these complaints are remote and request the parties to include consideration of evidence issues presented by the complaints in their pre-trial memoranda.
D. National Origin Disparate Treatment Claim
Regenbogen also claims that he was discriminated against on the basis of his national origin; he was born in Austria. However, Regenbogen has not established a prima facie case on national origin discrimination. He establishes that he is a member of a protected class and that he lost his job, but he does not establish that his discharge took place under circumstances creating an inference of discrimination. He has not presented any proof on the national origin of the two employees who at different times assumed his job duties and has not demonstrated other circumstances from which the trier of fact could infer discrimination. His claim that another employee who he believed to be of Eastern European origin was terminated in the February 1991 RIF is too insubstantial to create an inference of discrimination. Regenbogen's national origin discrimination claim must therefore be dismissed.
E. Disparate Impact Claim
Regenbogen alleges that Willard engaged in several employment practices that resulted in a disparate impact on Jews and other minorities at the time of the 1991 RIF. Specifically, he claims (1) that Jewish and other minority director level employees were segregated in Grandview while white Christian directors had offices near the facility director in the main administration building; (2) that Willard's decision to discontinue a previous practice of providing housing for certain employees impacted disproportionately on Jewish employees; and (3) that nepotism and subjective decision making in the layoff process itself caused the layoffs to impact disproportionately on Jews. Pl. Mem. at 3-4, 7-9.
Disparate impact cases differ from disparate treatment cases in that the plaintiff need not show the defendant to have been motivated by a discriminatory intent. Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 645-46, 104 L. Ed. 2d 733, 109 S. Ct. 2115 (1989). Instead, the plaintiff may make a prima facie case by showing that a particular employment practice has had "significant adverse effects" on the protected group. Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 986, 101 L. Ed. 2d 827, 108 S. Ct. 2777 (1988). Although disparate impact plaintiffs classically challenge tests or systems, plaintiffs may also challenge subjective decision making processes under a disparate impact theory. Id at 988, 991. Ordinarily, plaintiffs rely heavily on statistical evidence to make a prima facie disparate impact case. Id. at 987. However, plaintiffs cannot make a prima facie case by simply showing a statistical "bottom line" adverse impact. Instead, they must demonstrate that specific elements of the defendant's policy caused a significant impact on the protected class. Wards Cove, 490 U.S. at 656-657 (rejecting Court of Appeals use of one set of cumulative comparative statistics as evidence of the disparate impact of each of employer's allegedly discriminatory hiring practices and instructing the courts below to require the plaintiffs to show as part of their prima facie case that specific elements of the hiring process had a significantly disparate impact on nonwhites); see also Lopez., 930 F.2d 157, 159-60 (rejecting appellant's statistical proof of disparate impact --"a box of affirmative action reports" showing "a void of black employees" because they did not show a causal nexus between the challenged practice and the absence of black employees in the work place).
Regenbogen fails to make a prima facie showing of disparate impact because he has failed to provide separate statistical evidence as to the effect of each discriminatory practice he claims and, more fundamentally because he fails to show that the 1990-91 RIF had a disproportionate impact on persons of the Jewish faith. Regenbogen's statistical expert concedes that if only layoffs are considered, there is no statistically significant evidence of discrimination against Jews in the 1991 RIF. Velleman Aff'n. at 3. Regenbogen may not combine other forms of separation with the layoff to show a discriminatory impact of the layoff. Cf Libront v. Columbus McKinnon Corp, 832 F. Supp. 597 (W.D.N.Y. 1993) (plaintiffs could not combine separations resulting from employer's voluntary early retirement plan and voluntary enhanced early severance with layoffs to show age discrimination where voluntary enhanced early retirement and voluntary enhanced early severance were assumed to be legal under the ADEA). Because plaintiff cannot show that layoffs were correlated with Jewishness in a statistically significant way, he has not made out a prima facie disparate impact case.
A fortiori, he has not made a prima facie showing that any of the specific practices he complains of -- segregation of minority and Jewish directors, discontinuance of the practice of allowing employees to live on campus, and nepotism and or subjectivity in the layoffs -- had a statistically significant impact on layoffs of the protected group. In fact, it appears that Regenbogen does not even claim that the housing policy had an impact on the layoffs. Rather, he claims that it resulted in fewer Jews being attracted to work at Willard. This action, of course, concerns plaintiffs termination, not defects in Willard's hiring policies.
Because Regenbogen has offered no proof relevant to a disparate impact theory of employment discrimination, his disparate impact claims must be dismissed.
Plaintiffs motion to amend his complaint is denied in its entirety. Defendants' motion for summary judgment is granted as to all of plaintiffs claims except his claim of disparate treatment based on religion. Defendants' motion for summary judgment on plaintiffs disparate treatment religious discrimination claim is denied.
IT IS SO ORDERED.
Dated: December 5, 1995
Syracuse, New York
ROSEMARY S. POOLER
DISTRICT COURT JUDGE