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Maruani v. AER Services

September 18, 2006

LEO MARUANI, PLAINTIFF,
v.
AER SERVICES, INC., DEFENDANT.



The opinion of the court was delivered by: Judge Michael J. Davis United States District Court

Memorandum of Law and Order

I. INTRODUCTION

This case is before the Court on Defendant's motion to dismiss Counts One through Four and Seven for lack of subject matter jurisdiction. [Doc. No. 10.] The Complaint alleges that AER violated the Minnesota Human Rights Act ("MHRA"), the Minnesota Whistleblower Act, the Workers Compensation Act, and Minn. Stat. §§ 181.933 and 181.961. The Complaint also alleges wrongful termination in violation of public policy and promissory estoppel. Oral arguments were held on May 17, 2006.

II. FACTUAL BACKGROUND

Plaintiff Leo Maruani was employed by Defendant AER as a shochet, or kosher butcher, from 1993 until September 8, 2005 when he was terminated. (Maruani Aff. ¶ 2.) AER is a for-profit business that provides slaughtering services for companies that sell kosher meat products, such as ConAgra Foods and Best Kosher Foods. (Ben-David Aff. ¶ 2; Miller Aff. Ex. 1.)

A. Shochet History/Description

Under Jewish dietary laws and customs known as Kashruth, meat is not considered "kosher," or fit for consumption by observant Jews, unless the animal has been slaughtered according to religious rituals by a specially trained and licensed individual called a shochet. (Ralbag Aff. ¶¶ 3-11; Small Aff. ¶¶ 2-11.) According to Kashruth, the shochet must have a license issued by an Orthodox Jewish rabbi and must be someone who is "God-fearing in the public's eye." (Ralbag Aff. ¶ 11; Small Aff. ¶ 12.) This has been interpreted to mean that the shochet must live a visibly pious life in the eyes of the Orthodox Jewish religious community. (Id.) Orthodox Jews believe that consumption of non-kosher foods defiles the holy and eternal soul. Therefore, members of the Orthodox Jewish community must be able to trust that the shochet has performed his responsibilities properly and that the meat is indeed kosher.

AER's customers separately retain the services of Orthodox Jewish rabbis to provide kosher certification for their products. (Ben-David Aff. ¶ 2.) The rabbis are responsible for ensuring that the customer's product meets all requirements of Kashruth. (Ralbag Aff. ¶ 2; Small Aff. ¶ 3.) Therefore, the rabbis must guarantee that every shochet employed by AER is "God-fearing in the public's eye." (Ralbag Aff. ¶ 11; Small Aff. ¶ 12.)

B. Maruani's Shochet Certification

Maruani holds a kabbalah certificate issued by Rabbi Jacov G. Safranovitz in Los Angeles, California. (Maruani Aff. ¶ 2.) Maruani's wife was not born Jewish, but converted to Judaism in 1999 in Israel and was again converted by an Orthodox rabbi in December 2000. (Id.) Shlomoh Ben-David, the president of AER, was aware that Maruani's wife was a converted Jew and viewed the documentation regarding the second conversion. (Id.)

C. Maruani's Work History

Maruani worked for AER at a Rapid City, South Dakota plant from 1995 to 2002. (Maruani Aff. ¶ 4.) During this time, he did not live near an Orthodox Jewish community. (Id.)

According to Maruani, the Rapid City plant burned down in 2002 and Ben-David asked him to transfer to Minnesota to work in Buffalo Lake. (Id. at ¶ 5.) Maruani states that Ben-David promised to pay him quarterly bonuses of $3,000 to $3,500 if he transferred to Minnesota. Maruani and his family relocated to Minnetonka, Minnesota. At the end of 2002, Maruani became the manager of AER's operations in Buffalo Lake and South St. Paul. (Maruani Aff. ¶ 5.)

In early 2003, Rabbi Aryeh Ralbag was appointed by ConAgra Foods to be the supervising and certifying rabbinical authority for ConAgra's "Hebrew National" brand of kosher foods. (Ben-David Aff. ¶ 7; Ralbag Aff. ¶ 13.) As a result of this appointment, Ralbag became the rabbi in charge of the South St. Paul facility. (Id.)

According to AER, after a review of Maruani's qualifications, Ralbag determined that Maruani was not "God-fearing in the public's eye" because he did not live within walking distance of an Orthodox Jewish synagogue. (Ben-David Aff. ¶ 8; Ralbag Aff. ¶ 14.) A necessary part of Orthodox Jewish observance is attending synagogue on shabbat and observers are not allowed to ride in a car or motorized vehicle to get to the services. Therefore, unless Maruani lived within walking distance of an Orthodox Jewish synagogue, he could not walk to synagogue on shabbat and in Ralbag's view was not living a visibly pious life. (Ralbag Aff. ¶ 14.) Ralbag also believed Maruani was unqualified to be a shochet because, in his opinion, (1) Maruani's wife had not been properly converted to Judaism, making their marriage invalid; (2) Maruani's kabbalah certificate was granted by an unacceptable source; (3) Maruani's wife did not cover her hair in public and did not use the mikvah, a ritual bath; and (4) Maruani did not keep a full beard and wear a dark suit and white shirt, as required under Orthodox interpretation of Jewish law. (Ralbag Aff. ¶¶ 15-18.)

Upon learning of Ralbag's noted deficiencies with Maruani's qualifications, Ben-David requested additional time to make the necessary changes. AER claims that Ralbag allowed Maruani until the spring of 2004 to make the changes and that Ben-David and Maruani had frequent conversations about these changes over the next year. (Ben-David Aff. ¶ 9.)

According to Maruani, however, he did not even meet Ralbag until January 2004 and Ralbag expressed that all of Maruani's documentation appeared to be in order at their meeting. (Maruani Aff. ¶ 7.) Furthermore, Maruani claims that Ben-David did not discuss his need to move to an Orthodox Jewish community until January 2005. (Maruani Aff. ¶ 20.)

In March 2004, Ralbag informed Maruani that he could not continue to manage the South St. Paul productions. According to Maruani, Ralbag informed him that "they" wanted Maruani out of the South St. Paul plant, but that Ralbag himself "had no problem with" Maruani. (Maruani Aff. ¶ 9.) After being removed from the South St. Paul plant, Maruani continued to manage the Buffalo Lake plant which was overseen by Rabbi Small, whom Maruani had worked with for many years. (Maruani Aff. ¶ 10.)

Sometime in the summer of 2004, Rabbi Small also determined that Maruani needed to change residences in order to be living a visibly pious life. (Small Aff. ¶ 15.) Rabbi Small, at Ben-David's request, allowed Maruani additional time to move, but continued to insist on a near-weekly basis that he was not an acceptable shochet. (Small Aff. ¶ 14.)

Ben-David and Moshe Fayzakov, the vice-president of AER, directed Maruani to move to the St. Louis Park neighborhood by the end of October 2005 or risk termination. (Maruani Aff. ¶ 20.) Maruani maintains that at least two other AER employees, Akivah Chernoshek and Moshe Git, were not asked to move near an Orthodox Jewish community. In September 2005, Maruani informed Ben-David and Fayzakov that he had found an apartment in St. Louis Park but wanted written assurances that AER would not make additional requests if he moved. (Maruani Aff. ¶ 21.) Maruani was terminated on September 8, 2005. (Ben-David Aff. ¶ 16.)

C. Maruani's Allegations

1. Immigration/Money Laundering

According to Maruani, Moshe Fayzakov, the vice-president of AER, was engaged in a scheme to recruit illegal aliens into the United States on false education visas and asked Maruani to launder money through his bank accounts in order to pay these workers. (Maruani Aff. ¶ 11.) Maruani maintains that his refusal to participate in this illegal scheme is the reason he was no longer allowed to work in the South St. Paul facility. Maruani believes that Benjamin Benzev, Maruani's replacement in South St. Paul and another employee, Daniel Khalkadarov, participated in Fayzakov's scheme.

Maruani further alleges that Khalkadarov repeatedly threatened Maruani and his family and that Khalkadarov was involved in an incident at the Buffalo Lake facility leading to Khalkadarov's temporary suspension. After Khalkadarov was suspended, the remaining workers were required to sit idle which escalated into a verbal confrontation between workers. Maruani, concerned about possible violence, called 911. Maruani maintains that Fayzakov threatened that the person who called 911 would be fired. (Maruani Aff. ¶ 17.) Maruani then flew to Chicago to inform Ben-David of the threats and retaliation regarding Fayzakov's activities.

2. Workers Compensation Claims

On May 16, 2005, Maruani's finger was crushed in a packing plant door. (Maruani Aff. ¶ 19.) Maruani reported the incident to AER's head administrative assistant and requested workers compensation despite having observed AER threaten employees with termination for reporting on-the-job injuries. (Maruani Aff. ¶ 19.) AER did not file a claim with its insurer and Maruani continued to work because he feared being terminated. AER later filed a claim, but since it was after Maruani was terminated, the claim was denied. (Id.)

III. PROCEDURAL HISTORY

Maruani commenced this lawsuit in Minnesota state court and AER removed the matter to this Court based on diversity jurisdiction. Count One of the Complaint alleges that AER discriminated against Maruani on the basis of his religion in violation of the MHRA, Minn. Stat. § 363A.08. Counts Two and Three allege violations of Minn. Stat. § 181.932 ("Minnesota Whistleblower Act") involving Maruani's suspicions of illegal immigration and money laundering. Count Four alleges a common law whistleblower claim regarding the alleged immigration and money laundering practices. Count Five asserts violations of Minn. Stat. § 181.933 for not providing a written reason for termination. Count Six asserts a violation of Minn. Stat. § 181.961 for not providing Maruani with a copy of his personnel file. Count Seven alleges that AER violated Minn. Stat. § 176.82 ("Minnesota Workers Compensation Act") by not submitting a timely workers compensation claim. Count Eight invokes the doctrine of promissory estoppel regarding bonuses which Maruani alleges AER promised him.

The parties signed a stipulation dated January 26, 2006 that AER need not answer Counts Five, Six, or Eight of the Complaint until after the Court's resolution of the instant motion. Additionally, all discovery has been postponed until disposition of this motion. This motion does not concern counts Five, Six, or Eight of the Complaint.

IV. ANALYSIS

A. Motion to Dismiss Pursuant to ...


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