JUDITH C. McCARTHY, Magistrate Judge.
Plaintiff Carolina Sosa ("Plaintiff") commenced this action against Defendant Rockland County Community College ("Defendant" or "RCC") pursuant to Title VII of the Civil Rights Act ("Title VII"). Before the Court is Defendant's Motion for Summary Judgment (the "Motion"), which was filed on October 5, 2016.
The following facts are gathered from Defendant's statement filed pursuant to Rule 56.1 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York ("Rule 56.1"), (Docket No. 34), Defendant's supporting affidavits and exhibits, Plaintiff's Rule 56.1 counter-statement of facts, (Docket No. 50), Plaintiff's supporting affirmations and exhibits, and the pleadings submitted by the parties in support of their contentions.
Plaintiff, a native born United States citizen of Mexican descent, is an assistant professor of Pluralism and Diversity in America at RCC. (Compl.
In 2003, Plaintiff submitted an application for promotion to the rank of associate professor, which was denied by Defendant's Faculty Senate College Reappointment, Tenure, and Promotion Committee (the "FSCRTP"). (Compl. at 2). Plaintiff reapplied in 2004, submitting substantially the same materials, and her application was again denied by the FSCRTP. (Id.). Thereafter, Plaintiff, along with a colleague of Haitian descent, commenced a second lawsuit against Defendant claiming that the denial of her promotion was the result of disparate treatment and intentional discrimination on the basis of her national origin. (Id.). Plaintiff also argued that Defendant had historically underemployed faculty of minority race and ethnicity. On May 1, 2007, the Court granted Defendant's motion for summary judgment in that action, finding, inter alia, that there was no disparate treatment and no evidence of institutional discrimination. See Sosa v. Rockland Cty. Cmty. Coll., No. 04 Civ. 8722 (CLB), 2007 WL 1295723, at *4 (S.D.N.Y. May 1, 2007), aff'd sub nom. Sosa v. Rockland Cmty. Coll., 302 F. App'x 56 (2d Cir. 2008).
In October 2012, Plaintiff submitted a Notice of Intent to Apply for Promotion by Exception, along with a statement explaining why she believed Defendant should promote her from the rank of assistant professor to full professor (the "Exception Application"). (Ex.
In accordance with Professor Coleman's directive, in April 2013, the FSCRTP advised Plaintiff that her application was denied. (Ex. I). Defendant notes that the FSCRTP did not review Plaintiff's materials submitted in support of her Exception Application once it determined that exceptions of this nature would not be considered in the promotion process. (Baker Tr.
Plaintiff appealed the denial to the dean of instruction, Dr. Susan Deer, who supported the FSCRTP's decision. (Ex. J). Plaintiff then made her final appeal to President Wood, who also affirmed the FSCRTP's denial of the Exception Application and cited data conveying Plaintiff's unsatisfactory performance at RCC.
At various times throughout her employment with Defendant, Plaintiff requested: (i) office and classroom reassignment and reconfiguration due to, inter alia, arthritis in her foot; and (ii) that she be permitted to enter student grades in a non-electronic format due to migraine headaches caused by prolonged computer use.
In 2003, Plaintiff requested that her office be relocated to a particular building on the RCC campus on the same floor as her classrooms of choice. (Ex. Q at 3-4). Defendant acceded to this request. (Ex. Q at 8). In 2005, Plaintiff noted that she had difficulty ambulating around various pieces of furniture in her office and requested that they be removed. (Ex. HH). Despite Defendant's conclusion that the pathways in Plaintiff's office were sufficient for an individual of Plaintiff's mobility, and even for wheelchair passage, Defendant acceded to Plaintiff's request and removed the contested furniture. (Id.). Plaintiff complained, however, that this accommodation was not made in a timely fashion. (Tr. Sosa at 160). Finally, in 2010, Plaintiff requested that the new double-size desks placed in her classroom be replaced with the older single-size desks, as she had difficulty navigating around the new desks and placing them in her desired classroom configuration. (Id. at 25-26). Defendant ultimately granted this request, but Plaintiff again argued that this accommodation was not "immediate." (Id. at 25-26, 160).
Defendant requires that all teaching faculty enter student grades online. (Roy Aff.
Under Rule 56 of the Federal Rules of Civil Procedure, the moving party bears the burden of demonstrating that it is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). The Court must 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine dispute as to a material fact "exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. Cty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008) (citation omitted); see also Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-48 (1986). "A fact is material if it might affect the outcome of the suit under the governing law." Casalino v. N.Y. State Catholic Health Plan, Inc., No. 09 Civ. 2583 (LAP), 2012 WL 1079943, at *6 (S.D.N.Y. Mar. 30, 2012) (citation omitted).
In reviewing a motion for summary judgment, the Court "must draw all reasonable inferences in favor of the [non-moving] party" and "must disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150-51 (2000) (citations omitted). That said, the Court may not weigh the evidence or determine the truth of the matter, but rather conducts "the threshold inquiry of determining whether there is the need for a trial." Anderson, 477 U.S. at 250.
The moving party bears the initial burden of "demonstrating the absence of a genuine issue of material fact." Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008) (citing Celotex, 477 U.S. at 323). If the moving party meets this initial burden, the burden then shifts to the non-moving party to "present evidence sufficient to satisfy every element of the claim." Id. "The non-moving party `is required to go beyond the pleadings' and `designate specific facts showing that there is a genuine issue for trial,'" id. (citing Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 249-50), and "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). If the non-moving party fails to establish the existence of an essential element of the case on which it bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
In an employment discrimination case such as this, where intent is an issue, the Second Circuit has urged caution in granting summary judgment, since direct evidence of intentional discrimination is available only in the rarest of instances. See Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999) (noting that "the trial court must be especially cautious in deciding whether to grant [summary judgment] in a discrimination case, because the employer's intent is often at issue and careful scrutiny may reveal circumstantial evidence supporting an inference of discrimination"); Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). However, summary judgment is by no means precluded in employment discrimination cases. Indeed, the Second Circuit has noted that the "salutary purposes of summary judgment-avoiding protracted, expensive and harassing trials-apply no less to discrimination cases than to . . . other areas of litigation." Meiri, 759 F.2d at 998.
Plaintiff contends that Defendant's refusal to grant her application for a promotion violated Title VII because it was: (i) a discriminatory action on the basis of her national origin; and (ii) in retaliation for prior protected activities.
Under Title VII, "[i]t shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a)(1).
Courts analyzing discrimination claims under Title VII apply the three step burden-shifting approach established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972). In the first stage, the plaintiff bears the burden of proving a prima facie case of discrimination by a preponderance of the evidence. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). To establish a prima facie case of race or national origin discrimination under Title VII, a plaintiff must show that: "(1) [s]he belonged to a protected class; (2) [s]he was qualified for the position [s]he held; (3) [s]he suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent." Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012); see also Mills v. S. Connecticut State Univ., 519 Fed. Appx. 73, 75 (2d Cir. 2013); Ruiz v. County of Rockland, 609 F.3d 486, 491-92 (2d Cir. 2010). A failure to promote may constitute an adverse employment action. See Mills, 519 Fed. Appx. at 75 ("failure to promote [plaintiff] constitutes an adverse employment action"); Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002) (recognizing "discriminatory failure to promote falls within the core activities encompassed by the term `adverse actions'").
In the second stage, if the plaintiff makes out a prima facie case, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment decision of which plaintiff complains. See Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 254 (1981). As noted by the Supreme Court in Reeves v. Sanderson Plumbing Products, "[t]his burden is one of production, not persuasion." 530 U.S. 133, 142 (2000). Finally, if the defendant is able to provide a nondiscriminatory basis for the employment decision, it satisfies its burden, and the burden shifts back to plaintiff to demonstrate, by a preponderance of the evidence, that the defendant's reasons are merely pretext for discrimination. See id. at 143; St. Mary's Honor Ctr., 509 U.S. at 510-11.
To prevail on a motion for summary judgment, the plaintiff must submit "evidence sufficient to allow a rational factfinder to infer that the employer was actually motivated in whole or in part by . . . discrimination." Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997). Evidence "contradicting the employer's given reason-without more-does not necessarily give logical support to an inference of discrimination," and is therefore insufficient to satisfy plaintiff's burden. James v. N.Y. Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000).
Focusing on the fourth element of Plaintiff's prima facie case, Defendant contends that Plaintiff cannot satisfy her burden of demonstrating that an illegal discriminatory reason played a motivating role in the adverse employment decision. (Def. Br. at 24). Although Plaintiff's burden in establishing a prima facie case for discrimination is minimal, the Court agrees with Defendant that Plaintiff has fallen short.
Plaintiff's conclusory assertions that she was not promoted because she is of Mexican descent do not support an inference of discrimination. The only colorable evidence submitted by Plaintiff that speaks of discrimination is her own self-serving deposition testimony. Plaintiff does not, with competent evidence, identify a single administrator or decision maker at RCC who harbors a discriminatory animus against Americans of Mexican ancestry. Further, Plaintiff's allegation that the FSCRTP discriminated against her in denying the Exception Application is not supported by the evidence. (Pl. Opp. at 16). Indeed, a colleague with whom Plaintiff had an adverse relationship, and who Plaintiff believed discriminated against her during her time at RCC, (Ex. GG), recused himself from participation in the review of Plaintiff's Exception Application to avoid any appearance of impropriety, (Baker Aff. at ¶ 9). Plaintiff's bald allegations that the FSCRTP discriminated against her on the basis of national origin — and that those who recused themselves from the FSCRTP influenced the outcome — are not supported by admissible evidence and, thus, are insufficient to state a claim of Title VII discrimination.
To further support her claim of discrimination, Plaintiff contends that "at the same time [Plaintiff] was being treated as she was, an African-American administrator, [Dr. Roger] Davis, was being subjected to a vicious campaign taunting his education and his speech . . ." by union president Dr. Cliff Garner ("Dr. Garner"). (Pl. Opp. at 14). It is difficult to see how this conclusory statement constitutes any proof of discrimination.
In sum, Plaintiff's claim rests on nothing more than her subjective belief that she was the victim of discrimination because she is of Hispanic descent. An employee cannot defeat summary judgment by restating the conclusory allegations contained in her complaint. See Contemporary Mission, Inc. v. United States Postal Serv., 648 F.2d 97, 107 (2d Cir. 1981).
Even if Plaintiff were able to make out a prima facie case for failure to promote, this claim would be dismissed nonetheless as Defendant has offered legitimate, nondiscriminatory reasons for not promoting Plaintiff. See McDonnell Douglas, 411 U.S. at 802 (stating that once a plaintiff makes a prima facie case, the burden then shifts to the employer to "articulate some legitimate, nondiscriminatory reason for the employee's rejection"). Plaintiff's Exception Application was unprecedented, as no faculty member in RCC's history had ever made an application to bypass an entire faculty rank.
Plaintiff has failed to demonstrate that Defendants' explanations are pretextual. As noted above, Plaintiff has the ultimate burden "to point to evidence that reasonably supports a finding of prohibited discrimination. . . ." Garcia v. Hartford Police Dep't, 706 F.3d 120, 127 (2d Cir. 2013). Plaintiff has propounded no colorable evidence, other than her own self-serving testimony, that would permit a reasonable fact-finder to conclude that the reasons offered by Defendant are pretextual. See St. Mary's, 509 U.S. at 511 n. 4 ("It is not enough . . . to disbelieve the employer;" the plaintiff also must come forward with direct or indirect evidence of unlawful retaliation); Ford v. Consolidated Edison Co. of New York, Inc., No. 03 Civ. 9587 (PAC), 2006 WL 538116, at *12 (S.D.N.Y. Mar. 3, 2006) ("Although Plaintiff makes conclusory allegations of pretext, those allegations are completely undermined by the largely undisputed evidence that Plaintiff [failed to perform his job and was insubordinate]."). In sum, the Court concludes that "no reasonable jury could find that detailed and consistent concerns with [P]laintiff's [performance at work]," in addition to the unprecedented nature of the Exception Application, "were only a pretext for adverse employment actions that were really motivated by racial bias." Wesley-Dickson v. Warwick Valley Cent. Sch. Dist., 586 F. App'x 739, 744 (2d Cir. 2014) (citation omitted).
Accordingly, Plaintiff's claim of discrimination on the basis of national origin under Title VII fails as a matter of law, and Defendant's Motion for Summary Judgment is granted.
Title VII forbids discrimination against an employee "because [s]he has opposed any practice made an unlawful employment practice . . . or because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the auspices of that statute." 42 U.S.C. § 2000e-3(a).
Retaliation claims under Title VII are analyzed under the same burden-shifting framework as discrimination claims. See Sumner v. U.S. Postal Service, 899 F.2d 203, 208 (2d Cir. 1990); see also supra, Section III.A. To make out a prima facie case of retaliation under Title VII, a plaintiff must show that "[s]he engaged in protected participation or opposition under Title VII, that the employer was aware of this activity, that the employer took adverse action against the plaintiff, and that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action." Sumner, 899 F.2d at 208-09.
"[A] plaintiff can indirectly establish a causal connection . . . by showing that the protected activity was closely followed in time by the adverse employment action." Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010) (quoting Gorman-Bakos v. Cornell Coop. Extension of Schenectady County, 252 F.3d 545, 554 (2d Cir. 2001)). As a general matter, "`district courts in this Circuit have consistently held that a passage of more than two months between the protected activity and the adverse employment action does not allow for an inference of causation.'" Williams v. Woodhull Med. & Mental Health Ctr., No. 10 Civ. 1429 (NGG)(LB), 2012 WL 555313, at *2 (E.D.N.Y. Jan. 31, 2012), report and recommendation adopted sub nom., Williams v. Woohdull Med. & Mental Health Ctr., 2012 WL 567028 (E.D.N.Y. Feb. 21, 2012) (quoting Garrett v. Garden City Hotel Inc., No. 05 Civ. 0962 (JFB)(AKT), 2007 WL 1174891, at *21 (E.D.N.Y. Apr. 19, 2007)); see also Gentile v. Potter, 509 F.Supp.2d 221, 239 & n.9 (E.D.N.Y. 2007) (dismissing retaliation claim premised on act that occurred four months after protected activity where there was no direct evidence of retaliation); Nicastro v. Runyon, 60 F.Supp.2d 181, 185 (S.D.N.Y. 1999) ("Claims of retaliation are routinely dismissed when as few as three months elapse between the protected . . . activity and the alleged act of retaliation."). Once a defendant has articulated legitimate nondiscriminatory reasons for the alleged retaliation, the burden shifts back to the plaintiff to show that the proffered reasons are a pretext for discrimination. Sumner, 899 F.2d at 209 (citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981)). "The ultimate burden of persuasion, of course, remains with the plaintiff." Id.
The Court finds that Plaintiff fails to make out a prima facie case of retaliation because she cannot establish a causal connection between the protected activity and Defendant's alleged retaliation. Plaintiff argues that the denial of her Exception Application in 2014 was in retaliation for her 2003, 2005 and 2010 requests to reassign and reconfigure her classroom and office, her 2008 request to be excused from Defendant's online grading requirement, and the two lawsuits she previously brought against Defendant in 1997 and 2004.
Assuming that Plaintiff could make out her prima facie case, the Court finds that Defendant has nonetheless articulated a number of legitimate, nondiscriminatory reasons for denying Plaintiff's Exception Application for promotion from assistant professor to full professor. These reasons, discussed supra, Section III.A.2, include dissatisfaction with Plaintiff's performance — specifically her retention rates, grade distributions and student satisfaction rates as compared to other professors teaching the same course in a similar period (Exs. L, N, Z, AA, DD, JJ; Tr. Wood
Plaintiff suggests that these proffered reasons are pretextual. However, Plaintiff has propounded no colorable evidence, other than her own self-serving testimony, that would permit a reasonable fact-finder to conclude that the reasons offered by Defendant are pretext for an adverse employment action truly motivated by unlawful retaliation. See St. Mary's, 509 U.S. at 511 n.4; see also Ghirardelli v. McAvey Sales & Serv., Inc., 287 F.Supp.2d 379, 391 (S.D.N.Y. 2003), aff'd sub nom., Ghirardelli v. McAvey Sales & Servs., Inc., 98 F. App'x 909 (2d Cir. 2004) ("[E]xamining the record as a whole in light of the legitimate reasons [defendant] proffered for dismissing [plaintiff], and even assuming [plaintiff] could establish the elements of a prima facie case of retaliation, a rational jury could not conclude that the grounds [defendant] articulated are false and merely a pretext for retaliation for protected activity."); Gonzalez v. Beth Israel Medical Center, 262 F.Supp.2d 342, 357-58 (S.D.N.Y. 2003).
Accordingly, Plaintiff's claim of retaliation under Title VII is denied as a matter of law.
For the foregoing reasons, Defendant's Motion for Summary Judgment is granted. The Clerk is respectfully requested to terminate the pending motion, (Docket No. 44), and close the case.
