COMES NOW, the Plaintiffs, ROBERT FRANK and BARBARA FRANK by and through their attorney, Sanford Kutner, whose new telephone number is 347-985-7777 and for a Complaint against the Defendants, state and allege as follows:
NATURE OF CLAIM
1. This action is for declaratory and injunctive relief and for damages to redress the deprivation of rights secured to the plaintiff by 42 U.S.C. 2000e et seq., Title VII; 29 U.S.C. § 794, Section 504 of the Rehabilitation Act of 1973, as amended; 42 USC 12101, Americans with Disabilities Act (ADA); and the First Amendment (Freedom of Religion and Freedom of Speech).
2. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 1331, 1343 (4), conferring original jurisdiction upon this court of any civil action to recover damages or to secure equitable relief under any Act of Congress under the Declaratory Judgment Statute, 28 U.S.C. §2201 et seq.
3. Plaintiff filed a timely charge, alleging discrimination on the basis of sexual harassment, with the New York State Division of Human Rights (“NYSHDR”) and transferred to the Equal Employment Opportunity Commission (hereinafter “EEOC”) for administrative purposes. The charge was filed within 180 days of the discriminatory employment practice described in this complaint.
4. On or about November 30, 2010, plaintiff was sent his Notice of Right to Sue – Title VII / ADA from the U.S. Equal Employment Opportunity Commission (A copy is annexed herewith as Exhibit A.). Even though Mr. Frank advised the proper person(s) at the NYSDHR, the aforementioned Notice was sent to his previous address, which delayed his receipt of the Notice until January 20, 2011.
5. The plaintiff, ROBERT FRANK, a male citizen of The Bronx, State of New York, was employed initially by the ORTHODOX JEWISH CONGREGATIONS OF AMERICA (“the OU”) and then hired as a mashgiach at Montefiore Medical Center (“Montefiore” or “Hospital”).
6. The plaintiff, BARBARA FRANK, a female citizen of The Bronx, State of New York, was employed by the OU as a mashgiach for certain kosher events which were distinct and separate from Montefiore Medical Center.
7. The defendant, UNION OF ORTHODOX JEWISH CONGREGATIONS OF AMERICA (“OU”) is responsible for kosher supervision, nationwide, which includes inspection and certification of Montefiore Medical Center to insure strict kosher guidelines are maintained, utilizing the symbol of the letter “U” encircled by the letter “O” which can be found on the label and signage of those food items that OU has certified as being Kosher to insure strict kosher guidelines are maintained and is directly responsible for the Robert Frank’s wife, Barbara Frank, being restricted from employment as a mashgiach in the Jewish community.
8. Added as additional defendants are MONTEFIORE MEDICAL CENTER, a New York Domestic Not-For-Profit Corporation, recipient of federal funding, and the employer of the plaintiff, Robert Frank.
9. Also added as a defendant, Christopher Berner, Esq., counsel for the defendant, whose actions as an attorney, individually and/or jointly, violated the rights of the plaintiff, Robert Frank.
BACKGROUND ASSERTIONS OF ROBERT FRANK
10. Robert Frank was employed as a mashgiach (kosher food supervisor) at Montefiore.
11. His duties were to inspect food deliveries to prevent non kosher food from entering Montefiore’s kitchen and cafeteria, then being cooked and served to hospital patients and cafeteria patrons.
12. His duties also included making periodic inspections through the food preparation areas to insure that all the kosher laws were being followed by the kitchen and cafeteria staff, since they received very little kosher food preparation training by Montefiore and/or the OU.
13. Robert Frank is exceptionally observant in the Jewish religion, in orthodox rituals, observances, and food.
14. The plaintiff strictly observes the Sabbath, lays tefilin every morning; prays three times a day, follows all orthodox rituals; observances, including fasting several days a year; maintains a strictly kosher home; eats only food that is strictly kosher when not at home; and lives the daily life of being an Orthodox Jew.
15. For several months there was one dishwashing machine to wash kosher products at Montefiore. Jewish law requires separation of dairy (“milchik”) and meat (“fleishik”) food and utensils; therefore one dishwasher is required to wash milchik and another is required to wash fleishik food utensils.
16. Even though notification was made by the plaintiff concerning the dishwasher situation to Frank’s supervisor, Rabbi Barry Kwiatkovsky, head mashgiach, who was approved and appointed by OU to Montefiore, and Rabbi Dov Schreier, the OU rabbinic coordinator many times over a several month period, resolution was not finalized for eleven months.
17. During this eleven month period, Jewish patients and family who kept Kosher as well as doctors and staff from Yeshiva Medical School were unknowingly subjected to consuming food that was not prepared in accordance with orthodox kosher dietary standards.
18. Frank was under orders by both the OU and Montefiore to violate his religious convictions (Exodus 20:16, the 9th Commandment), “Thou shall not bear false witness against thy neighbor”) and lie to anyone who inquires of any kosher violations that Frank had witnessed, and then tell them that everything was 100% kosher, if he had personal knowledge that there were kosher violations.
19. On March 6, 2008 , Tzvi Hersh Weinreb, executive vice president of the OU and Eleizer Eldelman executive director of OU were formally notified of numerous kosher violations that existed at Montefiore, about which Frank had previously found fault and requested assistance of the OU to intervene with Montefiore and rectify the situation.
20. Frank had made numerous other attempts to report the kosher violations at Montefiore, first to Montefiore and then to OU, but to no avail.
21. The Montefiore hospital kitchen was not maintained at a 100% kosher leve because the OU was negligent in their kosher supervision of Montefiore hospital and allowed the kosher infractions to continue for a long period of time.
22. The “Medical Staff House Staff Orientation Manual 2005” under FOOD AND NUTRITION SERVICES listed Chris Trivlis as the Director of Food and Nutrition Services.
23. The Manual went on to state, “At the Einstein division all meals are prepared in a kitchen under rabbinical supervision in accordance with Kosher Jewish dietary laws.” OU was the certifying agency.
24. Only after Frank went to the media, including the New York Post, and exposed the kosher problems did OU conduct any sort of investigation into the kosher violations that Mr. Frank had witnessed and documented by both audio and video tape.
25. After Frank went to the media, OU claimed that they had an “independent investigator” to research the kosher conditions at Montefiore.
26. The alleged independent investigator was apparently on the OU staff at the time of the inspection.
27. Even though OU became aware of many kashruth (kosher) violations, a set of Jewish dietary laws in accordance with Jewish halakha.
28. The violations, included allowing Montefiore Medical Center kitchen employees to bring non kosher foods directly into the kitchen for their personal use, which created an environment in which the plaintiff was prevented from doing his job, i.e., which was to keep non kosher food out of the Montefiore Medical. kitchen,
29. No action was initiated by OU to rectify the bringing in of non kosher foods.
30. After Frank went to the OU with video documentation of kosher violations, OU required all mashgiachs at Montefiore to sign a letter of confidentiality which would have prohibited knowledge of kosher violations at Montefiore to be publicized and/or disseminated outside of Montefiore.
31. Frank did not sign the letter of confidentiality knowing from experience that OU would not fulfill their obligation and Frank would be silenced
32. On December 17, 2009, the plaintiff’s employment was terminated by Montefiore after advising two internet blogs, which, in turn, informed the public of the poor kosher conditions that existed at Montefiore.
33. OU silenced Frank, the advocate for insuring that Jewish people who observe the rules of keeping Kosher.
34. OU allegedly has used “strong arm tactics” to force mashgiachs and/or Rabbis to certify products that are not kosher for fear of losing their livelihood as what happened to Frank.
35. Frank felt that by “going public” that there would be a public outcry and that OU and Montefiore would have to take action to repair the poor kosher conditions at Montefiore hospital.
36. Frank put his religious convictions as an observant Jew well ahead of his own personal welfare, knowing that his medical benefits would be terminated for him and his wife. He would rather suffer financially than go against his religious beliefs.
37. Frank was formally reprimanded for not lying to an individual, two days prior to his suspension regarding the kosher condition of the cafeteria. Frank could not and would not violate the Ninth Commandment.
38. Frank refused to sign the aforementioned OU’s letter of confidentiality, which prohibited inform any person and/or entity outside the facility of any witnessed violation.
39. OU, in retaliation, would not support plaintiff’s efforts to perform his duties as a mashgiach, which was punishment for refusing to sign the letter of confidentiality.
40. Even though OU was aware and possibly worked together Montefiore, the OU refused to interfere with the harsh and hostile working conditions that were imposed upon Mr. Frank by his supervisor Rabbi Kwiatkovsky.
41. OU has a large financial interest in not giving up their kosher certification of Montefiore hospital due to the loss of revenue for the kosher certification fees.
42. It appears that OU places financial remuneration ahead of religious doctrine. OU did not want to be exposed regarding internal kosher violations at Montefiore since other establishments could have the same situation.
43. As indicated in this Complaint, OU attempted to cover up the kosher violations that existed at Montefiore hospital by requiring all mashgiachs to sign confidentiality agreements to insure their continued silence in exchange for being allowed to work as a mashgiach within OU’s system.
44. Preventing the kosher violations from becoming public knowledge would naturally cause the OU a great deal of negative publicity, especially if there were a cover-up concealing the violations of certified establishments actually not being strictly kosher.
45. Robert Frank attended a meeting with the OU on or about November 3, 2008.
46. At the meeting OU was represented by Rabbi Dov Schreier, the rabbinic coordinator in charge of kosher supervision at Montefiore; Rabbi Yaakov Luban, supervisor of Rabbi Schreier; and Rabbi Kwiatkovsky.
47. Rabbi Kwiatkovsky admitted to the OU representatives at that meeting that he allows Montefiore Medical Center employees to bring non kosher food into the kitchen for personal use.
48. After the meeting OU did not take any corrective actions to correct the aforementioned revelation.
49. OU did, in fact, continue to thwart Robert Frank’s efforts to do his job as a mashgiach.
STATEMENT OF FACTS OF ROBERT FRANK
50. On July 11, 2005, Frank began his employment at Montefiore.
51. At the time of his employment there was no mashgiach (kosher food supervisor) job description in place.
52. Frank went to his supervisor, Rabbi Barry Kwiatkovsky (“Rabbi K”) with medical restriction notes.
53. A job description for the position that Frank held created on 11-1-06, about 17 months after Frank’s employment began.
54. The reason that a job description was created for Frank was so the Hospital would have grounds to terminate Frank’s employment.
55. The presumed basis for the termination would then be that Frank was unable to perform his assigned duties.
56. After the first settlement agreement was signed on January 8, 2008, no reasonable accommodation was given to Frank.
57. The Agreement was signed in good faith hoping to resolve the issues with the Hospital.
58. His health was placed at risk on a daily basis since Frank was subjected to considerable harsh and stressful working conditions including not being adequately and physically trained for the new position as per the January 28, 2011 agreement.
59. Frank was issued 3 discipline write-ups between March 2008 and November 2008, in retaliation for Frank filing his original complaint with New York State Division of Human Rights (“NYSDHR”).
60. Montefiore willfully and deliberately breached the agreement and still desires to allow the release of previous documented claims.
61. Frank began to request a reasonable accommodation from his supervisor Rabbi K on January 9, 2008, the first day after Frank returned to work after the first agreement was signed.
62. Rabbi K only gave Frank a moderate accommodation for his disability. He allowed Frank to sit down when Frank was required to put place mats on trays.
63. Rabbi K still made Frank take very heavy carts with at least 100 pounds of food from the kitchen to the food kiosk in the hospital lobby.
64. Frank tried to reason with Rabbi K and asked Rabbi K for some help because Frank was afraid that he would injure his back.
65. Rabbi K then threatened to give Frank a discipline write up for not doing his job.
66. When Frank asked for help to break down the delivery skids, his requests were often ignored and/or refused.
67. Only after Frank went to internet blogs, making public knowledge of poor kosher conditions, was Frank given a helper to move the heavy boxes off the delivery skids so Frank could check for non kosher food, so as to prevent the non kosher food from entering the kitchen, and being cooked and prepared.
68. When Frank left his position as a mashgiach for a tray passer position as per the Agreement, he only did so because he felt that he was not being supported by his supervisor Rabbi K, the hospital administration, and the Orthodox Union (“OU”).
69. OU is the entity in charge of kosher supervision of the hospital. Frank was thwarted in keeping the Hospital kitchen 100 percent kosher.
70. From the first day in the new tray passer position Frank was subjected to daily verbal and physical harassment.
71. Frank kept asking Rabbi K to have someone train him in the various hospital diets, which was never accomplished.
72. Frank was ordered on multiple occasions several times to take several food trays at a time to various patients without a food cart.
73. The tray passer position was destined to fail from the start.
74. Rabbi K always opposed Frank’s transfer from the mashgiach position to the tray passer position since as a mashgiach, Frank was required to be on duty on the Jewish Sabbath and various other Jewish holidays.
75. This requirement was allowed because it is necessary for kosher supervision.
76. As a tray passer Frank would have to bring food up to hospital patients which would require him to use the elevator and plug in food carts into electric outlets, which is not permitted on the Jewish Sabbath and/or holidays.
77. On November 25, 2009, at about 6:30 a.m. as Frank was walking into the kitchen the manager on duty Sanje Pepaj (“Pepaj”) started to harass Frank.
78. Pepaj asked Frank where he was, Frank replied that he had just finished praying.
79. Pepaj replied to Frank in a derisive manner that she needs him in the kitchen and that Frank should pray on his own time,
80. Frank tried to explain to Pepaj that he gets off at 1 p.m. and can only pray the morning prayers until a certain time in the morning.
81. Pepaj replied to Frank that “she needs him in the kitchen and that does not care about him having to pray
82. On November 26, 2009, another incident occurred. Pepaj approached Frank in the cafeteria complaining that she could not find him to sign for a Meal Mart meat delivery.
83. Frank told Pepaj that the reason that she was unable to find him was that he was praying his morning prayers.
84. Pepaj then started to give Frank a hard time, just as she did the previous day and told Frank the same thing as she did the day before being that he should pray on his own time.
85. Pepaj is a Muslim and treated Frank differently because he was Jewish.
86. On November 16, 2009, Frank was issued a discipline write up by his supervisor for trying to enforce the kosher rules as a mashgiach.
87. A few days before the discipline write-up was given to Frank, the OU representative, Rabbi Dov Schreier, was making an inspection of the Montefiore kitchen.
88. When Rabbi Schreier was making his inspection, he inquired with Frank if there were any kosher problems that needed to be addressed.
89. Frank informed Rabbi Schreier of numerous kosher violations as Frank had done in the past.
90. When Rabbi K discovered the remarks made by Frank during the OU inspection, Frank was given a discipline write-up for reporting the violations to the OU. Shortly after Frank was issued the discipline notice, he started to become very sick.
91. Frank then requested that Rabbi K allow him to go to the emergency room for treatment.
92. That request for medical needs was arbitrarily and capriciously denied by Rabbi K.
93. Frank had to go to another manager to be allowed to go to the emergency room.
94. During November and December 2009 Frank believed his attempts to enforce the kosher rules at Montefiore were not being addressed and that his efforts to repair the kosher conditions at Montefiore were being thwarted.
95. Frank contacted two internet blogs and gave them his story of the appalling kosher violations.
96. Frank felt that by going public, there would be a public outcry to fix the kosher problems at Montefiore exercising his right of being allowed to advise the public media.
97. His termination followed.
98. OU sent an investigator who was on their payroll to supposedly conduct an independent investigation. As an alleged paid employee the investigator of course found no kosher problems.
99. On December 7, 2009, Frank was required to meet with Christopher Berner (“Berner”), attorney for Montefiore.
100. Berner questioned Frank for 2 hours without Frank’s attorney present.
101. Berner never informed Frank’s attorney of record that he would be interrogating Frank, even though Berner knew that Sanford Kutner had been representing Frank.
102. In an e-mail sent on September 4, 2009 Berner responds to an e-mail written by Sanford Kutner, shortly after the second settlement which says,
“The facts are not as your client alleges. As Montefiore is represented
by counsel, in the future, please direct your emails and other inquiries
to Montefiore’s counsel, Joel Finger.”
Mr. Kutner’s response was:
“When a case has been resolved it is our policy not to contact previous outside counsel unless authorized, which you have just done. I have been chastised in the past for contacting outside counsel, accusing me of trying to run up the bill for the defendant. Now I always caution on the safe approach. We will not contact you in the future.”
103. The communication by Mr. Berner should never have been held without attorney representation for Frank especially since Berner notified Mr. Kutner to go to their retained counsel.
104. Based upon that conference between Frank and Mr. Berner, a termination of Mr. Frank ensued.
105. The basis for the termination was notification to the media of what was occurring regarding the false representation of Montefiore being Kosher.
106. What Frank tried to do was notify the individuals including the medical students of Yeshiva University and others who maintain a strictly kosher diet that Montefiore was not strictly kosher.
107. What Mr. Berner did as described above allegedly is a violation of the Lawyers Code of Professional Responsibility, 4.2:200 “Communication with a Represented Person.” NY DR 7-104(A)(1) governs communications with people who are represented by a lawyer. It is one of the most strictly enforced rules in the entire Code. NY DR 7-104(A)(1) provides that “[d]uring the course of the representation of a client a lawyer shall not . . . [c]ommunicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by a lawyer in that matter unless the lawyer has the prior consent of the lawyer representing such other party or is authorized by law to do so.”
108. Any evidence or follow on evidence from that meeting must be treated as tainted.
109. Any evidence must now be considered polluted.
110. During the period of Frank’s employment he was not allowed to do his job in an efficient manner. Efforts to maintain both the kitchen and cafeteria at a 100 percent kosher level were being thwarted Rabbi K, the director of the nutrition Christopher Trivillis, as well as representatives of OU, Rabbi Dov Schreier and Rabbi Yaakov Luban who are in charge of kosher supervision at Montefiore.
111. On March 4, 2008, Frank was issued a discipline write-up by his supervisor Rabbi K which was about 2 months after Montefiore signed the first settlement agreement with Frank.
112. In the discipline notice Frank was charged with not preventing the use of the so called kosher kitchen.
a. The basis was that kitchen workers brought non kosher food from outside the hospital into an office located inside the kitchen for a going away party for the manager on duty.
b. They used kosher utensils to warm up the non kosher food.
c. The official hospital policy established by Frank’s supervisor, Rabbi K, the head mashgiach, and also sanctioned by director of the nutrition dept Christopher Trivillis was to allow non kosher food into the kitchen for so called personal use.
d. By allowing non kosher food to be brought in close proximity to kosher food preparation areas places the kosher status of the hospital at risk.
e. When kitchen employees brought non kosher food into the
f. kitchen , Frank was powerless to prevent the non kosher food from entering the kitchen since hospital policy allowed non kosher food into the kitchen. Frank could say nothing when he saw what was happening.
g. Frank witnessed nutrition department employees pouring leftover food into the dairy kitchen sink
h. Frank tried to get the employees to stop but they refused.
i. Since the incident took place on a Saturday, the Jewish Sabbath , Frank could not kosher the sink which would require a 24 hour period of time from the non kosher food being poured into the dairy kitchen sink .
(1). In order to kosher a sink Frank would have to boil very hot water which is not allowed to do on the Jewish Sabbath and pour the water all over the sink ,
(2) The only way Frank could have koshered the kitchen sink would be if he violated his religious precepts and boiled water.
(3) Frank was also prohibited from asking a non Jew to kosher the sink for him , because a Jew is not allowed to ask a non Jew to perform any task that he is prohibited to do on the Jewish Sabbath.
(4) There was nothing Frank could do..
(5) On that Saturday night Frank left his supervisor Rabbi K a very detailed report as to what occurred
(6) Rabbi K claimed that he never received any report In addition,
(7) Frank left Rabbi K a phone voice mail message with details of what occurred
(8) The following Monday, when Frank returned to work, he followed up on his report and voice mail message and asked his supervisor if the sink had been koshered.
(9) Rabbi K claimed that he received no message or report.
(10) Rabbi K ordered Frank to turn on the kitchen kettle and boil water to kosher the dairy sink.
(11) When Frank asked Rabbi K to show how to turn on the kettle Rabbi K walked away from Frank into his office.
(12) A few minutes later notified Frank that he would be written up!
e. If Frank had not reported the incident of non kosher food being brought into the hospital kitchen no one else would have reported it; so Frank was punished for doing his job and reporting kosher violations.
70. On September 2, 2008, Frank received another discipline write up because Frank found 6 bottles of a non kosher grape drink in the cafeteria.
a. When Frank asked the porter on duty to remove the grape juice that he had placed them in the cafeteria, the porter on duty started to scream at Frank and refused to do his job.
b. Frank had to remove the non kosher juices by himself. Frank was then charged with causing a public disturbance; however, it was Abel Marano the porter on duty who, in fact, caused the disturbance.
c. Ironically when Frank was issued the discipline write-up, Rabbi K admitted that he signed for in the delivery of the non kosher grape juice. It is difficult to comprehend that Rabbi K did not check to determine whether the grape juice was kosher.
d. If Rabbi K had performed his job and properly and checked the delivery order, especially since it was grape juice, which is stringently observed, the whole situation could have been avoided.
e. It is difficult to comprehend that Rabbi K distorted the discipline write-up!
f. One version states that the manager on duty witnessed the incident.
g. When it was discovered that the manager did not personally witness the incident, the discipline write-up was altered to read that the manager on duty responded to the incident.
h. Rabbi K was just looking to give Frank another discipline write up, which purpose was to discourage Frank from doing his job as a mashgiach.
113. . On November 6, 2008, Frank was issued another discipline write-up on Saturday which is the Jewish Sabbath when a kitchen worker wanted to cook potatoes in the kitchen which was in violation of both OU policy and established hospital policy.
a. The employee Joseph Stoney asked Frank for permission to fry hash brown potatoes in the kitchen.
b. Frank did allow Stoney to cook the potatoes in the cafeteria because the cafeteria is open on the Jewish Sabbath.
c. Because Frank tried to do his job to the best of his ability Frank was issued a discipline write-up in which it states Frank is not to interfere with food production or service while in progress.
D .Kosher supervision is the reason that Frank was at Montefiore.
114. On February 26, 2009 Frank received another discipline write-up for excessive absenteeism.
a. This action, if nothing else, shows a pattern of retaliation solely to get Frank terminated.
b. On April 1, 2008 Frank was issued a note from his doctor that Frank would be having a medical procedure on April 16, 2008 and would not be allowed to work during that period.
c. Implausibly Frank still was given a discipline-write-up for excessive absenteeism eleven months after the so called excessive absenteeism took place.
d. This was a retaliatory like all the other write-ups was because
e. Frank filed the original complaint with the NYSDHR.
115. All damage actions were waived by Frank with the execution of the settlement agreements.
116. The defendant breached both settlement agreements
117. The iteration of the write-ups was solely to show a pattern.
118. Frank received no write-ups during the first few years of employment; yet when Rabbi K was confronted with a charge from the NYSDHR, negative personnel measures were initiated which appeared to be baseless and/or fabricated.
119. On November 16, 2009, Frank was issued another discipline write-up after Frank informed the OU representative of numerous kosher violations at Montefiore.
120. Instead of punishing the chief mashgiach (Rabbi K) who did not do his job and obligation as a Rabbi and Mashgiach by preventing non kosher food from entering the kitchen, being cooked, and served to unsuspecting patients and cafeteria patrons.
121. Frank, who did his job and reported the non kosher food to both his supervisors at Montefiore and the OU, was the one who was punished.
122. On 12-02-09 Frank received his last write up of his career at Montefiore.
123. Frank was charged with telling a visitor to the hospital that the hospital was not kosher.
A .What really occurred was that Frank was approached by an observant Jewish man who was with his wife, a patient in Montefiore waiting to give birth.
b. When the visitor asked if he could eat the food that was in the cafeteria
c. Frank informed the visitor that they cook on the Saturday which is the Jewish Sabbath.
d Jewish law forbids a healthy Jewish person from consuming food cooked on the Jewish Sabbath.
e. Frank who was concerned that a fellow Jew would inadvertently violate the Sabbath by consuming food cooked on the Sabbath,
f. Frank did his job and informed the visitor of what he could eat. Whenever Frank would see any kosher violations in the past and any visitor or patient would inquire about the kosher status of the Hospital, Frank was under orders to lie by both the hospital administration and the OU to anyone inquiring about kosher status.
124. Frank went to the internet blogs and other media outlets the violations of his rights.
125. Two settlement agreements that he signed in good faith were breached by the Hospital both times.
126. After Frank exhausted what he felt was all other options, he knew it was imperative to make the public knowledgeable of the poor kosher conditions at Montefiore.
127. An article was published by the New York Post after an interview where Frank provided information regarding the issues of trying to maintain Montefiore as a Kosher facility.
ALLEGATIONS OF BARBARA FRANK
128. Robert Frank’s wife Barbara was employed by the OU on a casual basis for about four years, working two or three days each month as a mashgiach.
129. Barbara Frank last worked for OU November 15, 2009 and as of February 25, 20101 has not been called to work.
a. On January 11, 2010, Barbara Frank called her supervisor at the OU, Rabbi Steinberg, to find out why she had not been called to work since her last day of employment with OU was November 15, 2009.
b. Steinberg answered, “You know why.”
c. Barbara Frank asked Steinberg why the situation with her husband should stop her from getting work.”You’re married to him,” Steinberg replied.
d. Rabbi Steinberg confirmed the above-referenced conversation took place with Barbara Frank in an interview given to “Failed Messiah” blog on January 11, 2010, in which Steinberg confirmed the above exchange took place, and confirmed that Barbara Frank is being denied work because of who she is married to.”
e. As of March 4, 2010, Barbara Frank has not been offered any position with or affiliated with OU, but not limited to mashgiach.
f. Plaintiff, Barbara Frank, has been and is still placed in a position where OU has made it impossible for Barbara Frank to receive employment as a mashgiach.
130. As of February 27, 2010, Barbara Frank has not been offered any position with OU, including, but not limited to mashgiach.
131. The actions of the OU make working conditions purposefully intolerable causing extreme emotional and financial distress upon the plaintiffs.
132. Knowing that exposing OU could be financially devastating, the plaintiffs would never haven take the risk of losing their jobs and benefits and, therefore, seeking assistance like food stamps, unless their religious convictions were more significant than fabricating the continuing kosher certification.
133. Plaintiffs are now placed in a position where the defendants have insured that they cannot receive employment as mashgiachs even though they have diligently sought similar positions at kosher operations.
134. The issue of the performance of the plaintiffs as being diligent machgiachs has never been questioned.
135. A mashgiach has an obligation and duty to be diligent and zealous to insure that individuals who keep kosher receive only food that is actually and strictly.
As a result of the blatant actions which violated the rights of the plaintiffs under 42 U.S.C. 2000e et seq., Title VII; 29 U.S.C. § 794, Section 504 of the Rehabilitation Act of 1973, as amended; 42 USC 12101, Americans with Disabilities Act (ADA); and the First Amendment (Freedom of Religion and Freedom of Speech), Montefiore is responsible for the action of its employees, including, but not limited to Rabbi Kwiatkovsky and/or possibly the actions of their counsel, defendant, Christopher Berner depending whether he was acting within and/or without the scope of this employment Frank differently and terminated his employment unjustly solely because Frank wanted to perform his job as a mashgiach ( kosher food supervisor ) honestly. A very hostile work environment was created for Frank by both his supervisor Rabbi Barry Kwiatkovsky, hospital administration and the OU, Franks’ efforts to do his job in accordance with recognized religious tenants were thwarted on an ongoing basis. All Frank wanted to do was his job as a mashgiach and was thwarted continuously. If Montefiore were truthful and sincere when the two agreements were executed, there never would have been a litany of retaliations and harassments.
Barbara Frank’s actions are against only OU. They have continuously prevented her from obtaining gainful employment because of their public actions.
WHEREFORE, plaintiff requests that this Honorable Court enters a judgment in favor of the plaintiff and against the defendants and such other relief that the Court seems just and appropriate as follows:.
Defendant’s actions were so egregious as to justify punitive damages.
By reason of the facts and circumstances stated in this verified complaint, plaintiffs have been damaged by defendants and are demanding adequate reparation for such mental, physical, and financial damage.
WHEREFORE, plaintiffs demand judgment against defendant
Insure that OU performs its duties as prescribed, regarding their obligation to insure people who keep kosher are actually receiving kosher foods; for example, during the eleven month period where there was only one dishwasher was operational which made all food certified as being kosher, was, indeed, a ploy to deceive
Insure that their proper motivation of OU is their religious duties and obligations as opposed to OU’s financial and political enrichment as well as those that they certify, such as Montefiore Medical Center.
Plaintiffs request bifurcation regarding liability and damages.
February 27, 2011
Sanford A. Kutner
Attorney for the Plaintiffs
6 Tara Place
Metairie, LA 70002