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 with 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 States 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 19th

day of June, two thousand thirteen.

PRESENT:

GUIDO CALABRESI,

JOSÉ A. CABRANES,

BARRINGTON D. PARKER,

Circuit Judges.

_____________________________________

AVROHOM MARMULSZTEYN,

Plaintiff-Appellant,

v. No. 12-3750-cv

JANET NAPOLITANO, 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-appellant Avrohom Marmulszteyn appeals from the District Court’s grant of 

summary judgment in favor of defendant-appellee Janet Napolitano, in her capacity as Secretary of 

the Department of Homeland Security. Marmulszteyn’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, Marmulszteyn alleges that his employer, U.S. Customs and Border Protection 

(“CBP”),

1

discriminated against him by not providing a reasonable religious accommodation, and by 

subjecting him to disparate treatment 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. Civ. 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 stated 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 (similar); see 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 suffered an adverse employment action). 

Moreover, even assuming that Marmulszteyn could establish a prima facie case for his failureto-accommodate claim, the defendant was entitled to summary judgment because Marmulszteyn was

offered a reasonable accommodation: CBP’s “Accommodation Tour” eliminated 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 accommodation 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-treatment 

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 inference 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 inference of discrimination, see 

Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) (noting that in order to raise an inference 

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

[ ]he was similarly situated 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 

employees”), he is not similarly situated to those legacy employees. Unlike 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 stated 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 Marmulszteyn, 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 other 
4

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 discrimination”), abrogated on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).