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REGENBOGEN v. MUSTILLE

December 5, 1995

ADAM REGENBOGEN, Plaintiff,
v.
ANTHONY N. MUSTILLE, EXECUTIVE DIRECTOR, WILLARD PSYCHIATRIC CENTER, C. RICHARD ORNDOFF; WESTERN REGIONAL OMH DIRECTOR; RICHARD C. SURLES, COMMISSIONER, NYS OFFICE OF MENTAL HEALTH, Defendants.



The opinion of the court was delivered by: POOLER

 MEMORANDUM-DECISION AND ORDER

 INTRODUCTION

 Defendants Anthony Mustille, C. Richard Orndoff and Richard C. Surles move for summary judgment dismissing plaintiff Adam Regenbogen's claims of discrimination based on religion and national origin. These claims arise out of Regenbogen's termination from his job as Director of Quality Assurance ("DQA") at Willard Psychiatric Center ("Willard"), a mental hygiene facility within the New York State Office of Mental Hygiene ("OMH"). At the time of Regenbogen's termination, Surles was the commissioner of OMH, Orndoff, the western regional director, and Mustille, the facility director at Willard. Regenbogen, in turn, moves to amend his complaint to add claims that he was denied equal protection and due process, that he was discriminated against on the basis of disability, *fn1" and that defendants retaliated against him for protesting the layoff of high level female employees in his department.

 Regenbogen has alleged consistently since the time of his discharge in the course of a statewide reduction in force ("RIF") that his termination was unwise, illegal and discriminatory; however, his theory of the case has been a moving target. At various times he has alleged that he was discriminated against because he is disabled, because he was born in Austria, because he is Jewish, because he complained about the disproportionate impact of the reduction in force on minorities and because he complained about the disproportionate impact of the layoffs on women. Initially he claimed that he, as a Jew, suffered discrimination along with other minorities, but on these motions, he claims that preferences granted to those other minorities during the layoffs were unconstitutional. Because Regenbogen has demonstrated genuine issues of material fact concerning his claim that his termination was motivated by religion but not concerning any of his other claims, I grant defendants' motion for summary judgment in part and deny it in part. Because the amendments Regenbogen proposes would be futile or would substantially prejudice the defendants, his motion to amend is denied.

 BACKGROUND

 I. Procedural Background

 Regenbogen lost his job on June 26, 1991. On November 5, 1991, Regenbogen filed a charge with the New York State Division of Human Rights ("DHR") and the United States Equal Employment Opportunity Commission ("EEOC"). Regenbogen checked the boxes for discrimination based on race, retaliation, and religion on the charge form. However, he wrote in the body of the form that he believed "that the Respondent eliminated [his] position and discharged [him] because of [his] religion, Jewish." Compl. Ex. at 3. In a longer statement attached to the charge, Regenbogen made certain allegations suggestive of retaliation for complaints he had made about unfairness to minorities. Compl. Ex. at 6 PP 15-16. Regenbogen did not, however, make any allegations relevant to his claim of race discrimination.

 After the parties completed discovery, defendants moved for summary judgment. I heard oral argument on February 21, 1995. At oral argument, I granted plaintiff an opportunity to put certain unsworn submissions into sworn form.

 On April 19, 1995, I sent the parties a letter noting that Regenbogen had opposed summary judgment on several grounds not specifically identified in the complaint and granting him two weeks to move to amend his complaint. Regenbogen *fn3" has now moved to amend his complaint to add claims of retaliatory discharge, denial of equal protection and due process, and disability-based discrimination.

 II. Factual Background

 Regenbogen's submissions on the issue of discrimination fall into two general categories: allegedly discriminatory actions that affected him directly and allegedly discriminatory actions aimed at others. With respect to the second category, Regenbogen claims that he was either discriminated against for complaining about these actions or that they tend to show that defendants' motive in discharging him was discriminatory.

 A. Plaintiffs Own Experience Prior to the 1991 Reduction in Force

 Regenbogen was hired as the DQA (a deputy director level position) for Willard in August 1987. *fn4" Def. 7.1(f) Statement P 1; Pl. 7.1(f) Statement P 1. He was the only deputy director to be housed outside of the main administration building and believes that his location, in a building called Grandview, gave him less access to the facility director, defendant Mustille. Compl. P 7. Mustille explains that when the main administration building was planned, the quality assurance position was not a deputy director position and therefore no space was allocated to it. Mustille Dep. at 98-102. Both Regenbogen's predecessors and his successor, a Roman Catholic, had offices outside the main administration building. Id. ; Murphy Dep. at 53; Kwitek Dep. at 9. Regenbogen does not directly controvert Mustille's assertions but argues that by the time the main administration building was opened up in the late 1980's, the quality assurance position had director level status and therefore merited space in the main administration building. Regenbogen Dep. at 46-47. Although conceding that his successor, Richard Kwitek, uses the Grandview office when he is at Willard, Regenbogen notes that Kwitek's primary office is in Elmira where he occupies space close to the director. Pl. Rule 7.1(f) Statement at P 33. Regenbogen does not indicate that he complained to Mustille or anyone else about the location of his office.

 Regenbogen also complains that defendants scheduled governing body meetings on Jewish holidays including "the high-holy days between Rosh Hashanah and Yom Kippur and Passover, the eight-day period in Passover." Regenbogen. Dep. at 16. Regenbogen was unable to give a reliable estimate of the number of such meetings but said there "weren't very many" executive cabinet meetings attended by the regional director but other meetings were "frequently" scheduled. Id. He estimated that he missed one and perhaps two meetings at which pending layoffs were discussed. Id. at 20. Asked whether he had protested the scheduling of these meetings, Regenbogen said that he filled out a slip indicating that he was going to be off and "I'd have my secretary tell his secretary that -- for example, I can remember a couple of times saying that, if there was business that was going to be important, certainly to reschedule it." Id. at 19. In general he indicates that meetings were held even if he wasn't going to be present. Id. at 15

 B. The 1991 Reductions in Force

 In both fiscal years 1990/91 and 1991/92, budgetary concerns forced extensive layoffs and terminations in OMH. Def. 7.1(f) Statement P 6; Pl. 7.1(f) statement P 6. In February 1991, Willard reduced its work force by eliminating 101.3 positions. Feligno Aff. P 18. The RIF plan called for Willard to eliminate an additional 39 positions effective June 26, 1991. Def. 7.1(f) Statement P 9.

 Bruce Feig, executive deputy commissioner for OMH, issued guidelines for the June 1991 RIF on February 22, 1991. Orndoff Aff. P 10; Dep. Ex. 2. Feig directed the facilities to follow several policies in determining which positions to eliminate. These policies included insuring that administrative and other top level staff shared the burden of cut backs, considering the impact of the decision to eliminate a particular position on other facilities within the layoff unit, and involving affirmative action administrators in plan development to minimize the impact on protected classes. Id.

 The 1991 RIF's took place against the backdrop of ongoing discussions about consolidating Willard and Elmira Psychiatric Facilities. Orndoff Aff. P 5. Prior to the June 1991 RIF, OMH had eliminated the job of director of community services at Elmira and assigned the functional responsibility for the community services department at Elmira to the director of community services at Willard. Mustille Aff'n P 7. However, no decision had been reached at that point as to which of the two facilities would close. Id.

 Willard established a task force of administrative personnel including Regenbogen to make recommendations concerning the positions to be eliminated at Willard. Mustille Aff'n P 5. The task force -- over Regenbogen's objections -- targeted all of the positions in the Quality Assurance Department except Regenbogen's. Regenbogen Aff'n Supp. Mot. Amend PP 5-6. These positions -- all of which were administrative -- were held by two white females and a white Catholic male, John Fracchia. Id. Orndoff Dep. at 17. Another female manager, Kristina Stanko, had lost her job in the February 1991 RIF. OMH ultimately did not eliminate Fracchia's job. Feligno Dep. at 12.

 The task force made no recommendation concerning Regenbogen's position. According to Orndoff, he and the facility directors at Willard and Elmira decided that the two facilities needed only one quality assurance director and determined to eliminate Regenbogen's position rather than the position of his Roman Catholic counterpart at Elmira because although both had useful experience and had performed their duties satisfactorily, "on balance, Mr. Kwitek's longer length of service, his experience and performance made him the preferred choice." Orndoff Aff. PP 10-11. Mustille claims little recall of the conversations concerning the DQA position but indicates that Orndoff made the decision to terminate Regenbogen. Mustille Aff'n PP 6,8.

 C. Impact of the 1991 Layoffs on Jews and Other Minorities

 Regenbogen now alleges that the 1991 layoffs had a disproportionately severe impact on Jews and an impact on other minorities that was less severe than would be expected. Regenbogen initially identified four Jewish employees out of a total of five allegedly employed by Willard as adversely impacted by the 1991 layoffs: Regenbogen; Holly Meyerson, a psychiatrist; and Sam Pillar, the chief of medicine, all lost their jobs according to Regenbogen. Aaron Pines, a dentist, was not laid off but after the RIF, Pines was required to care for the patients of two facilities rather than just those at Willard. Compl. P 13(2). In an October 20, 1994, letter to defense counsel, Regenbogen amended the list to include Larry Rivkin, a pharmacist who allegedly resigned in anticipation of layoff, Amy Macey, Jerry Hersh, a consultant, and David Regenspan, a rabbi. Feligno Aff., Ex. A. Defendants submit documentary proof that Meyerson resigned on May 10, 1991, Rivkin resigned on Feb. 13, 1991, Macey resigned in 1988, Pillar resigned in 1992, Hersh was terminated effective June 14, 1989, and Regenspan resigned effective July 30, 1992. Feligno Aff. PP Ex. B, C, E, G, H and I. Regenbogen counters with an affirmation from Rivkin in which Rivkin alleges that he resigned "to save [his] sanity" and that he had repeatedly heard racial and ethnic slurs in the workplace. Rivkin Aff'n at 2. Regenbogen also alleges that Pillar, prior to his resignation, had been forced out of his position as chief of medicine; however, Regenbogen does no point to any evidence in the record in support of that allegation. Pl. Rule 7.1(f) Statement P 28. Regenbogen does not controvert OMH's account of the terminations of Hersh, Macey, Meyerson or Regenspan.

 Regenbogen's claim of a statistical disparity in the 1991 terminations rests on an affirmation from Paul Velleman, Ph.D. Velleman, a statistician, begins with factual assumptions *fn5" that of the seven Jews employed at Willard at the beginning of 1990, six were no longer employed at the end of 1991 and that of the 883 non-Jews employed at Willard at the beginning of 1990, 151 were no longer employed at the end of 1991. Velleman Aff'n at 2-3. Using these assumptions, Velleman finds that 17.1 percent of the non-Jews were separated from employment while 85.7% of the Jews were separated. Id. at 3. He suggests that the likelihood of this percentage of Jews being selected for separation independent of their Jewishness is less than two in ten thousand. Id. at 2. Velleman next turns, however, to the fact that only one Jew was actually laid off in 1991 and finds no statistically significant effect attributable to that employee's Jewishness. Id. at 3.

 Velleman also suggests in a letter *fn6" that minority employees at level G23 and above were not laid off in proportion to their numbers at those levels. Velleman Ltr. 1/18/95. Velleman assumes that the proportion of minorities at level G23 and above was 21% and that there were 64 people laid off at level G23 and above and then states that one would anticipate that 21% of those laid off or 13.4 employees would be minorities, but that in fact only one minority was laid off. *fn7" Velleman ...


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