12

- 3750

- cv

Marmulszteyn v. Napolitano

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT



## SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed w ith this Court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by

counsel.

At a stated term of the United St ates Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square , in the City of New York, on the 19 th

day of June , two thousand thirteen

.

PRESENT:

G UIDO C ALABRESI

,

J OSÉ A. C ABRANES

, B ARRINGTON D. P ARKER

,

Circuit Judges.

_____________________________________

A VROHOM M

ARMULSZTEYN

,

Plaintiff

- Appellant

,

v. No. 12

- 3750

- cv

J ANET N APOLITANO

, Secretary, United States Department of Homeland Security

,

Defendant

- Appellee

.

_____________________________________

FOR PLAINTIFF

- APPELLANT: Alan E. Wolin, Wolin & Wolin, Jericho, NY

.

FOR DEFENDANT

- APPELLEE : Layaliza Soloveichik, Varuni Nelson

, Assistant United States Attorneys, for Loretta E. Lynch, United States Attorney, United States Attorney’s

Office for the Eastern District of New
York, Brooklyn

, NY

.2

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

York ( Dora L. Irizarry

, Judge

).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the District Court’s August 24, 2012 judgment is AFFIRMED

.

Plaintiff

- a ppellant Avrohom Marmulszteyn appeals from the District C ourt’s grant of

summary ju dgment in favor of defendant

- appell ee Janet Napolitano, in her capacity as Secretary of

the Department of Homeland Security. M armul szteyn ’s claims, brought pursuant to Title VII of the

Civil Rights Act of 1964, see 42 U.S.C. §§ 2000 et seq.

, are based on alleged religious discrimination.

In particular, Marmul szteyn alleges that his employer, U.S. Customs and Border Protection

(“CBP”)

, 1 discriminated against him by not providing a rea sonable religious accommodation, and by

subject ing him to disparate treat ment based on his religion . We assume the parties’ familiarity with

the underlying facts, the procedural history of the case, and the issues on appeal.

DISCUSSION

We review de novo an order granting summary judgment and “resolv [e] all ambiguities and

draw[ ] all permissible factual inferences in favor of the party against whom summary judgment is

sought.” Burg v. Gosselin , 591 F.3d 95, 97 (2d Cir. 2010) (quoting Wright v. Goord , 554 F.3d 255, 266

(2d Cir. 2009)) ; see Fed. R. Ci v. P. 56(a); Costello v. City of Burlington , 632 F.3d 41, 45 (2d Cir. 2011)

.

After reviewing the record de novo , we conclude that Marmulszteyn ’s arguments are without

merit. Although we affirm substantially for the reasons stat ed by the District Court in its August 22,

2012 Memorandum and Order, we briefly note the reasons underlying our decision

.

A.

First, we agree with the District Court that Marmulszteyn failed to establish a prima facie case

for his failure

- to

- accommodate claim because no evidence suggests that he suffered an adverse

employment action. See, e.g. , Joint App’x 183 ( Marmulszteyn testifying that he had not been

disciplined “for not showing up on Saturday”); id. at 270

- 71 ( s imilar) ; s ee also Baker v. Home Depot

, 445

F.3d 541, 546 (2d Cir. 2006) ( noting that a failure

- to

- accommodate claim requires a plaintiff to show

that he has suffere d an adverse employment action)

.

Moreover, e ven assuming that Marmulszteyn could establish a prima facie case for his failure

to

- accommodate c laim, the defendant was entitled to summary judgment because Marmulszteyn was

offered a reasonable accommodation : CBP’s “Accommodation Tour” eliminate d Marmulszteyn ’s

1 CBP is a component of the Department of Homeland Security.3

religious conflict because

, when he was assigned a Saturday morning shift, he was allowed to switch

to a Saturday shift beginning at 10:00 p.m., after his Sabbath ends

. 2 See Cosme v. Henderson

, 287 F.3d

152, 158 (2d Cir. 2002) (“In formulating . . . a[ ] [reasonable] accommodation, both the employer

and employee should remain flexible, with an eye toward achieving a mutually acceptable

adjustment

. . . . [T]o avoid Title VII liability, the employer need not offer the accommodation the

employee prefers. Instead, when any reasonable a ccommodation is provided, the statutory inquiry

ends.”) ; see also Joint App’ x 97 , 197.

B.

Second, we agree with the District Court ’s dismissal of Marmulszteyn’ s disparate

- treat ment

claim. 3 This claim is governed by the familiar burden

- shifting framework set forth in McDonnell

Douglas Corp. v. Green

, 411 U.S. 792, 802

- 04 (1973) , under which a plaintiff must satisfy the minimal

burden of making out a prima facie case of discrimination by showing that : “(1) he is a member of a

protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment

action; and (4) the adverse action took place under circumstances giving rise to the inf erence of

discrimination.” Ruiz v. Cnty. of Rockland

, 609 F.3d 486, 492 (2d Cir. 2010).

Not only did Marmulszteyn fail to show that he suffered an adverse employment action, see
Part A, ante

, but he also presented no evidence giving rise to an inferenc e of discrimination, s ee Graham v. Long Island R.R.

, 230 F.3d 34, 39 (2d Cir. 2000) (noting that i n order to raise an inference

of discrimination on the basis of being subjected to disparate treatment, “the plaintiff must show

[ ]he was similarly si tuated in all material respects to the individuals with whom [ ]he seeks to

compare h[im]self.” (internal quotation marks omitted)). Although Marmulszteyn complains that

certain CBP employees received “permanent exemptions ” from working on Saturdays (“legacy

emp loyees”)

, he is not similarly situated to t hose legacy employees. U nlike the legacy

employees―

who “had worked for one of CBP’s predecessor agencies . . . [and received the

permanent] exemptions

. . . [because they] had already negotiated [those exemptions ] with the

predecessor agencies ”

― Marmulszteyn did not come from a predecessor agency and joined CBP

“ when CBP consistently denied employee requests for permanent religious exemptions from work. ”

Marmulszteyn v. Napolitano , No. 08

- CV

- 4094

, 2012 WL 3645776, at *8 (E.D.N.Y. Aug. 22, 2012). In

sum , we find no evidence in this record that gives rise to an inference of discrimination. 4

2 Marmulszteyn is a Hasidic Orthodox Jew and informed CBP that his faith precluded him from working on Saturdays until an hour after sunset. Joint App’x 78.

3 Because we affirm the dismissal of Marmulszteyn’s disparate

- treatment claim for the reasons st ated by the District Court, we do not consider the government’s exhaustion arguments.

4 Indeed, the fact that some legacy employees are Orthodox Jews, like Marmulsz t eyn, further militates against an inference of discriminatory intent. See Joint App’x 204, 230

- 31; Austin v. Ford Models, Inc. , 149 F.3d 148, 153

- 54 (2d Cir. 1998) ( holding that no inference of discrimination on the basis of sex existed “[b] ecause Austin admits that two other4 CONCLUSION

We have considered all of Marmulszteyn ’s arguments on appeal and conclude that they are

without merit. Accordingly, the August 24, 2012 judgment of the District Court is AFFIRMED

.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

similarly situated women employees

. . . received additional staffing, and because she has alleged no other fact raising an

inference of sex discrimi nation ” )

, abrogated on other grounds by Swierkiewicz v. Sorema N.A.

, 534 U.S. 506 (2002).