JOAN M. AZRACK, Magistrate Judge.
On July 16, 2008, plaintiff Joseph Gray filed this action against the City of New York ("City"), the City of New York Department of Education ("DOE"), and Jerod Resnick, in his individual capacity (collectively "defendants"). Compl., ECF No. 1. Plaintiff alleges race discrimination and retaliation in violation of 42 U.S.C. § 1981 and the Equal Protection Clause of the Fourteenth Amendment. Second Am. Compl., ECF No. 27. Defendants have filed a motion for summary judgment and the parties have consented to have me rule on the motion. ECF Nos. 35, 46, 54. For the reasons explained below, the motion is granted.
Plaintiff's primary discrimination and retaliation claims concern the termination of his employment as a teacher after he allegedly attended a school dance while intoxicated and attempted to dance with a student. Those claims are utterly meritless. As discussed below, plaintiff's misconduct at the dance was reported by multiple sources and was substantiated after an independent investigation.
Plaintiff was employed as a teacher by the DOE from 2001 through August 2005. Defs.' Rule 56.1 Statement ("Defs.' 56.1") ¶ 3, ECF No. 47
Plaintiff had a "Performing Arts Radio" license pursuant to which he was licensed to teach video production. Pl.'s Ex. 31; Gray Aff. ¶ 2. After plaintiff was hired as a substitute, he taught photography, which he was teaching when Resnick began working at HSGCA in February 2003. Defs.' 56.1 ¶ 8(b); Gray Dep. 26-28; Pl.'s Exs. 1-4. Plaintiff maintains that when he became a full-time probationary teacher, he was hired to fill the photography position left vacant by a retiring teacher. Gray Dep. 28. However, at some point during 2003-2004 school year (most likely at the beginning of the year), plaintiff was assigned to teach health and hygiene. Defs.' 56.1 ¶ 8(b); Gray Dep. 26-27. Plaintiff taught health and hygiene during the first semester of the 2003-2004 school year and then taught at least one photography class during the second half of that school year.
From the beginning of his employment through the end of the 2003-2004 school year, plaintiff received satisfactory evaluations and observation reports, including a satisfactory annual evaluation in June 2004 signed by Resnick. Pl.'s Ex. 10; Gray Aff. ¶ 3. In 2003, Resnick also sent two letters to plaintiff thanking him for participating in after-school activities such as the school dance. Pl.'s Exs. 5-6. In April 2004, plaintiff was accused of corporal punishment for calling a student "stupid." Defs.' Ex. O. Resnick, however, found the charge to be unsubstantiated.
For the 2004-2005 school year, Nancy Opitz, a white female who had been a student teacher at HSGCA the prior year, was hired by Resnick and assigned to teach photography classes. Defs.' Reply Ex. B; Dep. of Jerod Resnick ("Resnick Dep.") 34, Pl.'s Ex. 28; Gray Aff. ¶ 6; Gray Dep. 18. Unlike plaintiff, Opitz had a photography license. Resnick Dep. 34. According to Resnick, it is "preferable" that teachers be licensed for the specific classes that they teach. Resnick Dep. 37. Both New York State and New York City "push[ed] principals" to ensure that all teachers possessed licenses for the classes they taught.
The same year that Opitz was hired, plaintiff was "excessed" and placed in the Absent Teacher Reserve ("ATR").
Teachers are usually placed in the ATR when a school has excess staff due to reductions in enrollment or funding. Resnick Dep. 48. Both tenured and probationary teachers can be placed in the ATR.
Placement in the ATR relegated plaintiff to serving as a full-time substitute. Resnick Dep. 28; Gray Aff. ¶ 7. Once he was placed in the ATR, plaintiff was assigned to different classes, Pl.'s Ex. 12, and no longer taught any photography classes full-time. Being placed in the ATR did not decrease plaintiff's salary or benefits. Gray Dep. 20. Plaintiff, however, maintains that the ATR placement "took [him] off the tenure track." Gray Aff. ¶ 7.
According to Resnick, plaintiff was excessed and placed in the ATR because there were not enough video production classes to warrant hiring plaintiff as a full-time teacher. Resnick Dep. 41, 44, 46. At the time, the school only had two video classes; those classes were assigned to Elizabeth Torres, who is not African-American.
There is a factual dispute as to whether Torres' photography license covered the video classes that she taught. At his deposition, Resnick testified that Torres was teaching in her license area. Resnick Dep. 39. However, his testimony was somewhat equivocal when he was directly asked if video classes were within Torres' license area.
At some point after Opitz was hired, plaintiff asked Resnick why the photography classes were given to a white and inexperienced teacher. Gray Dep. 31; Gray Aff. ¶ 9. Plaintiff, however, does not identify when he raised this issue with Resnick.
After an allegation of corporal punishment was raised against plaintiff stemming from an incident on October 27, 2004, plaintiff submitted a statement detailing his version of the events. Pl.'s Ex. 11;
On November 8, 2004, Resnick issued plaintiff a letter criticizing plaintiff's conduct and sustaining the allegation of corporal punishment against him. Pl.'s Ex. 12. The letter's factual account of the incident largely tracks plaintiff's version of events.
On March 18, 2005, plaintiff was involved in another incident with a student during school hours that resulted in a sustained charge of corporal punishment. Defs.' Ex. M (March 28, 2005, letter from Resnick to plaintiff). When plaintiff attempted to discipline a disruptive student, the student challenged him to a fight.
Other than noting that the student became aggressive and violent towards him, plaintiff does not dispute the underlying facts outlined in Resnick's March 28, 2005, letter. Gray Aff. ¶ 19. Plaintiff simply insists that he tried to defuse the situation by making a joke.
The school held a dance on the night of Friday March 18, 2005. Although Resnick did not attend the dance, on Monday, Resnick was informed by either Mercado or Dean Sandra Calderon that plaintiff showed up at the dance drunk. Resnick Dep. 9-10. Resnick also learned that a student ("Student A") had complained that plaintiff had asked her to dance and then took pictures of her.
Within a few days of the dance, Student A, Calderon, and Michael Harmon, a school aide, all submitted written statements. Calderon's statement indicates that at the dance she observed plaintiff "stumbling across the lobby." Pl.'s Ex. 16;
On March 24, 2005, Santiago Taveras, the Superintendent responsible for HSGCA, sought to remove plaintiff from HSGCA and to have him reassigned to a regional office after SCI investigators informed Taveras that they had substantiated the allegations against plaintiff. Pl.'s Ex. 19 (e-mail from Taveras to Resnick and other school officials). As discussed
On May 6, 2005, plaintiff's attorney sent a letter to an SCI investigator asserting, inter alia, that plaintiff had a claim of "racially discriminatory treatment." Pl.'s Ex. 21. Plaintiff's attorney requested that a copy of the letter be placed in "the case file."
On June 15, 2005, SCI issued a report summarizing its investigation into the March 18, 2005, dance. Pl.'s Ex. 22. During the investigation, SCI either interviewed or received statements from Mercado, Calderon, Harmon, and Student A.
When investigators interviewed plaintiff, he admitted that, after the school day had ended, he went to a bar/restaurant near the school and had food, a beer, and "a couple" of margaritas.
The SCI report only summarized the results of the investigation and did not contain any disciplinary recommendations.
On June 16, 2005, Theresa Europe, a lawyer for the DOE, forwarded the SCI report to Resnick. Pl.'s Ex. 23; Resnick Dep. 52. Europe recommended that, if Resnick believed plaintiff was intoxicated, he should offer plaintiff the opportunity to settle the matter by admitting that he acted inappropriately and paying a monetary fine. Pl.'s Ex. 23. Europe believed that no further action would be necessary if plaintiff accepted this offer.
After meeting with plaintiff on June 21, 2005, Resnick issued plaintiff a letter on June 27, 2005, indicating that plaintiff's misconduct at the dance was "inappropriate and inexcusable," and could lead to an unsatisfactory rating and termination. Pl.'s Exs. 24, 26. In addition to reviewing the SCI report, Resnick also conducted his own investigation into the matter, interviewing Mercado, Calderon, Harmon, and Student A. Resnick Dep. 16. According to the letter, Resnick's investigation revealed that plaintiff was intoxicated, asked Student A to dance, and then followed her onto the dance floor and took pictures of her. Pl.'s Ex. 26;
Resnick's June 27 letter also states that, during his meeting with plaintiff, plaintiff denied that he was intoxicated and insisted that he only had two drinks. Pl.'s Ex. 26;
On June 29, Resnick completed plaintiff's annual review and gave plaintiff an unsatisfactory rating. Pl.'s Ex. 25. In justifying that rating, Resnick cited to the two corporal punishment incidents as well as the SCI report and his own investigation into plaintiff's conduct at the March 18 dance.
On August 9, 2005, Taveras affirmed Resnick's recommendation to terminate plaintiff's probationary employment.
Plaintiff filed the instant suit on July 16, 2008, alleging that: (1) defendants subjected him to race discrimination and retaliation in violation of the Equal Protection Clause and 42 U.S.C. § 1981; and (2) that his placement on the ineligible list violated the Due Process Clause of the Fourteenth Amendment. Defendants moved to dismiss plaintiff's equal protection and due process claims brought under 42 U.S.C. § 1983, but did not seek to dismiss plaintiff's § 1981 claims. In an opinion dated September 24, 2009, Judge Nicholas G. Garaufis granted the motion in part and denied it in part. ECF No. 25 ("Opinion"). Judge Garaufis held, inter alia, that: (1) plaintiff failed to allege sufficient facts to state a due process claim; (2) plaintiff's retaliation claims were not cognizable under the Equal Protection Clause; and (3) with the exception of plaintiff's claims related to the two corporal punishment letters, all of plaintiff's equal protection claims regarding incidents that occurred prior to July 16, 2005, were barred by the three-year statute of limitations applicable to § 1983 claims brought in New York.
Plaintiff's most recent complaint abandons the due process claim and the equal protection retaliation claims. Second Am. Compl. Plaintiff, however, continues to pursue discrimination claims under both § 1981 and § 1983 (equal protection) as well as a retaliation claim under § 1981.
The Court notes that plaintiff does not contend that anyone other than Resnick and Mercado discriminated against him. Gray Dep. 17. In addition, plaintiff's papers suggest that Resnick is the only individual who retaliated against him.
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "An issue of fact is `material' for these purposes if it `might affect the outcome of the suit under the governing law,'" while "[a]n issue of fact is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'"
Defendants argue that the City is not a proper party because the DOE and the City are separate entities and plaintiff was employed by the DOE, not the City. Plaintiff does not respond to this argument and has, thus, abandoned all of his claims against the City. Therefore, summary judgment is granted as to all of plaintiff's claims against the City. Plaintiff's only remaining claims are his discrimination and retaliation claims against the DOE and Resnick.
Defendants argue that the only timely claims raised by plaintiff concern plaintiff's termination and placement on the ineligible list. Plaintiff does not respond to defendants' statute of limitations argument.
As Judge Garaufis previously held, plaintiff's equal protection claims brought under § 1983 are subject to a three-year statute of limitations. Opinion at 6;
Citing
The parties agree that plaintiff's equal protection and § 1981 claims are governed by the same substantive standards and burden-shifting framework employed in cases under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII").
Title VII discrimination and retaliation claims are analyzed under the three-step burden-shifting framework established in
To establish a prima facie case of discrimination, plaintiff must show that he: (1) belonged to a protected class; (2) was qualified for the position; (3) suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.
In order to establish a prima facie case of retaliation, plaintiff must show: (1) that he participated in a protected activity that was known to the defendant; (2) he suffered an adverse employment action; and (3) that a causal connection exists between the protected activity and the adverse employment action.
Plaintiff's discrimination claims, which turn on his attempts to compare himself to Opitz and Torres, cannot survive summary judgment because plaintiff had neither Opitz's photography license nor Torres' seniority.
Only the third and fourth elements of plaintiff's prima facie case are in dispute.
"A plaintiff sustains an adverse employment action if he or she endures a `materially adverse change' in the terms and conditions of employment."
The parties do not dispute that the termination of plaintiff's employment and his placement on the ineligible list are adverse actions. Defendants, however, contend that all of the other actions mentioned in plaintiff's complaint, ranging from plaintiff's placement in the ATR to the two findings of corporal punishment, fail to qualify as adverse actions. Plaintiff's only response is that his placement in the ATR qualifies as an adverse action because this "t[ook] him off the tenure track" and involved a "diminution of status." Pl.'s Mem. in Opp. to Defs.' Mot. for Summ. J. ("Pl.'s Br.") at 9, ECF No. 52. As such, plaintiff concedes that the other actions in dispute do not rise to the level of adverse actions.
For the purposes of deciding the instant motion, the Court assumes that plaintiff's placement in the ATR qualifies as an adverse action. Although it appears that the ATR placement did not, in fact, remove plaintiff from "the tenure track,"
Plaintiff suggests that an inference of discriminatory intent arises because Resnick: (1) treated him differently than Torres, who plaintiff contends was similarly situated; and (2) replaced plaintiff with Opitz, a white teacher with less experience. However, as explained below, plaintiff has failed to establish that the ATR placement occurred under circumstances giving rise to an inference of discrimination. As such, plaintiff cannot establish a prima facie case, or, for that matter, meet his ultimate burden of establishing that the actions at issue were motivated by his race.
Plaintiff contends that he has established a prima face case based on the fact that Torres, who was also teaching outside of her license, was not placed in the ATR. Pl.'s Br. at 11-12. "A plaintiff may raise . . . an inference [of discrimination] by showing that the employer subjected him to disparate treatment, that is, treated him less favorably than a similarly situated employee outside his protected group."
The Court also notes that the fact that a "plaintiff was replaced by someone outside the protected class will suffice for the required inference of discrimination at the prima facie stage of the Title VII analysis."
According to Resnick, plaintiff was placed in the ATR because there were not enough video production classes to warrant hiring plaintiff as a full-time teacher.
Plaintiff cannot show that Resnick's proffered reason for placing plaintiff in the ATR was a pretext for discrimination.
As an initial matter, the Court assumes arguendo that Resnick's hiring of Opitz and assignment of photography classes to her were linked to Resnick's decision to place plaintiff in the ATR. However, plaintiff's argument that Opitz was less experienced than plaintiff fails to show that Resnick's reason for placing plaintiff in the ATR was pretextual or that Resnick's actions were discriminatory. Opitz had a photography license and Resnick testified that New York State and New York City "push[ed] principals" to have teachers teaching within their license areas. Thus, because only Opitz had a photography license, the fact that she had less experience than plaintiff teaching photography classes does not, as plaintiff suggests, establish that he was more qualified than her to teach those classes.
Plaintiff also maintains that the fact that Torres was not also placed in the ATR is evidence of discrimination because she and plaintiff were both teaching classes outside of their licenses and were, therefore, similarly situated.
Ultimately, plaintiff has failed to establish that Torres was similarly situated to him in "all material respects." Admittedly, defendants have not clearly identified the role seniority plays in ATR placement decisions. Resnick, however, did testify that a teacher can challenge placement in the ATR by establishing that someone with the same license and less seniority was not excessed. Resnick Dep. 49. Although this testimony is not directly applicable to the instant case given that plaintiff and Torres did not have the same license, Resnick's testimony indicates that seniority is a material factor in determining ATR placements. More importantly, plaintiff bears: (1) the burden of showing that he and Torres were similarly situated; and (2) the ultimate burden of proving discrimination. It is therefore not enough for plaintiff to point to the bare fact that Torres was also teaching outside of her license area and was not placed in the ATR. Plaintiff must offer evidence indicating that, for the purposes of ATR placement, Torres was similarly situated to plaintiff in all material respects. It is plaintiff's burden to establish that Torres was similarly situated despite her seniority; he has failed to do so.
Plaintiff also argues that Resnick's justification for the ATR placement—that there were not enough video production classes to warrant hiring plaintiff as a full-time teacher—is "flimsy" because plaintiff had been teaching photography classes, not video classes. Pl.'s Br. at 11. However, the fact that plaintiff had previously taught photography classes outside of his license area does not undermine Resnick's reason for the ATR placement because only the video classes discussed by Resnick were within plaintiff's license area.
Other than the evidence discussed above relating to the assignment of photography classes and plaintiff's placement in the ATR, plaintiff does not offer any additional support for his claims that the other actions taken against him, including his termination, were discriminatory. Therefore, given that plaintiff's discrimination claims concerning the assignment of photography classes and the ATR placement cannot survive summary judgment, all of plaintiff's other discrimination claims also necessarily fail.
Plaintiff's retaliation claims fail because there is no evidence undermining the reasons for the two corporal punishment letters or for plaintiff's termination. Plaintiff's suggestion that Resnick's decisions concerning those actions were unreasonable in light of the evidence before him is meritless. Moreover, plaintiff cannot even establish a prima facie case of retaliation based on the May 6, 2005, letter because Resnick, the alleged retaliator, was not even aware of the letter.
"In addition to protecting the filing of formal charges of discrimination, [Title VII] protects as well informal protests of discriminatory employment practices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of co-workers who have filed formal charges."
Although defendants do not dispute that the May 6, 2005, letter from plaintiff's counsel to the SCI investigator meets this standard, defendants do challenge plaintiff's questioning of Resnick as to why the photography classes were given to a white and inexperienced teacher. According to defendants, plaintiff's comment does not qualify as protected activity because he never complained that he was denied the classes because of his race. However, the Court assumes that, viewed in the light most favorable to plaintiff, a jury could conclude that Resnick "understood, or could reasonably have understood" plaintiff's inquiry to be a complaint of racial discrimination given plaintiff's explicit reference to Opitz's race.
In the retaliation context, an action constitutes an adverse employment action if the action "could well dissuade a reasonable worker from making or supporting a charge of discrimination."
Plaintiff argues that, in addition to his termination and placement on the ineligible list, the 2004 corporal punishment letters also constitute adverse actions. Defendants do not argue to the contrary.
The final element of a prima facie case of retaliation is a causal link between the protected activity and the adverse action.
The Second Circuit has "not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a [causal connection]."
As an initial matter, the Court notes that plaintiff does not indicate when he questioned Resnick regarding Opitz. The Court, however, assumes that this took place sometime during September or October 2004.
Defendants, however, contend that the negative consequences stemming from plaintiff's conduct at the March 18, 2005, dance, including his March 28, 2005, reassignment to the regional office and June 27, 2005, unsatisfactory review, were too temporally remote from the 2004 complaint to create a causal connection. Although the gap of over four months between the 2004 complaint and the above actions would, absent other evidence, preclude any causal connection, defendants ignore the November 8, 2004, corporal punishment letter. As noted above, there is a close temporal proximity between that letter and the 2004 complaint. If plaintiff could establish that Resnick issued the November 8 letter in retaliation for the 2004 complaint, it may be possible for a jury to infer a causal connection between the 2004 complaint and the actions taken against plaintiff in the spring and summer of 2005. As such, for the purposes of plaintiff's prima facie case, the Court assumes that there is a causal connection between the 2004 complaint and the actions taken against plaintiff in 2005.
Before moving to the next stage of the McDonnell Douglas framework, the Court notes that, in addition to relying on the 2004 complaint, plaintiff also contends that there is a causal connection between the May 6, 2005, letter to the SCI investigator and the subsequent actions taken against plaintiff in June and August of 2005. Plaintiff, however, cannot establish any causal connection between those actions and the May 6 letter.
Critically, there is no evidence in the record from which it could be inferred that Resnick, the relevant decision-maker, had any knowledge of the May 6, 2005, letter. Thus, Resnick could not have possibly retaliated against plaintiff for complaining of discrimination in the May 6 letter.
In addition, the temporal proximity between the May 6 letter and the subsequent actions taken against plaintiff is insufficient to suggest retaliation because those actions were merely the culmination of a logical sequence of disciplinary measures that began prior to the May 6 letter.
Finally, plaintiff argues that the May 6 letter was the "only `event' that occurred between the `investigation' and Resnick's eventual decision to terminate plaintiff." Pl.'s Br. at 13. That argument, however, makes little sense given that the formal SCI report was issued during this period.
Plaintiff is simply unable to establish a causal connection between the May 6 letter and any of the subsequent actions taken against him.
According to Resnick, plaintiff's conduct warranted the two corporal punishment letters. In addition, Resnick maintains that he gave plaintiff an unsatisfactory rating based on the SCI report, Resnick's own investigation into the dance, and the two corporal punishment letters.
After a defendant offers its non-discriminatory reason for an adverse action, a plaintiff "may attempt to establish that he was the victim of intentional discrimination `by showing that the employer's proffered explanation is unworthy of credence.'"
It must be stressed that in discrimination and retaliation cases, "we are decidedly not interested in the truth of the allegations against plaintiff. We are interested in what `motivated the employer,'. . . the factual validity of the underlying imputation against the employee is not at issue."
"Evidence that an employer made a poor business judgment in discharging an employee generally is insufficient to establish a genuine issue of fact as to the credibility of the employer's reasons."
Finally, it must be noted that although temporal proximity alone may be sufficient to establish a prima facie case of retaliation, the Second Circuit has recently held that "without more, such temporal proximity is insufficient to satisfy [plaintiff's] burden to bring forward some evidence of pretext."
Plaintiff argues that he was unfairly disciplined for the incidents underlying the two corporal punishment letters. Plaintiff, however, has not shown that Resnick's rationales for the letters were a pretext for retaliation. Plaintiff's disagreement with Resnick's evaluation of plaintiff's conduct is insufficient to show pretext. No reasonable jury could conclude that Resnick's conclusions were even unreasonable under the circumstances. The Court recognizes that teachers have the difficult task of maintaining order in a classroom while, at the same time, avoiding confrontations with disruptive and aggressive students. Although, in some circumstances, the line between inappropriate teacher conduct and effective classroom management may not be clear, no reasonable jury could conclude that Resnick acted unreasonably in criticizing plaintiff's actions, including his use of potentially inflammatory words and failure to de-escalate the situations that he faced.
Because plaintiff has failed to establish that the November 8, 2004, corporal punishment letter was retaliatory, there is no longer any potential causal connection between the 2004 complaint and the actions taken against plaintiff in the spring and summer of 2005.
Plaintiff raises a number of unsuccessful arguments in attempting to establish that Resnick's reliance on plaintiff's conduct at the dance was a pretext for retaliation.
First, plaintiff insists that he credibly testified that he: (1) did not ask any of the students to dance; and (2) was not intoxicated. However, that testimony does not create a factual dispute on the issue of pretext because the relevant question is not whether plaintiff, in fact, engaged in the conduct at issue, but whether Resnick believed that plaintiff did and issued him an unsatisfactory rating for non-discriminatory reasons. Given the evidence against plaintiff, which included an independent investigation conducted by SCI, no jury could conclude that Resnick acted unreasonably in rejecting plaintiff's self-serving version of events and determining that plaintiff engaged in inappropriate conduct. Evidence from numerous sources contradicted plaintiff's account. And, with the exception of Mercado, plaintiff has not even alleged that those sources discriminated or retaliated against him.
Second, plaintiff relies on the assertion in his affidavit that, at the dance, several security guards approached him and told him that management was trying to get them to say that they had seen plaintiff intoxicated when, in fact, they had not. Gray Aff. ¶ 16. That assertion, however, is inadmissible hearsay.
Third, contrary to plaintiff's argument, the evidence of student complaints to Harmon is not hearsay. Harmon's written statement reported that students came up to him and told him that plaintiff was drunk. Defs.' Ex. K. Although this evidence would not be admissible to establish that the students' comments were, in fact, made, it is admissible for the "non-hearsay" purpose of establishing that Resnick, who appears to have relied on Harmon's statement, "legitimately believed [that plaintiff] had acted improperly."
Finally, plaintiff contends, unconvincingly, that Resnick's failure to follow Europe's disciplinary recommendation is evidence of pretext. Specifically, plaintiff's brief asserts that although Resnick initially followed Europe's suggestion when he issued plaintiff a strongly worded reprimand and warning, a month later, Resnick "suddenly decided" to terminate plaintiff. Pl.'s Br. at 13.
The record evidence, however, does not support the time line and characterization of events set out in plaintiff's brief. Resnick completed plaintiff's unsatisfactory evaluation only two days after issuing plaintiff a letter informing him that his "misconduct [at the March 18 dance] may lead to . . . an unsatisfactory rating for the year and charges . . . which may lead to [his] termination." Pl.'s Ex. 26. The letter of reprimand proposed in Europe's e-mail and Resnick's actual June 27 letter both indicate that plaintiff's misconduct at the dance may lead to an unsatisfactory rating and plaintiff's termination. As such, Resnick's decision to give plaintiff an unsatisfactory rating and to recommend the termination of his probation does not evidence any sudden departure by Resnick from his prior course of action or any disregard of Europe's suggestion regarding the letter of reprimand.
Moreover, even if Resnick did disregard Europe's suggestions regarding appropriate discipline, that bare fact is insufficient under the circumstances to create a factual question on the issue of pretext.
Notably, plaintiff has not raised any argument regarding Resnick's failure to follow Europe's suggestion that plaintiff be offered an opportunity to settle the matter by admitting fault and paying a monetary fine. In any event, Resnick's decision on that point is insufficient to establish a factual question on pretext, particularly when his decision is viewed in light of all of the surrounding circumstances. The fact that Europe was a DOE attorney weakens any probative value that her disregarded recommendation could have on the question of pretext. Lawyers and administrators may often have differing goals, incentives, and motivations concerning employee discipline. Whereas administrators are tasked with running a school, DOE lawyers may be more focused on avoiding litigation and union grievances.
None of plaintiff's arguments raise triable issues of fact on the question of pretext. Therefore, summary judgment is warranted on all of plaintiff's retaliation claims.
Because plaintiff's discrimination and retaliation claims fail, it is unnecessary to reach defendants' arguments regarding qualified immunity and liability under
For the reasons outlined above, defendants' motion for summary judgment is granted. The Clerk of Court is respectfully directed to close the case.
