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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 ...

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