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Roggenbach v. Touro College of Osteopathic Med.

United States District Court, S.D. New York

March 13, 2014

MICHAEL MAXIMILIAN WOLFGANG ROGGENBACH, Plaintiff,
v.
TOURO COLLEGE OF OSTEOPATHIC MEDICINE, JERRY CAMMARATA, Defendants

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[Copyrighted Material Omitted]

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For Michael Maximilian Wolf Roggenbach, Plaintiff: Rick Ostrove, Leeds Brown Law PC, Carle Place, NY.

For Touro College of Osteopathic Medicine, Defendant: Paul Felix Millus, LEAD ATTORNEY, Meyer, Suozzi, English & Klein, P.C. (Garden City), Garden City, NY; Joni Haviva Kletter, Meyer, Suozzi, English & Klein, P.C(NYC), New York, NY.

For Jerry Cammarata, Defendant: Paul Felix Millus, Meyer, Suozzi, English & Klein, P.C. (Garden City), Garden City, NY.

OPINION

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OPINION & ORDER

Hon. HAROLD BAER, JR., U.S. District Judge.

Before the Court is a motion for summary judgment brought by Defendants Touro College of Osteopathic Medicine (" Touro" ) and Jerry Cammarata, the Dean of Student Affairs at Touro (collectively, " Defendants" ) against Plaintiff Michael Maximilian Wolfgang Roggenbach (" Plaintiff" ). Plaintiff alleges that Touro discriminated against him under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq., (" RHA" ), Title III of the Americans with Disabilities Act, 42 U.S.C. § 12182 et seq.,(" ADA" ), Title VI of the Civil Rights Act of 1963 (" Title VI" ), the New York State Human Rights Law, N.Y. Exec. Law § 296(4) (" NYSHRL" ), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107(4) (" NYCHRL" ). Plaintiff also brings claims against Jerry Cammarata, Touro's Dean of Student Affairs, under the NYSHRL and the NYCHRL, for aiding and abetting discrimination. For the following reasons, Defendants' motion is GRANTED.

Background[1]

Plaintiff is a 36-year-old gay male, born in the United States of German national

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origin, who has been diagnosed with Human Immunodeficiency Virus (HIV) infection. (56.1 ¶ ¶ 1, 6, 113; Ex. D, Pl. Dep. 15:2-23; 42-45.) Plaintiff was accepted into the Osteopathic Medicine program at Touro and began coursework in the fall of 2008. (56.1 ¶ ¶ 13, 21.) Notwithstanding issues with attendance and lateness and a designation of provisional academic status, Plaintiff was given several opportunities to take make-up exams and remediate failing grades throughout his time at Touro. See Ex. P, Ex. Q, Ex. T, Ex. AG (letters and notices regarding unexcused absences); see also 56.1 ¶ ¶ 34, 46, 50, 53, 62; Ex. D, Pl. Dep. at 109:4-24, 125: 23 - 126:24, Exs. V, X, AI, Y) (Plaintiff permitted to make-up exams and remediate failing grades.) Plaintiff began his clinical rotations at St. John's Episcopal Hospital (" St. John's" ) in July 2010. (Ex. D, Pl. Dep. 90: 24-25; 56.1 ¶ ¶ 65, 67.)

In September 2010, Michael Beltrami (" Beltrami" ), Plaintiff's former landlord, sent two letters to faculty at Touro and St. John's. (56. 1 ¶ ¶ 118, 122; Exs. BD, BH.) In the first letter, dated September 10, 2010, Beltrami accused Plaintiff of theft and vandalism, and alluded to Plaintiff being gay. (56. 1 ¶ ¶ 118,119, Ex. BD.) Touro Dean Robert Goldberg responded by letter that Beltrami should notify the police of any suspected criminal activity and also spoke with Beltrami by phone. (56.1 ¶ 121, Ex. BG, Ex. 3, Goldberg Dep. at 13:25-16:6.) In the second letter, dated September 27, but not mailed until October 1, Beltrami mentioned, among other things, that Plaintiff's rent was paid by " an agency for disabled HIV men and women." (56.1 ¶ 122, Ex. BH.)

On September 29 and September 30, 2010, Plaintiff was absent from his clinical rotation at St. John's. (56.1 ¶ 67, Ex. AJ.) Plaintiff claims that he sent emails and text messages to notify his supervisors and team members of his absence, and that he was permitted to miss those days, but no such notices have been located or produced, nor has any other evidence of prior permission. (Def. 56.1 ¶ ¶ 68, 69, 83; Ex. D, Pl. Dep. 214:12-215:5, Ex. AJ.) Eventually, it turned out that he had concocted an email to cover his failure to notify his supervisors of his impending absence. (Exs. AO, AP, Ex. BC, Formal Hearing Transcript, 27:11-17.) Plaintiff also signed a counseling form, acknowledging that " as of September 30, 2010, [Plaintiff was] currently absent without approved leave" from St. John's. (Ex. AK.) Plaintiff claims he signed the form under duress. (Ex. D, Pl. Dep. 223-227). On October 1, 2010, ...


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