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WECHSLER v. R D MGMT. CORP.

August 23, 1994

YEHUDAH WECHSLER, Plaintiff,
v.
R D MANAGEMENT CORP., Defendant.



The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 This is a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure by defendant R D Management Corp. ("R D Management") seeking dismissal of the employment discrimination complaint of plaintiff Yehudah Wechsler ("Wechsler"). Wechsler alleges that he was denied employment with the company based on the fact that he is an Orthodox-observant Jew. No opposition papers were submitted, although plaintiff appeared at oral argument. For the following reasons, the motion is granted.

 FACTS

 R D Management is a real estate management company specializing in the management of shopping centers and malls throughout the United States and Puerto Rico. See Def.'s 3(g) Statement, P 3; Affidavit of Robert P. Murray (R D Management's Office Manager), May 31, 1994 ("Murray Aff'd"), P 3. At the time of the events which gave rise to this action, R D Management managed approximately 110 shopping centers, encompassing approximately 2,700 stores. Murray Aff'd, P 3. Murray also states that R D Management is owned by several families, all of whom are of the Jewish faith; all the owners are active in the Jewish community; Stanley Tanzer, the Comptroller of the company since 1978 is an Orthodox-observant Jew; and the company's in-house accountant since 1990 (now working there on a part-time basis) is also an Orthodox-observant Jew. Murray Aff'd, PP 7-9.

 As noted above, Wechsler is also an Orthodox-observant Jew. Def.'s 3(g) Statement, P 1. In July of 1987 Wechsler responded to an advertisement placed by R D Management in the New York Times; R D Management was looking for someone to fill a position in its collection department. According to Murray, "the position required someone with knowledge of the commercial real estate business, the ability to calculate and collect the different types of rents from tenants, to abstract shopping center leases, to use a computer and other assorted duties." Murray Aff'd, P 5 (footnote omitted).

 The interview was held on July 22, 1987, with Ms. Nickolette Mitchell ("Mitchell"). Ms. Mitchell testified at her deposition that Wechsler was not called back for another interview because "I assume he was not the best person for the position and that's why he was not called back." Affidavit of Spencer L. Schneider, May 31, 1994 ("Schneider Aff'd"), Ex. B at 125. Mitchell testified that Wechsler was not selected because "he probably wasn't suited for the position." Schneider Aff'd, Ex. B at 125. Mitchell explained:

 
He didn't seem overly bright -- he didn't seem very bright. He was not animated. He didn't seem quick and he didn't seem very interested in terms of asking the questions about the company or asking anything about the position.
 
His answers to questions were very short, not very in-depth. It was very vague.
 
He didn't seem very personable. What's the word? He didn't seem very over-enthusiastic or bright. . . .
 
Q. [by plaintiff's attorney] *fn1" Do you remember anything at all that he said?
 
A. I do recall, and only because this was brought up, because he had to leave early on Fridays and only because two years after I left the company it was told to me, but I don't know.

 Schneider Aff'd, Ex. B at 126-28. *fn2" Mitchell also testified that at the time of the interview she was aware that "we did, we still do have an employee at R D Management who left early on Fridays and it did not hinder his position." Schneider Aff'd, Ex. B at 170 (referring to Mr. Tanzer).

 Sometime after the July 22, 1987 interview, Mitchell interviewed and hired Ms. Romelia Hotchner ("Hotchner") for the collection department. Mitchell testified that she was hired because

 
I believe she was very smart, very bright in the interview, very -- I believe, from my conversations with her, she knew about real estate, commercial real estate. . . .
 
She was very enthusiastic about the job. She asked a lot of questions about the company. She was genuinely interested in the company and what they do.
 
She seemed like a take-charge person, a take-charge individual who wouldn't need a lot of prompting and who would not need a lot of supervision, constant supervision.

 Schneider Aff'd, Ex. B at 195-96. Hotchner left R D Management after only a few days because, according to Mitchell, "it wasn't really what she [Hotchner] wanted to do[.]" Schneider Aff'd, Ex. B at 196.

 Following Hotchner's departure R D Management ran the advertisement again in the New York Times on August 27, 1987. Schneider Aff'd, Ex. H. When Wechsler saw the advertisement he telephoned Mitchell and, "in response to Mr. Wechsler's inquiries about the position, Ms. Mitchell merely stated 'someone else would be better for the job.'" Complaint, P 16. R D Management then interviewed and hired Joel Stahl who "kept the post for a few years, and possessed experience in the commercial real estate business, having worked for 3 years as a collector for two prominent commercial real estate companies[.]" Murray Aff'd, P 6. Mr. Stahl is of the Jewish faith but apparently is not Orthodox-observant. Murray Aff'd, P 6.

 As noted above, plaintiff has not submitted any affidavit, Rule 3(g) Statement, or memorandum of law in opposition to defendant's motion for summary judgment. However, plaintiff's position can be gleaned from the complaint and his deposition testimony. In paragraph twelve of the complaint, plaintiff alleges that "once Mr. Wechsler informed Ms. Mitchell that he was an Orthodox-observant Jew, Ms. Mitchell abruptly brought the interview to a close." Complaint, P 12 (attached as Exhibit A to the Schneider Affidavit).

 During his deposition, Wechsler testified that at the point in the interview when he informed Mitchell that he was an observant Orthodox Jew, and therefore would need to leave early on Fridays and be away from the office on Jewish holidays, Mitchell's tone and demeanor changed. Wechsler explained:

 
Q. You say her tone of voice and expression changed; right, yes or no?
 
A. Yes.
 
Q. How did it change?
 

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