employment requirement; (2) he or she has

informed the employer about this belief; (3) he or she was disciplined for failure to

comply with the conflicting employment requirement. See Virts v. Consol.

Freightways Corp. of Del., 285 F.3d 508, 516 (6th Cir. 2002); Chalmers v. Tulon

Co., 101 F.3d 1012, 1019 (4th Cir. 1996); Protos v. Volkswagen of Am., Inc., 797

F.2d 129, 133-34 (3d Cir. 1986); Philbrook v. Ansonia Bd. of Educ., 757 F.2d 476,

481 (2d Cir. 1985), aff’d, 479 U.S. 60, 107 S. Ct. 367 (1986); Turpen v. Mo.-Kan.-

Tex. R.R., 736 F.2d 1022, 1026 (5th Cir. 1984); Anderson v. Gen. Dynamics

Convair Aerospace Div., 589 F.2d 397, 401 (9th Cir. 1978).

9

(9th Cir. 1987) (concluding the McDonnell Douglas elements did not rationally

create an inference of intentional discrimination even though plaintiff filled out an

application for employment and checked a box indicating his race, where plaintiff

offered no evidence the decision-makers knew or saw the information concerning

his race). Accordingly, an employer cannot intentionally discriminate against an

individual based on his religion unless the employer knows the individual’s

religion.2

 See Robinson, 847 F.2d at 1316 (indicating plaintiff could not establish a

prima facie case where there was no evidence the decision-maker knew plaintiff

belonged to a protected class). Therefore, when we evaluate a charge of disparate

treatment employment discrimination, we must focus on the actual knowledge and

actions of the decision-maker. Walker v. Prudential Prop. & Cas. Ins. Co., 286
3

Appellant argues Bardakjy’s recollection of the previous encounter is

mistaken because Appellant was out of town during that time, making this a case of

mistaken identity. Even if the job offer was rescinded due to a case of mistaken

identity, drawing all reasonable inferences in Appellant’s favor, such a fact does

not establish Bardakjy knew about Appellant’s religion.

10

F.3d 1270, 1274 (11th Cir. 2002), citing Bass v. Bd. of County Comm’rs, 256 F.3d

1095, 1105 (11th Cir. 2001).

In this case, Appellant failed to establish a prima facie case of intentional

religious discrimination by Appellee because he did not present any evidence that

the decision-maker knew of his religion. Instead, all of the evidence indicated

Bardakjy, the individual who made the decision to rescind Appellant’s conditional

job offer, was unaware of Appellant’s religion. First, Gracia testified she never

told Bardakjy about Appellant's religion. Additionally, Bardakjy testified he did

not know Appellant was an Orthodox Jew at the time he instructed Gracia to

rescind the conditional offer of employment. Rather, Bardakjy directed Gracia to

rescind the offer based on his recollection of Appellant’s personality and demeanor

during a previous encounter.3

 Moreover, Bardakjy testified he had no knowledge

of Appellant’s religion until he received notice Appellant had filed a complaint

with the EEOC alleging religious discrimination. Therefore, viewing the facts in

the light most favorable to Appellant, no reasonable fact-finder could conclude that

Bardakjy knew of Appellant’s religion, much less that Bardakjy's decision to direct
11

Gracia to rescind Appellant’s job offer was motivated by his knowledge of

Appellant’s religion. The district court, consequently, did not err in granting

Appellee’s motion for summary judgment.

IV. CONCLUSION

It is necessary for a plaintiff attempting to establish a prima facie case of

intentional religious discrimination under Title VII to demonstrate the challenged

employment decision was made by someone who had knowledge of the plaintiff’s

religion. Appellant failed to establish that the person responsible for deciding to

rescind his job offer knew about his religion. As a result, Appellant did not

establish a prima facie case. Accordingly, the district court did not err in granting

summary judgment in favor of Appellee.

AFFIRMED.