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United States District Court, Southern District of New York

December 5, 2002


The opinion of the court was delivered by: Robert L. Carter, United States District Judge


Plaintiff Jaime Pesok commenced this action against Hebrew Union College — Jewish Institute of Religion ("Hebrew Union"), alleging race and religious discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and violation of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. Defendant now moves for summary judgment on all of plaintiff's claims pursuant to Rule 56, F.R.Civ.P.


Jaime Pesok, a Caucasian Jew, was hired as Maintenance Supervisor for Hebrew Union's New York campus in 1998. (Pesok Aff. ¶ 3; Lutwak Aff. ¶ 5.) In 1999, and again in 2000, Hebrew Union management contemplated restructuring the Maintenance Supervisor position.*fn1 (Lutwak Aff. ¶ 14; Exh. D.) On June 27, 2000, Alice Lutwak, plaintiff's direct supervisor (a Caucasian Jew), and Rabbi Aaron Panken, Lutwak's superior (also a Caucasian Jew), informed plaintiff that a restructuring would take place. (Id. at ¶ 15.)

The Supervisor would be an "exempt" employee, meaning that the position would provide an annual salary rather than an hourly wage, and there would be no overtime pay. (Id. at Exh. E.) In addition, the Supervisor would be the first one contacted when fire alarms went off on campus, and the Supervisor would be given 60 days to acquire certain fire and safety licenses. (Id.) Finally, the work shift would be 9AM to 5PM according to the initial job description prepared by Hebrew Union. (Id.) Pesok's former schedule was 7AM to 3PM. (Pl.'s Stmt. Undisputed [sic] Mat. Facts ¶ 6.)

Although Lutwak had expressed dissatisfaction with Pesok's job performance on at least two occasions prior to the restructuring,*fn2 Pesok was offered the restructured Maintenance Supervisor position. Over the approximate one week period that followed, plaintiff tried to change some terms of employment. (Lutwak Aff. ¶ 16; Exh. F.) For example, Pesok sought an 8AM to 4PM work shift, as opposed to the 9AM to 5PM shift that Lutwak wanted,*fn3 he sought more than 60 days to acquire the fire and safety licenses, and sought to delegate the responsibility of being the first contact when there were fire alarms. (Id.)

It is clear from the record that, during this period of negotiation, Lutwak was very dissatisfied with Pesok. In an e-mail written to Panken on June 30, 2000, discussing possible accommodations for Pesok, she wrote: "He is not liked by the maintenance staff, he continuously takes short cuts but I did not have a legal reason to fire him. I cannot fire somebody because he is arrogant, defient [sic] behind my back etc." (Lutwak Aff. Exh. F.)

Nevertheless, Lutwak agreed to a schedule of 8:30AM to 4:30PM and allowed Pesok to reassign the fire alarm duties to a subordinate. (Id.) Lutwak notified plaintiff of these changes to his terms of employment by memo on July 5, 2000. (Pesok Dep. Exh. 4.) Despite these changes, defendant contends (and plaintiff does not contest) that plaintiff was still dissatisfied with the position. (Lutwak Aff. ¶ 17.)

Shortly thereafter, on or about July 7, 2000, Lutwak offered the restructured Maintenance Supervisor position to Elio Cruz, who had served as de facto Maintenance Supervisor before plaintiff was hired. (Id. at ¶ 18; Exh. H.) Cruz was willing to work a 9AM to 5PM shift, ' and he already possessed all of the necessary licenses for the post. (Id. at Exh. F; Exh. I.) Lutwak drafted a letter to Pesok on July 6, 2000, explaining that Cruz would replace plaintiff as Maintenance Supervisor and plaintiff would become a maintenance staff member. (Id. at Exh. J.) She informed Pesok orally of the decision on or about the week of July 10, 2000, and the letter was sent on July 28, 2000. (Id. at ¶ 21; Pl.'s Stmt. Undisputed [sic] Mat. Facts Exh. J.)

On or about July 25, 2000, approximately two weeks after receiving oral notice of Hebrew Union's decision to withdraw its offer of the restructured Maintenance Supervisor position, Pesok left work claiming that he had injured his ankle on the job. (Pesok Dep. at 71; Lutwak Aff. ¶ 23.) On July 27, 2000, Pesok submitted a doctor's note, stating that he would be absent from work until July 31, 2000, due to an "ankle strain/sprain." (Lutwak Aff. Exh. L.) On August 3, 2000, Pesok submitted a second doctor's note stating that he would be absent from work for two more weeks (i.e., through August 16) due to the "[a]nkle sprain/strain." (Lutwak Aff. Exh. M.) Rather than taking unpaid medical leave for two weeks, Pesok decided to use paid vacation days through August 18, 2000. (Pesok Dep. at 88, 91.)

Pesok was scheduled to return to work on Monday, August 21, 2000, but did not report to work or contact defendant. (Lutwak Aff. ¶ 27; Exh. O.) On August 23, 2000, the third day of no contact from plaintiff, Lutwak deemed plaintiff's failure to return to work a resignation, pursuant to Hebrew Union's Personnel Handbook, which states "[t]he following may also be considered resignation: (a) if an employee is absent for 3 consecutive days without notifying his/her supervisor . . . ." (Id. at ¶ 29; Exh. A.; Exh. P.)

On August 25, 2000, Lutwak drafted a letter confirming Pesok's resignation and circulated it via e-mail for revision and approval. (Id. at Exh. P.) On August 28, 2000, before the letter confirming Pesok's resignation was mailed, Hebrew Union received a faxed doctor's note stating that Pesok would be absent from work until his next doctor's evaluation due to a herniated lumbar disc. (Id. at Exh. Q.) Thereafter, Pesok received Lutwak's letter, notifying him that Hebrew Union considered him resigned as of August 21, 2000, his first missed day of work. (Id. at Exh. P; Pl.'s Stmt. Undisputed [sic] Mat. Facts ¶ 16.)


I. Summary Judgment Standard

Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56, F.R.Civ.P. In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). Nevertheless, the moving party will be entitled to judgment as a matter of law where the nonmoving party fails to make a significant showing on an essential element of his case with respect to which he has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The party opposing summary judgment "may not rest upon mere allegations," rather he must "set forth specific facts showing that there is a genuine issue for trial." Rule 56(e), F.R.Civ.P.

II. Title VII Claims

In bringing a case under Title VII, plaintiff bears the initial burden of making out a prima facie case of discrimination. James v. New York Racing Ass'n, 233 F.3d 149, 153 (2d Cir. 2000) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). In order to establish a prima facie case, plaintiff must show: 1) membership in a protected class; 2) that he was qualified for the position; 3) that he suffered an adverse employment action; and 4) a preference for a person not of the protected class. Id. at 153-54. Alternatively, the fourth element may be shown either by demonstrating that the adverse action occurred under circumstances giving rise to an inference of unlawful discrimination, or by showing that the position was ultimately filled by an individual who is not a member of the protected class. Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001) (citations omitted).

If a plaintiff succeeds in establishing a prima facie case, a presumption of discrimination is created and the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action. Farias, 259 F.3d at 98. Once the defendant has articulated a legitimate, non-discriminatory reason for the adverse employment action, the presumption of discrimination drops out of the analysis, and the defendant "will be entitled to summary judgment. . .unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." Id. (citing James, 233 F.3d at 154).

A. Plaintiff's Alleged Demotion

Pesok claims that Lutwak restructured the Maintenance Supervisor position in an effort to give this post to Elio Cruz, a non-Jewish Hispanic, and demote Pesok to a non-supervisory position. (Pl. Mem. Opp. Def.'s Mot. Dismiss [sic] at 5.) Defendant responds that the supervisory position that Pesok occupied was restructured for several legitimate reasons, and when Pesok refused to accept the hours and other terms of the new supervisory position, defendant placed someone else in that post.

Plaintiff alleges discrimination on the bases of religion and race. As a Jew, Pesok is a member of a protected class on the basis of his religion. See Meiri v. Dacon, 759 F.2d 989 (2d Cir. 1985). As a Caucasian, Pesok is protected from discrimination on the basis of race. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976) (holding that Title VII prohibits racial discrimination against whites upon the same standards as racial discrimination against non-whites).

Despite the holding of McDonald, courts in the Second Circuit have disagreed as to whether white plaintiffs have a heightened burden of proof where reverse discrimination is alleged, as it is here. Compare, e.g., Olenick v. New York Tel., 881 F. Supp. 113, 114 (S.D.N.Y. 1995) (Knapp, J.) (holding that a non-minority plaintiff must allege that "defendant is that 'unusual employer who discriminates against the majority'") with Cully v. Milliman & Robertson, Inc., 20 F. Supp.2d 636, 640-41 (S.D.N.Y. 1998) (Motley, J.) (rejecting Olenick and holding that based on McDonald, which states that Title VII "proscribes racial discrimination . . . against whites on the same terms as racial discrimination against non-whites," a white plaintiff does not have to fulfill a higher prima facie burden). Most of the recent decisions of this court have rejected a heightened burden for white plaintiffs. See Tappe v. Alliance Capital Mgmt. L.P., 177 F. Supp.2d 176, 181-83 (S.D.N.Y. 2001) (Scheindlin, J.); DiLegge v. Gleason, 131 F. Supp.2d 520, 523 (S.D.N.Y. 2001) (Brieant, J.); Berkowitz v. County of Orange, 120 F. Supp.2d 386, 397 (S.D.N.Y. 2000) (Conner, J.).

Also informative is the Second Circuit's recent holding in the case of McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001). In that case, a white woman established a prima facie case of discrimination based on race and gender by presenting evidence showing that she was white and female, she was qualified, and she was offered a less desirable severance package than a black male employee. Id. The Second Circuit did not find it significant that a white plaintiff was bringing a race discrimination suit, nor did it require McGuinness to satisfy a heightened burden of proof to establish a prima facie case of race discrimination. See id Tappe, 177 F. Supp.2d at 182.

Based on the holdings of McDonald and McGuinness, and the opinions of this court rejecting a heightened burden of proof for white plaintiffs, the court holds that Pesok's burden of proof for his reverse discrimination claim is the same as that for his religious discrimination claim. Pesok satisfies the first element of his prima facie case with respect to each of these claims.

Pesok also establishes the second, third, and fourth elements of a prima facie case. He was apparently qualified for the restructured Maintenance Supervisor position, as evidenced by Hebrew Union offering him the job. He suffered an adverse employment action, in that he was transferred to a non-supervisory position with lower pay and a probationary period. (Pesok Dep. Exh. 6.) Finally, Pesok satisfies the fourth element of his prima facie case because he was replaced by Cruz, who is a non-Jewish, non-white Hispanic, and is therefore not a member of Pesok's relevant protected classes. See Zimmermann v. Associates First Capital Corp., 251 F.3d 376, 380 (2d Cir. 2001) ("the mere fact that a plaintiff was replaced by someone outside the [relevant] protected class will suffice for the required inference of discrimination at the prima facie stage of the Title VII analysis.") (citations omitted).

As Pesok has presented a prima facie case, the burden shifts to Hebrew Union to articulate a legitimate, non-discriminatory reason for removing Pesok from the Maintenance Supervisor position. Hebrew Union claims that after restructuring the Maintenance Supervisor position for several legitimate reasons and offering this job to plaintiff, it withdrew its offer because plaintiff would not agree to the terms of employment. (Def.'s Mem. Supp. Summ. J. at 5-6.) Having met its burden of production, Hebrew Union is entitled to summary judgment unless plaintiff can point to evidence that reasonably supports a finding of discrimination. Farias, 259 F.3d at 98 (citing James, 233 F.3d at 154).

This Pesok fails to do. Though Pesok's memorandum of law asserts that defendant's explanation is a pretext for discrimination, Pesok presents no evidence to support this statement. It is clear from the record that, rather than wanting to remove plaintiff from the supervisor position, Hebrew Union planned all along to place Pesok in the restructured Maintenance Supervisor position,*fn4 that Lutwak offered the position to Pesok, and even conceded certain terms of employment to try to accommodate Pesok on some issues. Only after making these efforts did Hebrew Union offer the job to Cruz.

Under these circumstances, plaintiff's bald allegations of discrimination are insufficient to survive summary judgment.*fn5 See Rule 56(e), Fed.R. Civ. P.; Meiri, 759 F.2d at 998 (2d Cir. 1985). Accordingly, defendant's motion for summary judgment is granted with respect to this claim.

B. Plaintiff's Alleged Termination

Pesok claims that Hebrew Union terminated him while he was out of work due to an injury, and in doing so, treated him differently from non-white, non-Jewish employees, who were granted medical leave liberally. (Pl.'s Mem. Opp. Mot. Dismiss [sic] at 7.) Hebrew Union claims that it considered Pesok to have abandoned his job after he did not call or report to work for three days after his vacation ended, in accordance with Hebrew Union's written policy.*fn6

Pesok has not established a prima facie case of discriminatory termination. Though he is protected under Title VII from discrimination based upon race and religion, as discussed above, Pesok has not shown that he was a qualified employee or that the employment action occurred under circumstances giving rise to an inference of discrimination.

Pesok was unable to work due to his back problem when his employment at Hebrew Union ended, and he has been unable to work ever since. (Pesok Dep. at 95-96.) Thus, plaintiff was not qualified for the position in question and cannot establish the second element of his prima facie case. See Williams v. R.H. Donnelley, Inc., 199 F. Supp.2d 172, 177 (S.D.N.Y. 2002) (Conner, J.) (plaintiff who was totally disabled was unable to perform job and therefore failed to satisfy second prong of Title VII prima facie case).

In addition, although Pesok suffered an adverse employment action,*fn7 he has not shown that Hebrew Union's application of its resignation policy occurred under circumstances giving rise to an inference of discrimination. Though it appears that Lutwak wanted to fire Pesok after Pesok did not accept the terms of the restructured position, the record shows nondiscriminatory reasons for this: Lutwak was dissatisfied with Pesok's performance and thought he was arrogant and defiant.

Personal animosity and even unfair treatment are not actionable under Title VII unless discrimination is a motivating factor. See, e.g., Terry v. United States, 98 Civ. 8249, 2000 WL 204522, at *12 (S.D.N.Y. Feb. 18, 2000) (Buchwald, J.); Brown v. Time, Inc., No. 95 Civ. 10081, 1997 WL 231143, at *12 (S.D.N.Y. May 7, 1997) (Mukasey, J.); Viruet v. Citizen Advice Bureau, 01 Civ. 4594, 2002 WL 1880731, at *16 (S.D.N.Y. Aug. 15 2002) (Peck, M.J.) (cataloging cases).

Plaintiff has not shown that discrimination was a motivating factor behind Lutwak's decision. Pesok claims that similarly situated employees who were non-white and non-Jewish were treated more favorably, but he has presented absolutely no evidence that Hebrew Union selectively applied its resignation policy to favor non-Jews or non-whites. See Shumway v. United Parcel Svc., Inc., 118 F.3d 60, 64-65 (2d Cir. 1997) (plaintiff did not satisfy fourth element of prima facie case because she failed to show that she was treated differently than persons outside the relevant protected class); Adeniji v. Admin. for Children Svcs., 43 F. Supp.2d 407, 425-26 (S.D.N.Y. 1999) (Wood, J.), aff'd, 201 F.3d 430 (2d Cir. 1999) (same); cf. Alfano v. Costello, 294 F.3d 365, 375 (2d Cir. 2002).

Nor has Pesok demonstrated the existence of any discriminatory animus (e.g., through derogatory comments or conduct) of any decisionmakers during his employment at Hebrew Union. See Reiter v. Metropolitan Transp. Auth. of the State of New York, MTA, No. 01 Civ. 2762, 2002 WL 31190167 (S.D.N.Y. Sept. 30, 2002) (Koeltl, J.) (plaintiff failed to meet fourth element of prima facie case where plaintiff put forth no factual allegation or evidence of discriminatory animus); Shabazz v. Montefiore Med. Ctr., No. 99 Civ. 4311, 2002 WL 31132886, at *2 (S.D.N.Y Sept. 26, 2002) (Jones, J.) (plaintiff failed to meet fourth element of prima facie case by failing to produce "any direct evidence or statistical evidence or circumstantial evidence that raises an inference of discrimination"); Kalsi v. New York City Transit Auth., 62 F. Supp.2d 745, 754-55 (E.D.N.Y. 1998) (same). In fact, Pesok himself does not believe that Hebrew Union's actions were motivated by his race or religion, but rather by discrimination against him as a "human being."*fn8 Cf. Mendoza v. SSC & B Lintas, New York, 913 F. Supp. 295, 301 (S.D.N.Y. 1996) (Sweet, J.) (plaintiff did not establish a prima facie case of discrimination in part because he admitted that he was aware of no basis for his discrimination claim).

Plaintiff's mere unsubstantiated assertion of discrimination is inadequate to show circumstances giving rise to an inference of discrimination. Norton v. Sam's Club, 145 F.3d 114, 119 (2d Cir. 1998) ("a jury cannot infer discrimination from thin air"). As the Second Circuit has stated, "[t]o allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all Title VII cases." Meiri, 759 F.2d at 998. Summary judgment is therefore granted with respect to this claim.

III. Family and Medical Leave Act Claim

Pesok claims that he was entitled to FMLA leave because of a back injury that presented itself while he was out of work due to a sprained ankle. He alleges that he was denied this leave despite the fact that he "repeatedly requested medical leave in person and via telephone." (Pl.'s Mem. Opp. Mot. Dismiss [sic] at 11.)

To state a valid claim under the FMLA, Pesok must plead facts showing that 1) he was an eligible employee under the FMLA; 2) Hebrew Union is a covered employer, 3) he was entitled to leave; and 4) he gave adequate notice to Hebrew Union of his intention to take leave. Slaughter v. Am. Bldg. Maint. Co. of New York, 64 F. Supp.2d 319, 324 (S.D.N.Y. 1999) (Sweet, J.). Here, plaintiff has not established a prima facie case because he has not met his burden of proof with respect to any element of his FMLA claim.

Pesok lost his job pursuant to Hebrew Union employment policy on August 23, 2000, because he failed to report to work or contact his supervisor for three days after his paid vacation ended. When plaintiff finally gave notice of his back condition on August 28, 2000, he was no longer employed by Hebrew Union. Plaintiff has therefore failed to show that he was an eligible employee entitled to leave, the first and third elements of his prima facie case.*fn9

In addition, Pesok has not alleged facts to show that Hebrew Union is a covered employer under the FMLA. The statute defines "employer" as "any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year." 29 U.S.C. § 2611(4) (2002). While Hebrew Union may be a covered employer, plaintiff has not alleged any facts with regard to this issue, and has therefore failed to meet his burden of proof on this essential element of his claim.

Finally, as alluded to above, Pesok has failed to show that he gave adequate notice to Hebrew Union of his intention to take leave. Where a qualifying reason for FMLA leave is unforeseeable, the FMLA requires that an employee notify his or her employer "as soon as practicable." Slaughter, 64 F. Supp.2d at 325 (citing 29 C.F.R. § 825.303(a)). The Department of Labor's regulations interpret this language to mean "as soon as practicable under the facts and circumstances of the particular case" and the regulations further explain that "[i] t is expected that an employee will give notice to the employer within no more than one to two working days of learning the need for leave, except in extraordinary circumstances where such notice is not feasible." Id. This does not necessarily require letting an employer know of the need for leave in advance, but simply obligates an employee to inform his or her employer "as soon as [the employee] [i]s reasonably able." Id. at 327.

Defendant is not liable for failure to grant Pesok additional leave after his vacation ended because Pesok has not shown that he provided defendant with timely notice of the need for additional leave. Pesok did not notify Hebrew Union that he had a back problem until August 28, 2000, one full work week after he was supposed to return to work. As plaintiff has presented no evidence that he was unable to contact Hebrew Union prior to August 28, 2000, he has failed to demonstrate that his notice was adequate under the circumstances. See id. at 329 (notice inadequate where employee gave notice three days after he stopped reporting for work, and nothing in record indicated extraordinary circumstances preventing employee from contacting employer earlier).*fn10

Pesok has failed to establish a prima facie case under the FMLA. Accordingly, Hebrew Union is entitled to judgment as a matter of law.


Plaintiff fails to state any claim upon which relief may be granted. Defendant's motion for summary judgment is granted in its entirety and plaintiff's suit is dismissed.


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