I am attorney for plaintiff in the above matter. The following shall serve as plaintiff’s response to defendant’s letter, dated August 7, 2000, requesting an opportunity to move for partial summary judgment on plaintiff’s discrimination in employment on the basis of religion (Jewish) claim under Title VII of the Civil Rights Act of 1964. For the reasons set forth below, plaintiff contends that defendant’s proposed motion would be denied if submitted and therefore should not be made.

The gist of plaintiff’s argument is that the four incidents of discrimination on the basis of religion that plaintiff had testified to during her deposition, even if assumed to be true, were not so severe and pervasive as to be deemed a hostile environment under Title VII. Plaintiff rejects this argument and would oppose this motion on two grounds:

Factual. Plaintiff maintains that defendant’s conduct, discussed more fully below, was indeed severe and pervasive so as to have created a hostile environment. That is, defendant has skillfully pared down each of the incidents so as to make these incidents appear to be petty, trivial, and disconnected. Also, these incidents are perhaps notable examples of ongoing religious discrimination, but are by no means the only bases for plaintiff’s claim. Most importantly, the issues at bar—how frequently did these incidents occur? were these incidents part of a pattern or disjointed? what is the degree of severity of these incidents?— are logically and customarily the province of the trier of fact. That is, they should not be determined by a battle of dueling affidavits and deposition transcripts.

Editors Commentary:  What's coming is good stuff.  Plaintiff's attorney has done his homework.  He cites case law where the "totality" of actions defines severity and pervasiveness.  This would include not just Religious, but Racial and Physical discrimination.  Plaintiff's attorney then goes on to say that elimination of one aspect of discrimination (Religious) paints an incomplete picture of the totality of discrimination Ms. Leventhal was exposed to (which of course, is exactly what the US Attorney wants to accomplish).

Legal. The hostile environment for which plaintiff complains was the result of race, religion, and disability discrimination. A recent Second Circuit case, Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000), held:

Determining whether workplace harassment was severe and pervasive enough to be actionable depends on the totality of the circumstances. Because the critical inquiry focuses on the nature of the workplace environment as a whole, a plaintiff who herself experiences discriminatory harassment need not be the target of other instances of hostility in order for those incidents to support her claim. Nor must offensive remarks or behavior be directed at individuals who are members of the plaintiff’s own protected class. Remarks targeting members of other minorities, for example, may contribute to overall hostility of the working environment for a minority employee.

(internal citation omitted) (emphasis added). In Cruz, the Court considered harassment directed against co-workers of different minority groups to be part of the totality of "workplace harassment." A fortiori, this Court must consider the totality of harassment directed against plaintiff, herself, be it of a disability, racial, or religious variety.

To exclude the religious component of defendant’s discrimination would present an incomplete picture to the jury, since defendant is not going to move for summary judgment on plaintiff’s other discrimination claims. Thus, should plaintiff be excluded from mentioning her allegations of religious discrimination, the totality of circumstances will not be presented to the trier of fact. Thus, even if this Court were to find that plaintiff’s claim for religious discrimination standing alone was insufficient to prove hostile environment, it cannot be artificially separated from her overall workplace experience. Thus, even if, for example, her hostile environment was 75% due to her disability, 15% due to race, and just 10% due to religion, to remove even that 10% would be to not present the totality of circumstances. In short, either your Honor (on a summary judgment motion) or the jury (after trial) should make one determination: "As a result of illegal discrimination did plaintiff experience a hostile environment?"

Plaintiff has a much less sanguine opinion of the incidents cited by defendant. As for the first incident, the "menorah incident," it is notable that both Ms. Brenda Grant and Ms. Agatha Stewart, plaintiff’s supervisors, had testified that they permitted employees to put up Christmas decorations and seemed to indicate they participated therein. Thus, they allowed the celebration of a religious holiday to be the United States Immigration and Naturalization Service ("INS") Section 245 policy, not a spontaneous personal choice. Brenda Grant was far from amicable when she refused to allow plaintiff to display a small menorah. Her words were "No Jewish things here." This was not done in the privacy of her office. It was done publically, subjecting the plaintiff to religious humiliation and ostracism within the area in which she worked.

In regard to the third or "Passover" incident, Brenda Grant did not just tell plaintiff, "why are you eating that instead of bread." Rather, she publically berated and ridiculed her numerous times for doing so, hammering home her opinion that "you’re not Jewish."

In the fourth or "Meissner" incident, plaintiff testified that the religious affiliation of INS Commissioner Doris Meissner became a virtual obsession of Ms. Grant and another INS supervisor, for days leading up to her visit to the INS New York District Office. They would constantly and emphatically discuss the issue of "Is she [Ms. Meissner] a Jew?" Plaintiff and her co-workers heard all of their conversations. Plaintiff believed that her supervisor’s felt a plague was approaching if Doris Meissner was "a Jew." It made plaintiff feel that she was working in an environment where those of the Jewish faith were viewed with ridicule and hostility.

What defendant fails to mention is that religion was a regular, not sporadic, "topic of conversation" within plaintiff’s workplace. Ms. Grant led these discussions, which were not in the nature of intellectual or dispassionate "comparative theology." Rather, Ms. Grant would regularly ridicule plaintiff’s adoption of the faith of her husband, Judaism. Her comments suggested that she made a big error in deciding to practice Judaism and she considered it her duty to dissuade her from doing so. These repetitive "discussions," are arguably more indicative of a hostile environment than all the incidents cited in defendant’s letter.

There is no dispute that defendant has the right to move for partial summary judgment under Rule 56. However, plaintiff submits that to do so is contrary to the letter, spirit, and interpretation of that rule. The purpose of summary judgment is to identify rather than decide issues of fact. This has been adequately done in the parties’ letters. We should now proceed with trial.