DAVID N. HURD, United States District Judge.
Plaintiff Robert Musante ("Musante" or "plaintiff"), a former faculty member, filed this civil rights lawsuit against defendant Mohawk Valley Community College ("MVCC" or the "College") after it terminated him following an investigation into student complaints accusing him of classroom misconduct.
Musante asserts claims for age and gender discrimination and retaliation (Second, Third, Fourth, Fifth, Sixth, and Seventh Causes of Action) in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), the Age Discrimination in Employment Act ("ADEA"), and related provisions of the New York State Human Rights Law ("HRL") as well as a defamation claim based on state law (Eighth Cause of Action).
On June 7, 2016, MVCC moved under Federal Rule of Civil Procedure ("Rule") 56 seeking summary judgment in its favor on Musante's discrimination, retaliation, and defamation claims. The motion has been fully briefed and will be considered on the basis of the submissions without oral argument.
In 2003, MVCC hired Musante, who holds a Ph.D. in English Literature from Middle Tennessee State University, as a professor in its Humanities Department. Def.'s Rule 7.1 Statement ¶ 2; Musante Aff. ¶¶ 3, 11. Plaintiff became an Assistant Professor in 2006 and, in 2009, the College promoted him to the title of Associate Professor. Def.'s Rule 7.1 Statement ¶ 2; Musante Aff. ¶¶ 4-5. In each of these three roles, plaintiff taught English and Literature courses to college-age students as well as to certain local high school students who were permitted to enroll in the College's course offerings. Def.'s Rule 7.1 Statement ¶ 3.
Musante's course curriculum included teaching material on "subjects that incorporate[d] themes of human sexuality, relationships[,] and censorship from the works of classic authors such as Shakespeare, Chaucer, Sagan, Blake[,] and many others." Musante Aff. ¶ 11.
As Musante explains, he approached these subjects by treating his students "like the adults they are." Musante Aff. ¶ 12. For instance, plaintiff would "incorporate personal anecdotes and stories into [class] lessons because [he] felt it would be more effective" at connecting with these mostly college-age students.
According to Musante, a number of younger and/or female colleagues in MVCC's English department, all of whom taught the same or similar course material, embraced "similar teaching styles." Musante Aff. ¶¶ 15-17, 38;
Musante maintains that he "had a good and honest relationship" with his students throughout his "entire tenure at MVCC."
These day-to-day disciplinary considerations aside, Musante claims that he consistently received positive performance reviews from the College and was "well regarded by colleagues and students." Musante Aff. ¶ 6. For instance, plaintiff's most recent performance evaluation was "entirely positive." Spicer Aff. Ex. A.
However, Musante's tenure at MVCC was not without incident. In May 2010, the College disciplined him for displaying a "blow-up doll" on campus during school hours. Evans-Dame Aff. ¶ 4; Musante Aff. ¶ 22. According to Evans-Dame, she observed plaintiff from her office window "parade" this doll around campus, showing it to "a group of faculty and staff members and laughing about it." Evans-Dame Aff. ¶ 3.
Musante, for his part, admits that he was in possession of a blow-up doll, but denies that he "paraded" it around campus. Musante Aff. ¶¶ 22-24. Instead, plaintiff explains that a student gave him the doll as a joke, or gag gift, during an end-of-the-semester class pizza party.
As Musante detailed in a letter he later wrote to Lewis Kahler, Dean of the Center for Arts and Humanities ("Dean Kahler"), apologizing for the incident, he had walked to the side entrance of a campus building to "discretely attempt to deflate" the doll when "two teachers" came upon the scene "and did not like it." Spicer Aff. Ex B.
Although Musante "tried to explain that it was a gift," at that point Dean Kahler "walked out of the side entranceway to [the campus building] and saw the doll as well." Spicer Aff. Ex. B. Plaintiff's written explanation indicates that he responded by releasing some "nervous laughter" and attempting to explain the situation.
The parties dispute the outcome and effect of the disciplinary process resulting from the blow-up doll incident. According to Evans-Dame, the parties reached an agreement that would reduce the written warning Musante initially received in May 2010 to an oral one provided plaintiff "went a year from the issuance of the written warning without a further violation of College Policy." Evans-Dame Aff. ¶ 4. One year after that, the oral warning would be completely removed from plaintiff's personnel file.
Musante disputes this explanation and contends the disciplinary matter was in fact "sunsetted"; i.e., completely "removed from [his] personnel file a few years before [his] termination." Musante Aff. ¶ 22. Indeed, the June 3, 2011 e-mail that Evans-Dame sent to plaintiff as a one-year follow-up on this issue explains that the oral warning would be removed from his personnel file by June 2, 2012.
According to MVCC, these actions represented instances in which Musante "overreacted" in matters of student discipline. Evans-Dame Aff. ¶ 5. Plaintiff denies overreacting to these issues and instead maintains that he "addressed students in a direct, respectful manner when it came to discipline." Musante Aff. ¶ 25.
Eventually, Musante's classroom disciplinary practices culminated in a meeting between plaintiff, Evans-Dame, and Associate Dean Deborah Bogan ("Dean Bogan") on February 22, 2012. Def.'s Motion Ex. 19. In a "Counseling Memorandum" issued two days later, Dean Bogan explained that plaintiff should attempt to, inter alia, "resolve behavioral issues informally whenever possible, before initiating more formal actions, such as BERT reports, incidents reports, and Teaching and Learning Agreements."
Musante continued teaching. On September 30, 2013, plaintiff e-mailed Morris Pearson, MVCC's Director of Civic Responsibilities and its Chief Conduct Officer, to bring to his attention "several problems" plaintiff was having with C.D., a young African American student in his English 102 class. Def.'s Motion Ex. 20.
Among other things, Musante's e-mail to Pearson indicated that C.D. "continues to arrive in class late," "interrupts [his] teaching," "engages in a lot of arguing in class about matters that have nothing to do with literature," "mocks the literature" and lashes out at guest speakers, and had begun approaching him outside of class to engage in arguments. Def.'s Motion Ex. 20.
Pearson responded to Musante by e-mail that afternoon, explaining that C.D. had actually contacted his office about filing a written complaint of his own against plaintiff "addressing some alleged statements you made to him, etc." Def.'s Motion Ex. 20. When Dean Bogan, who had been included on Pearson's responsive e-mail, asked what type of complaint C.D. planned to file against plaintiff, Pearson explained that it was a "harassment complaint."
According to Pearson's e-mail, C.D. claimed that plaintiff told him to "shut the fuck up" and to "not speak in class." Def.'s Motion Ex. 20. Pearson described the student as "very upset and shaking" and indicated the student had also complained that plaintiff "emailed his mother addressing his grades."
Musante continued teaching classes. On October 18, 2013, plaintiff called campus security to have M.M., another of his students, removed from the area outside of his classroom. Musante Aff. ¶ 27; Evans-Dame Aff. ¶ 9; Spicer Aff. Ex. F. According to the incident report plaintiff filed with campus security, this action became necessary because M.M. "stared through the window of the door to his class room giving threatening angry looks and gestures" when plaintiff refused to admit M.M. into the class room for being late. Spicer Aff. Ex. F.
M.M. considered Musante's responses to his self-styled attempt at reconciliation to be "pathetic" and took matters into his own hands. Def.'s Motion Ex. 22. On October 21, 2013, three days after the incident with campus security, M.M. submitted to the College his own account of what led to his removal from outside of plaintiff's classroom.
According to M.M.'s complaint, Musante had very recently become "unprofessional," "extremely inappropriate and unfair on a daily basis," and "completely out of control" in his English 101 class. Def.'s Motion Ex. 22 (explaining that "[t]his was not the case until up around a couple of weeks ago though"). M.M.'s letter then went on to describe a story he claimed plaintiff had told the class about plaintiff's time in college:
Def.'s Motion Ex. 22.
M.M. further claimed that "recently every class" Musante uttered expletives like "Fuck It" multiple times each class. Def.'s Motion Ex. 22. In addition, M.M. accused plaintiff of being "very inappropriate to [a] particular girl in the class":
Def.'s Motion Ex. 22.
M.M. also claimed that Musante required the class to watch "American History X," a movie which the student characterized as "extremely inappropriate because of the nudity and racism." Def.'s Motion Ex. 22. M.M.'s complaint also expressed his belief that plaintiff was "targeting" him: according to M.M., plaintiff forced him to stay after class because he was being "disruptive."
M.M.'s written complaint went on to accuse Musante of applying his classroom rules unfairly. Def.'s Motion Ex. 22. According to M.M., plaintiff would allow a certain female student to join class "over five minutes late every single day" even though he did not permit M.M. the same latitude on the day he refused to permit him to enter class late.
Finally, M.M.'s letter stated that he "plan[ned] on transferring out of MVCC after this semester because of [plaintiff]" and stated that plaintiff "is making your college, my college, and thousands of other college[s] look very unprofessional."
M.M.'s anti-Musante polemic eventually made its way to Evans-Dame, who by then had also learned about C.D.'s complaint of a few weeks earlier. Evans-Dame Aff. ¶ 10. And although she conceded at her deposition that she was unaware of any student complaints about plaintiff's classroom behavior between 2010 and the initial complaint made by C.D. in 2013, Spicer Aff. Ex. J, Evans-Dame nevertheless asserts that beginning in "late October and through November, 2013, a number of other students approached the Human Resources Office or other College administrators to complain about [p]laintiff." Evans-Dame Aff. ¶ 11; Def.'s Motion Ex. 12.
On November 1, 2013, Evans-Dame e-mailed Musante seeking to set up a meeting later that day about the complaints that MVCC had received from "several students" in plaintiff's English 101 and English 102 classes. Spicer Aff. Ex. D. According to Evans-Dame's e-mail, these students had complained that plaintiff was "[c]ursing in class or at students" and "[s]haring sexually explicit stories that students believed were unrelated to class instruction and [which] they view as inappropriate."
That afternoon, Evans-Dame and Dean Kahler met with Musante to inform him that he would be suspended with pay while MVCC completed an investigation into the student complaints. Evans-Dame Aff. ¶ 12. According to Evans-Dame, plaintiff "admitted to telling `two little personal stories' during class but did not provide details at that time."
MVCC characterizes Musante's behavior during this meeting as "wholly inappropriate," including being "extremely angry" and "shout[ing]" at both Evans-Dame and Dean Kahler, "and at one point he clenched his fists, contorted his face and shook his whole body in anger, such that we were concerned about his level of anger and his verbal and physical aggressiveness." Evans-Dame Aff. ¶¶ 13-14.
Musante disputes this characterization and insists he did not lose his temper during this meeting. Musante Aff. ¶ 42. Rather, according to plaintiff, he was simply "confused and upset as to why [he] was being suspended, as any person would, given the circumstances."
In the meantime, Musante e-mailed Evans-Dame on November 4, 2013 with several lists of students he believed MVCC should contact because they could provide unbiased information about his teaching behavior in the classroom. Def.'s Motion Ex. 26; Evans-Dame Aff. ¶ 16; Musante Aff. ¶ 44.
By December 2, 2013, Evans-Dame had met with eighteen students who previously attended Musante's classes in the Spring or Fall 2013 semesters. Def.'s Motion Ex. 27. Evans-Dame produced typed summaries of these interviews, the majority of which were either neutral or seemed to cast plaintiff's classroom behavior in a somewhat favorable light. Def.'s Motion Ex. 23.
Roughly speaking, the recorded comments of seven students tended to indicate that Musante had behaved inappropriately in the classroom. Def.'s Motion Ex. 23. For instance, Evans-Dame's interview notes indicate that L.G. claimed plaintiff "would tell stories about sexual exploits in College" that "made her and other students feel uncomfortable" and that he "would draw pictures of male genitals on [the] black board."
In a similar vein, notes from Evans-Dame's interview with N.B. indicate that Musante recounted "disgusting" stories about his "personal sexual experiences in College." Def.'s Motion Ex. 23. And notes from Evans-Dame's interview with J.D., another of plaintiff's students, indicated that he told "disturbing" stories that were "about his sex life and were disruptive."
However, comments from nine of these student trended toward positive appraisals of Musante. Def.'s Motion Ex. 23. For instance, notes from the interview with J.B. indicated that plaintiff is "never inappropriate" in class and expressed disappointment with the College for suspending plaintiff.
A few of these recorded comments, such as those from J.C., expressed conflicting sentiments about Musante's behavior. Def.'s Motion Ex. 23. According to notes from J.C.'s interview, plaintiff "has a passion for teaching," although he "[d]oes talk sexually open during class due to the time period."
Musante casts doubt on the veracity of the negative student comments by emphasizing that at least five of the complaining students — A.I., J.D., N.B., M.M., and C.D. — had posed ongoing disciplinary problems in his classroom, and many were failing his class at the time they chose to complain. Musante Aff. ¶¶ 29-30;
By this point, Musante began to suspect that MVCC "was discriminating against [him] because of [his] gender and possibly [his] age." Musante Aff. ¶ 45. According to
On December 3, 2013, Musante raised his concerns in an e-mail to Evans-Dame:
Def.'s Motion Ex. 29. According to plaintiff, no representative from the College ever responded to this discrimination complaint. Musante Aff. ¶ 47. Evans-Dame, for her part, testified at her deposition that she responded to this complaint by providing plaintiff with the College's "handbook," which set forth the school's policy for dealing with allegations of discrimination. Spicer Aff. Ex. J. Evans-Dame asserts that she also spoke to Dawson McDermott, a member of plaintiff's professional union.
However, Evans-Dame concedes that these are "the only things" she did in response to Musante's discrimination complaint. Spicer Aff. Ex. J. She did not, for example, review any of the course materials for any of the other professors in the English department.
On December 14, 2013, Musante e-mailed Evans-Dame to inquire about her expectations for their next meeting:
Def.'s Motion Ex. 28.
On December 15, 2013, Evans-Dame responded:
Def.'s Motion Ex. 28.
On January 5, 2014, Evans-Dame wrote to Musante to offer him a "very generous package should [he] elect to resign." Spicer Aff. Ex. G. This e-mail set forth the terms of the separation agreement proposed by MVCC and indicated that plaintiff was obligated to notify Evans-Dame of his decision no later than Wednesday, January 8, 2014, at 4:30 p.m.
On February 21, 2014, MVCC sent Musante a "Notice of Charge" stating that his
Def.'s Motion Ex. 30.
On March 11, 2014, MVCC sent Musante a "Disposition of the Notice of Charge," which observed that plaintiff had not taken advantage of any post-termination procedures, such as requesting a "Right to Meet" or a "Right to Respond," after being served with the earlier Notice of Charge. Def.'s Motion Ex. 31; Evans-Dame Aff. ¶ 29. Accordingly, plaintiff's termination from employment became final. Def.'s Motion Ex. 31. Plaintiff remains ineligible
On April 15, 2014, Musante filed a charge with the U.S. Equal Employment Opportunity Commission ("EEOC") alleging that his initial suspension and later termination from MVCC were the result of age and sex discrimination. Spicer Aff. Ex. N.
In July 2014, Musante interviewed for a substitute teaching position with Ronald Wheelock, the Superintendent of Sauquoit Valley Central School District ("SVCSD"). Musante Aff. ¶¶ 51-52; Def.'s Motion Ex. 11. According to plaintiff, Superintendent Wheelock advised him that he could not be hired at SVCSD because Overrocker, an MVCC HR employee familiar with plaintiff's termination who also happened to be the President of the SVCSD's Board of Education, told Superintendent Wheelock that plaintiff was "bad news" and that he should not be hired. Musante Aff. ¶ 52.
Overrocker denies calling Musante "bad news" or demanding that his application for employment be rejected. Def.'s Motion Ex. 11. However, she readily admits that she spoke with Superintendent Wheelock about plaintiff. Overrocker Aff. ¶¶ 3-4. In particular, Overrocker testified in her deposition that:
On September 9, 2014, Joseph Bottini, someone familiar with SVCSD's hiring process, e-mailed Musante about his employment application. Spicer Aff. Ex. I. According to Mr. Bottini's e-mail, he had spoken to Zane Mahar, the SVCSD High School Principal, who told him that plaintiff's application "was pulled due to a complaint" from Overrocker.
Finally, Musante states that Vince Tramacera, a Staffworks employee, informed him that an MVCC representative had told Staffworks that plaintiff "was not permitted on MVCC grounds and, further, that [he] was not eligible for re-hire." Musante Aff. ¶ 54.
Since these events, Musante has "had extreme difficulty in obtaining full-time employment." Musante Aff. ¶ 54. According to plaintiff, MVCC has "negatively influenced at least two potential employment opportunities" — SVCSD and Staffworks.
The entry of summary judgment is warranted when "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."
A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit under the governing law."
When summary judgment is sought, the moving party bears the initial burden of demonstrating that there is no genuine issue of material fact to be decided with respect to any essential element of the claim.
When deciding a summary judgment motion, a court must resolve any ambiguities and draw all inferences from the facts in a light most favorable to the nonmoving party.
MVCC contends it properly terminated Musante "based on complaints from students that he told personal sexual stories in class that had nothing to do with the materials being taught, and that he engaged in other inappropriate comments and conduct." Def.'s Mem. at 3.
Musante, however, contends that those prior matters had been appropriately resolved and that the complaints which prompted MVCC's investigation came from students who clearly had an axe to grind against him.
Musante further argues that the initial decision to suspend him with pay later became a decision to terminate him as a retaliatory measure in response to the discrimination complaint he lodged with Evans-Dame. In addition, plaintiff claims that Overrocker's defamatory statements to Superintendent Wheelock were retaliatory in nature.
MVCC contends Musante's age and gender discrimination claims cannot survive
The parties agree that Musante's age- and gender-based discrimination claims are subject to the analytical framework first introduced in
"This framework places the initial burden of establishing a prima facie case of discrimination on the plaintiff, who must demonstrate that: (1) he is a member of a protected class; (2) he was qualified for the position in question; (3) he suffered an adverse employment action; and (4) the adverse action took place under circumstances giving rise to an inference of discrimination."
Once the plaintiff clears this initial hurdle, "[t]he burden then shifts to the defendant to offer `legitimate and non-discriminatory reasons for the adverse employment action demonstrate in plaintiff's prima facie case.'"
The burden at this stage is also "light," and "[t]he employer need not persuade the court that it was motivated by the reason it provides; rather it must simply articulate an explanation that, if true, would connote lawful behavior."
"If the defendant satisfies its burden of production, then the presumption raised by the prima facie case is rebutted and drops from the case."
MVCC appears to concede that Musante, a male over forty years of age, is a member of protected classes recognized by Title VII, the ADEA, and HRL. However, the College contends that plaintiff still cannot establish a prima facie case of either age or gender discrimination because he has failed to identify any similarly situated comparators.
In support of this argument, the College faults plaintiff for being "evasive" in his deposition testimony when questioned about his knowledge of younger and/or female professors who had lectured on similar themes in a similar manner. The College also emphasizes plaintiff has failed to identify anyone whose classroom misconduct brought on a similar "flood" of student complaints.
These arguments are rejected. First, "Second Circuit case law makes clear that a court may simply assume that a plaintiff has established a prima facie case and skip to the final step in the
Assuming otherwise and examining the merits of Musante's prima facie showing by viewing the evidence in the record in the light most favorable to him, he has satisfied the "minimal" burden that the first step of the
Beyond that, MVCC begs the question by attempting to use the student complaints against Musante as a way to divide him from his similarly situated peers. According to the College, none of these other professors engaged in the same misconduct as plaintiff, a fact which it asserts conclusively defeats any determination that any of his fellow professors were similarly situated to him. But while that may ultimately prove true, plaintiff himself denies engaging in the misconduct described in the students' complaints.
This distinction proves relevant here because one of Musante's principal assertions is that the investigation into the student complaints — that is, complaints from troubled students with a motive to spout falsehoods or exaggerations — was the pretextual vehicle through which MVCC ultimately effected his termination, since the College allegedly knew of, and permitted, younger and/or female professors to teach classes concerning the same sexual subject matter in a similar manner.
At the very least, the parties' disputes over these issues are better resolved by a finder of fact.
Even putting this issue aside and assuming Musante failed identify one or more suitable comparators, the complex sequence of events leading to plaintiff's termination that are described in the summary judgment record would alone suffice to state a prima facie case of discrimination.
"A showing that the employer treated a similarly situated employee differently is `a common and especially effective method' of establishing a prima facie case of discrimination, but it `is only one way to discharge that burden.'"
That is because the fourth element of a plaintiff's prima facie case is a "flexible one that can be satisfied differently in differing factual scenarios."
Turning to the second step of the
The remaining question is whether Musante can demonstrate that this stated reason is a mere pretext, a showing which can be made "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence."
"A discrimination claimant may show pretext by demonstrating such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons."
"Where a plaintiff offers evidence of pretext, courts must take a "case-by-case approach" and examine "the entire record to determine whether the plaintiff could satisfy his `ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.'"
On this final issue, MVCC's summary judgment motion raises more questions than it manages to answer. Neither party has yet bothered to describe in detail the mechanics of the College's typical investigative process. And that omission turns out to be somewhat important here, because the two complaints that kicked off the investigation ultimately leading to plaintiff's termination certainly appear to have come from students with an "axe to grind," just as plaintiff continues to claim.
Even after the investigative process gathered some momentum, records of the eighteen student interviews Evans-Dame conducted appear to have produced only a minority of negative student comments which, taking as true Musante's assertions about the pre-existing disciplinary issues of those particular complainants, seem an unreliable basis on which to sustain any finding of misconduct, let alone termination.
The legitimacy of this disciplinary out-come is further undermined by the fact that the investigation was a solo affair conducted by Evans-Dame. Viewed in the light most favorable to Musante, Evans-Dame was an MVCC employee biased by her own disapproval of plaintiff's prior on-campus behavior, a fact evidenced in part by the parties' sharply contrasting characterizations of the "blow-up doll" incident on an otherwise "sex-positive" college campus.
And assuming for present purposes that MVCC was on notice that younger and/or female faculty members did in fact conduct lectures on similar topics using similar teaching methods and were permitted to do so without incident while Musante's conduct alone drew disciplinary scrutiny, a significant cloud begins to form over the legitimacy of the disciplinary process that led to his termination.
If this were a criminal matter, a fact finder weighing the question of whether misconduct occurred under these circumstances would almost certainly conclude that reasonable doubt existed. Indeed, the description of the investigation available in the present record would most likely fail to even persuade a civil jury under the more lenient preponderance of the evidence standard. Of course, MVCC's internal disciplinary system is not necessarily obligated to adhere to those kind of formal, relatively demanding legal standards.
But what kind of rules, if any, was it obligated to follow? Are solo investigations like the one that occurred here par for the course? Does MVCC regularly reach conclusions in disciplinary matters that appear to run against the weight of the evidence it has gathered? Are there any procedures in place for evaluating the credibility of the complainants? Were those procedures applied here? Is there any requirement of a disinterested decision-maker, a standard that Evans-Dame arguably fails to meet?
Evidence demonstrating how MVCC's process adhered to one or more of these investigative norms would tend to support the College's proffered explanation for its conduct in this case, since the reason asserted for Musante's termination would look far less pretextual if it in fact turned out to be the product of a fair, thorough, and regularly employed investigative process. But viewed in the light most favorable to plaintiff, the record as it stands now makes it appear that the termination was a haphazard affair conducted at the hands of someone with whom plaintiff had already butted heads.
In a similar vein, the parties engage in lengthy disputes about past interactions
MVCC insists that it simply relied on the natural outcome of its investigation and that there was nothing at all unusual about Evans-Dame's decision to "substantiate" the students' complaints about Musante's inappropriate classroom behavior. But viewing the available evidence in the light most favorable to plaintiff, he has presented a legitimate challenge to the reasonableness of the College's reliance on that investigation, casting doubt on the legitimacy of its outcome as a neutral explanation for his termination.
That is especially so in this case, where Musante contends that Evans-Dame's decision-making was colored by her own ageist or sexist opinions about how an older male professor should conduct himself in the classroom, and that her prior disapproval of his on-campus behavior is evidence of her animus. According to plaintiff, she seized on the opportunity to terminate him when she learned that a small cadre of troubled students finally provided her a pretextual basis on which to do so.
To be sure, that theory of unlawful gender and/or age discrimination is far from the most compelling one ever advanced under the anti-discrimination laws. But neither is it so far-fetched or, more importantly, utterly lacking in factual support such that no reasonable jury could find it sufficiently persuasive so as to return a verdict on it in Musante's favor. Accordingly, the College's motion for summary judgment will be denied.
MVCC contends Musante's retaliation claim must be dismissed because he was already "being investigated upon reports of severe misconduct when he first claimed the investigation was prompted by sex discrimination." Def.'s Mem. at 18. According to the College, "[a]n employee in the midst of an investigation with termination a likely outcome cannot convert the situation to his advantage by interposing a claim of discrimination, and thereby clothing any result in the dress of retaliation."
Musante responds that there was absolutely no indication from MVCC that termination was even a possibility at the time he was initially informed of the investigation. Pl.'s Opp'n at 16. According to plaintiff, "[i]t was only after [he] had engaged in protected activity that termination became an option."
"Claims of retaliation for engaging in protected conduct under Title VII and [the HRL] are examined under the
A retaliation plaintiff must first establish a prima facie case by showing that: (1) he participated in a protected activity; (2) the defendant knew of the protected activity; (3) he suffered an adverse employment action; and (4) a causal connection exists between the protected activity and the adverse action.
In the context of a retaliation claim, "an adverse employment action is any action that `could well dissuade a reasonable worker from making or supporting a charge of discrimination.'"
If the plaintiff sustains this initial, minimal burden, a presumption of retaliation arises, which the employer may rebut by articulating a legitimate, non-retaliatory reason for the adverse action.
MVCC argues that Musante cannot establish a causal connection between his December e-mail first complaining about discrimination and his later termination. According to the College, "no inference of retaliation can be drawn" in cases where "an employer is already in the process of deciding on adverse action, or has made the decision to take action but has not yet implemented that decision." Def.'s Mem. at 18.
Again, though, regardless of the merits of Musante's claim, MVCC has resorted to question-begging at this juncture. The College asserts, without further explication or evidentiary support, that termination was the "likely outcome" of the investigation and that "the possibility of termination was already out there." And that may well be the sort of possibility floated during meetings conducted between plaintiff and representatives from the College. It may also be the sort of outcome explicitly contemplated by the College's disciplinary process.
But the current record does not include any clear indication that this was the case, making Musante's claim distinguishable from cases cited by MVCC in which plaintiffs fail to demonstrate causality because they were already on explicit notice of the adverse action that only later occurred.
The College's second argument — that Musante cannot "overcome the fact that the student complaints were a legitimate, nonretaliatory reason for his termination" — fails for substantially the same reasons it fails with respect to plaintiff's discrimination claims. Def.'s Mem. at 20. Accordingly, these claims remain for trial.
Finally, MVCC contends Musante's defamation claim must be dismissed because
Musante responds that Overrocker's own deposition testimony recounts a story she told to Superintendent Wheelock about plaintiff behaving inappropriately at the College in response to Wheelock's questioning about plaintiff's fitness to teach at SVCSD. Def.'s Motion Ex. 11. According to plaintiff, Overrocker's story about his inappropriate behavior is wholly false and has "crushed" his prospects of advancing beyond the role of "substitute teacher" at SVCSD. Musante Aff. ¶ 8.
"Defamation, consisting of the twin torts of libel and slander, is the invasion of the interest in a reputation and good name. Generally, spoken defamatory words are slander; written defamatory words are libel."
"To prevail on a claim for either libel or slander under New York law, plaintiff must show (i) a defamatory statement of fact, (ii) that is false, (iii) published to a third party, (iv) of and concerning the plaintiff, (v) made with the applicable level of fault on the part of the speaker, (vi) either causing special harm or constituting [defamation] per se, and (vii) not protected by privilege."
After reviewing the parties' submissions, disputed issues of fact preclude summary determination of this claim. Accordingly, this claim will also remain for trial.
In light of the various disputed facts as well as the numerous gaps in the current evidentiary record, an unbiased disposition of Musante's claims is better left to a jury.
Therefore, it is
ORDERED that
1. Mohawk Valley Community College's motion for summary judgment is DENIED;
2. Musante's discrimination, retaliation, and defamation claims REMAIN for trial;
3. A jury trial will begin in Utica, New York, on February 12, 2018; and
4. Pre-trial submissions shall be filed on or before February 2, 2018.
IT IS SO ORDERED.
