Valenti v. Massapequa Union Free School District et al
Filing
52
ORDER granting 41 Motion for Summary Judgment. For the reasons set forth in the attached Memorandum and Order, IT IS HEREBY ORDERED that defendants' motion for summary judgment is granted in its entirety on all claims, and the complaint is dismissed in its entirety. Defendants' motion for attorneys' fees is denied. The Clerk of the Court shall enter judgment accordingly and close this case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/28/2012. (Maxwell, Rita)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 09-CV-977 (JFB) (ARL)
_____________________
VINCENT VALENTI,
Plaintiff,
VERSUS
MASSAPEQUA UNION FREE SCHOOL DISTRICT, ET AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
March 28, 2012
___________________
JOSEPH F. BIANCO, District Judge:
Plaintiff Vincent Valenti (“Valenti” or
“plaintiff”) brought this civil rights action
against his employer, the Massapequa Union
Free School District (the “School District”)
and Barbara Williams (“Williams”), a
Principal employed by the School District,
in her individual and official capacity
(collectively, the “defendants”), alleging the
following: (1) employment discrimination
on the basis of gender in violation of Title
VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., as amended (“Title
VII”) and Article 15 of the Executive Law
of the State of New York §§ 290 and 296
(the “Human Rights Law”); (2) unlawful
retaliation for engaging in activities
protected by the aforementioned statutes;
and (3) failure to take reasonable measures
to protect plaintiff from student harassment,
as well as unlawful retaliation for protected
activity, in violation of constitutional rights
secured by 42 U.S.C. § 1983 (“Section
1983”). Specifically, plaintiff claims that he
was the subject of gender discrimination and
retaliation arising from, inter alia, the
School District’s resolution of an allegation
against him by a student regarding
inappropriate touching of a student’s
shoulder, which was investigated by the
School District and resolved in plaintiff’s
favor. Plaintiff seeks actual, compensatory
and punitive damages, attorneys’ fees and
other costs, and equitable relief. Defendants
previously moved to dismiss the complaint,
and this Court dismissed the Title VII claim
against Williams and the Section 1983 claim
against Williams in her official capacity, but
denied the motion as to the other claims.
Defendants now move for summary
uncontroverted facts, no rational jury could
conclude that the handling of this situation
by defendants constitutes an adverse action
for purposes of gender discrimination or
even under the broader definition for
retaliation, nor could such a jury conclude
that defendants were motivated in their
actions by gender and/or an effort to
retaliate. Notwithstanding his contentions to
the contrary, plaintiff has cited no policy or
practice that suggests that the student should
have been disciplined in this situation.
Moreover, there is no evidence of any
similarly situated female teacher who was
treated differently. In essence, plaintiff has
attempted to take a workplace event
resolved in his favor and transform it into a
gender discrimination or retaliation claim
where there is no factual basis for doing so.
Similarly, plaintiff has attempted to take
other mundane, workplace events and
convert them to claims of discrimination.
For example, plaintiff claims that being
asked to submit a document by email, as
opposed to paper, was discriminatory. In
short, the Court has fully analyzed all of
plaintiff’s allegations and, even if they were
all credited, no rational jury could conclude
that they (either individually or collectively)
constitute
gender
discrimination
or
retaliation. Plaintiff’s equal protection claim
under Section 1983, as well as his state law
discrimination claims, cannot survive
summary judgment for the same reasons.
Finally, although the Court is concerned that
plaintiff appears to perceive gender
discrimination and/or retaliation even where
there is insufficient factual or legal basis for
doing so, the Court does not believe
defendants are entitled to attorneys’ fees
under the circumstances of this case. In
particular, the Court concludes that there is
an insufficient basis to find that plaintiff
brought and continued the lawsuit in bad
faith, or that it was factually and/or legally
judgment as to the remaining causes of
action.
For the reasons set forth below, the
motion is granted in its entirety.
In
particular, the Court denied defendants’
motion to dismiss the complaint because
plaintiff had alleged (1) that, when a student
accused him of improper behavior, the
School District did not discipline the student
for a false accusation, and (2) students of
female teachers were properly disciplined
for similar false allegations. The Court
concluded that, under the liberal pleading
standard, plaintiff had articulated a plausible
claim for gender discrimination and
retaliation. However, discovery has clearly
revealed that no rational jury could find
gender discrimination and/or retaliation even
if all the evidence in the record is construed
most favorably to plaintiff. Specifically,
although plaintiff attempts to create a factual
dispute about every minute detail of the
case, it is uncontroverted that (1) plaintiff
attended a meeting on September 27, 2007,
where Williams advised plaintiff that a
parent of one of plaintiff’s students had
stated that her daughter had felt
uncomfortable when plaintiff touched her on
the shoulder because the daughter
sometimes had difficulty interpreting social
cues; (2) the parent was explicit in noting
that she did not want this to be construed as
an allegation of any kind, and did not
believe plaintiff had done anything wrong or
improper, but wanted plaintiff to be aware of
the situation; (3) Williams emphasized this
point (as plaintiff concedes) by telling
plaintiff, “Don’t worry about it. It’s all
handled. The parent loves you.”; and (4)
Williams did not accuse plaintiff of any
wrongdoing, and plaintiff concedes that he
never asked that an investigation be
conducted or that the student be disciplined
or removed from his class. Given these
2
frivolous, or that there are any other grounds
for such an award.
1. Valenti’s Prior Actions
Plaintiff filed two complaints against the
School District in 2003 and 2004, both
alleging gender discrimination and unlawful
retaliation.
(Id. ¶¶ 15, 16.)
Both
complaints were dismissed in their entirety
on September 5, 2006, when this Court
granted the School District’s motion for
summary judgment. (Id. ¶ 17.) Williams
was not named as a defendant in the prior
actions. (Id. ¶¶ 18, 19, Pl.’s 56.1 Counter
Statement ¶ 18, 19.)
I. BACKGROUND
A. Factual Background
The Court has taken the facts set forth
below from the parties’ depositions,
affidavits, and exhibits, and from the parties’
respective Rule 56.1 statements of facts.
Upon consideration of a motion for
summary judgment, the Court shall construe
the facts in the light most favorable to the
non-moving party. See Capobianco v. City
of New York, 422 F.3d 47, 50 (2d Cir. 2005).
Unless otherwise noted, where a party’s 56.1
statement is cited, that fact is undisputed or
the opposing party has pointed to no
evidence in the record to contradict it.1
2. The Meeting Regarding Student’s
Allegation of Inappropriate Touching
Kimberly Hession (“Hession”) is a
social worker at Ames Campus. (Defs.’
56.1 Statement ¶ 20.) According to the
defendants, on September 26, 2007, Hession
had a conversation with the parent of a child
she counsels. (Id. ¶ 21.) The parent told
Hession that her daughter felt uncomfortable
when plaintiff touched her shoulder. (Id.
¶ 23.) The defendants contend that the
parent did not want her statement to be
construed as an allegation, because the
parent understood that her child was
hypersensitive and did not believe that there
was any inappropriate touching. (Id. ¶¶ 22,
24, 25.)
According to the defendants,
Hession reported the discussion to Williams,
who subsequently spoke to the parent. (Id.
¶¶ 26, 27.) Williams confirmed that the
parent was not accusing plaintiff of any
impropriety. (Id. ¶ 27).
Valenti has been employed as a special
education teacher in the School District
since September 1984.
(Defs.’ 56.1
Statement ¶ 14.)
The School District
divides the high school into two campuses.
(Id. ¶¶ 6-8.) The Ames Campus houses the
9th grade class (the “Ames Campus”), while
the Main Campus houses 10th grade through
12th grade.
(Id.)
Williams was the
Principal of Massapequa High School, Ames
Campus, from 2005 to 2010, and became the
Principal of Massapequa High School, Main
Campus, in July 2010. (Id. ¶¶ 12, 13.)
The plaintiff contends that he was told
that the parent approached Williams at
“Back to School Night” to relay this
information, and that he did not know until
Hession’s deposition on November 30, 2010
that the parent initially approached Hession.
(Pl.’s 56.1 Counter Statement ¶¶ 21, 22.)
1
In addition, although the parties’ Rule 56.1
statements contain specific citations to the record to
support their statements, the Court has cited to the
Rule 56.1 statements, rather than the underlying
citation to the record, when utilizing the 56.1
statements for purposes of this summary of facts.
3
has been taken, he has been subjected to,
inter alia, increased supervision. (Id. ¶¶ 35,
36, 36, 37, 38, 39, 40, 41.)
Furthermore, plaintiff asserts that he did not
know any information about the student,
including but not limited to, the
hypersensitivity of the student. (Id. ¶ 24.)
Aside from asking for the name of the
student, plaintiff did not ask for any action
to be taken, including removal of the student
from his class, either at the meeting or at any
time after its conclusion.2 (Defs.’ 56.1
Statement ¶¶ 43, 44, 45, 46, 47.) Although
plaintiff discussed the September 27
meeting with his colleagues, he asserts that
because Williams, Hession, Norden and the
parent of the student knew about the
incident, he was unsure about the number of
people who knew about the alleged
touching. (Pl.’s 56.1 Counter Statement
¶ 50.)
On September 27, 2007, Williams met
with plaintiff and Alex Norden, plaintiff’s
union representative, in William’s office.
(Defs.’ 56.1 Statement ¶¶ 30, 31.)
According to the defendants, Williams
explained that the meeting was informal and
that no disciplinary action would be taken.
(Id. ¶ 34.) She relayed the information she
received from the parent and did not suggest
that plaintiff inappropriately touched the
student. (Id. ¶¶ 32, 33, 34.) Defendants
contend that no one at the meeting indicated
that there was disciplinary action being
taken, that plaintiff had done anything
wrong, or that the parent was making an
accusation against him. (Id. ¶¶ 35, 36, 37,
38, 39, 40.) Additionally, according to the
defendants, no formal or informal allegation
was made by the parent. (Id. ¶ 28.) The
defendants further state that Williams did
not take any disciplinary action against
Valenti. (Id. ¶ 41.) In fact, the defendants
and plaintiff agree that Williams told
plaintiff, “Don’t worry about it. It’s all
handled. The parent loves you.” (Id. ¶ 42,
Pl.’s 56.1 Counter Statement ¶ 42.)
Plaintiff never asked Norden to do
anything with regard to this incident, nor did
he discuss the incident with his union.
(Defs.’ 56.1 Statement ¶¶ 52, 53.) Plaintiff
never asked Williams to take any further
action with regard to the incident, he did not
specifically ask that an investigation be
conducted, nor did he directly ask that
disciplinary action be taken against the
student. (Id. ¶¶ 47, 55, 56.)
Plaintiff contends, however, that,
regardless of his failure to make a request,
the mere statement that he touched a student
should have triggered a formal response by
the School District. (Pl.’s 56.1 Counter
Statement ¶¶ 56, 57.) Plaintiff cites to the
School District’s Code of Conduct (the
“Code of Conduct”) provision that requires
the Administration to enforce the Code of
Conduct and ensure that all cases are
resolved promptly and fairly. (Pl.’s 56.1
However, plaintiff avers that the manner
in which the meeting transpired, and the
presence of Norden, indicated that the
meeting was disciplinary and that a formal
or informal allegation was made against
him. (Pl.’s 56.1 Counter Statement ¶¶ 28,
29, 33, 34.) Moreover, plaintiff denies that
Williams relayed certain information to him,
such as that the female student was
hypersensitive. (Id. ¶ 32.) Plaintiff also
states that, although he was not subjected to
any disciplinary action on the day of the
meeting, and no official disciplinary action
2
According to plaintiff, he requested the name of the
student’s parent at the meeting. (Pl.’s Counter 56.1
Statement ¶ 43-44.)
4
3. Lori Saland Allegedly Commented That
The New Procedures Would Be
“Harder for Vinny and Randi”
Statement ¶¶ 66, 67; Pl.’s Ex. 14, p. 7.)
Valenti refers to the Code of Conduct
section that prohibits a student from
engaging in any conduct that endangers the
safety, morals, health or welfare of self or
others. (Pl.’s 56.1 Statement ¶ 68; Pl.’s Ex.
14, p. 11.) An example is defamation,
which includes making false or unprivileged
statements about an individual that harm the
reputation of the person by demeaning them.
(Pl.’s 56.1 Statement ¶ 69; Pl. Ex. 14, p. 11.)
Valenti states that, according to the Code of
Conduct, students who violate the Code are
subject to disciplinary action and cites to
page 10 of the Code as authority. (Pl.’s 56.1
Statement ¶ 70, Pl. Ex. 14, p. 10.) The Code
of Conduct states, in relevant part, that
“[s]tudents may be subject to disciplinary
action, up to and including suspension from
school.” (Pl.’s Ex. 14, p. 10.)
Lori Saland was the Supervisor for
Secondary Special Education for the School
District from 1997-2008. (Defs.’ 56.1
Statement ¶¶ 64-65.) On October 2, 2007, at
a Special Education Department meeting,
Saland discussed a new district-wide set of
procedures for evaluating teachers and
lesson plan techniques that would require
teachers to complete a new set of
paperwork. (Id. ¶¶ 70-72.) Saland stated,
“It’s going to be harder for Vinny [plaintiff]
and Randi than the others.” (Id. ¶ 75.)
Randi refers to Randi Kohanim, a female
teacher. (Id. ¶ 76.) Kohanim and plaintiff
were the most senior people in the
department. (Id. ¶ 81.) However, although
plaintiff has since admitted that the
comment was also directed to Randi,
plaintiff alleged in his complaint that the
statement was: “I’m sure most of you will
have no problem with it. It’s going to be
harder for Vinny (plaintiff) than others.”
(Id. ¶ 77; Pl.’s 56.1 Counter Statement
¶¶ 75-77.) Plaintiff never discussed the
comment with Saland, nor did he tell
Williams about this meeting. (Defs.’ 56.1
Statement ¶¶ 83-85.)
Plaintiff states that two of his similarly
situated female colleagues had disruptive
students removed from their classes. (Pl.’s
56.1 Statement ¶¶ 80, 84.) Ellen Bashan
(“Bashan”), a Special Education teacher in
the District, was able to have a student who
threatened and harassed her removed from
her class. (Id. ¶¶ 80, 81.) Nancy Doherty
(“Doherty”) also had a student removed
from her class in a prompt manner after she
spoke to Williams about the student. (Id.
¶ 84.) Plaintiff testified in his deposition
that, in both cases, the students’ behavior
was violent and threatening towards his
similarly situated colleagues and that
Bashan told him that she submitted a
disciplinary removal form. (Defs.’ Ex. E, p.
445-53.)
4. Two Guest Speakers Made Jokes at Two
Different Events
At a Special Education Department
workshop meeting on October 11, 2011,
Judy Dodge (“Dodge”), who is not an
employee of the School District3 presented
3
Plaintiff states in Paragraph 94 of his 56.1 Counter
Statement that he did not know if Judy Dodge was
employed by the District in her role as a guest
speaker.
5
as a guest speaker. (Id. ¶¶ 86, 88-90, 94.)
Williams was not present at the meeting and
the defendants contend that Williams had no
role in hiring Dodge as a guest speaker, and
did not know that Dodge might make a joke
about menopause. (Id. ¶¶ 94-96.)4 Dodge
had no reason to know who plaintiff was.
(Id. ¶ 93.)
During the session, Baird made a joke
which, in sum and substance, was “a man
goes into a store to buy a bra for his wife,
and the clerk suggests that he buy a Special
Ed. bra because it rounds them up and keeps
them in.” (Id. ¶¶ 114-15.) Plaintiff believes
that the comment was made to an audience
in which he was the only male, or one of the
only males, in the audience. (Pl.’s 56.1
Counter Statement ¶ 115.) Although
Plaintiff understood that the statement was a
joke, plaintiff contends that he felt
discriminated against based on his gender
because a male speaker would not have been
allowed to reference the male or female
anatomy without “getting called on it.” (Id.
¶ 115-16.) However, plaintiff would feel
discriminated against whether the joke had
been made by a man or woman. (Defs.’
56.1 Statement ¶ 121.)
During the presentation, Dodge sought a
topic to use as an example and stated,
without particularly identifying plaintiff, “If
there weren’t men here, we could do it on
menopause.” (Id. ¶¶ 97-99.) Plaintiff
contends that, when this statement was
made, Dodge looked directly at him. (Pl.’s
56.1 Counter Statement ¶¶ 98-99.) He also
believes that he was likely the only man in
the audience. (Id. ¶ 98.) Plaintiff never
complained about Dodge’s joke to Williams.
(Defs.’ 56.1 Statement ¶ 104.)
Defendants assert that Williams had no
involvement in securing Baird as a speaker
and that she did not know Baird would make
a joke.5 (Id. ¶¶ 117-18.) Plaintiff never
complained about Baird’s joke to Williams.
(Id. ¶ 119.)
On November 6, 2007, plaintiff attended
“Superintendents Conference Day.” (Id.
¶ 106.) Superintendents Conference Day is
a meeting with all of the teachers in the
District. (Id. ¶ 107.) The teachers are then
broken down into smaller sessions. (Id.
¶ 107.)
Guest Speaker Melinda Baird
(“Baird”) spoke during one of the Special
Education sessions. (Id. ¶¶ 108-110.) The
Special Education teachers from Berner
Middle School, Massapequa High School
Main Campus, and Massapequa High
School Ames campus were present at the
session. (Id. ¶ 112.)
5. Student Observer Kristopher Schmidt
Was Assigned to Observe Multiple Teachers
A student observer is a college student
majoring in education who needs
observation hours in a classroom. (Id.
¶ 123.) A student does not get to choose
which classrooms he observes and, for a
teacher, having a student observer is
voluntary. (Id. ¶¶ 124, 129.) For a teacher,
4
Plaintiff does not admit that Williams had no role in
employing Dodge as a guest speaker because he has
no knowledge of Williams’ role, if any, in engaging
Dodge. (Pl.’s 56.1 Counter Statement ¶ 95.) He also
states that he denies knowing “the extent of
Williams’ knowledge on Dodge’s speaking style or
patterns.” (Id. ¶ 96.)
5
Plaintiff admitted in part and denied in part these
statements because he did not know what Williams’
role was in selecting the speakers and cannot “speak
to her intentions.” (Pl.’s 56.1 Counter Statement
¶¶ 117-18.)
6
having a student observer is additional work,
because the teacher has the additional
responsibility of educating a student
observer. (Id. ¶ 127.)
regards to student observers, but denies that
a student observer would typically be
assigned to more than one classroom. (Pl.’s
56.1 Counter Statement ¶ 135.)
One of Saland’s responsibilities was to
assign student observers to particular
classrooms. (Id. ¶ 130.) Plaintiff contends
that, in addition to Saland, Helen St.
Nicholas (“St. Nicholas”), a personal friend
of plaintiff and the Dean at Massapequa
High School, Main Campus who had no
involvement with the Special Education
Department, could also assign student
observers to special education classrooms.
(Pl.’s 56.1 Counter Statement ¶¶ 130, 135,
138-141.) However, defendants disagree
and state that, as supervisor of her
Department, Saland was solely responsible
for assigning student observers to teachers in
her Department. (Defs.’ 56.1 Statement,
¶ 135, 143.)
In 2008, St. Nicholas requested that
Kristopher Schmidt be assigned to observe
plaintiff. (Defs.’ 56.1 Statement ¶ 137.) In
a memorandum dated December 5, 2007,
Zash advised St. Nicholas that the student
had advised her that St. Nicholas had preapproved his observation hours and
identified Valenti as the teacher assigned.
(Id. ¶ 144.) Defendants allege that the
memorandum left blanks for additional
assignments, while plaintiff states that St.
Nicholas told him that only Valenti was
approved to work with the student observer.
(Id. ¶ 145; Pl.’s 56.1 Counter Statement
¶145.) Valenti was informed that Kristopher
Schmidt was assigned to his class on
January 14, 2008. (Defs.’ 56.1 Statement
¶ 152.)
Valenti contends that he was
informed that the student observer was
assigned to all of his classes. (Pl.’s 56.1
Counter Statement ¶ 152.)
In order to have a student observer
assigned to a classroom, a procedure was put
in place. (Id. ¶ 131.) First, a student
observer would register with Nina Zash
(“Zash”), the Superintendent’s secretary.
(Id. ¶ 132.) Once approved, the department
chairs sent out e-mails to teachers asking for
volunteers.6 (Id. ¶ 132.) The defendants
contend that, once Saland contacted the
teachers in her Department, she would
assign the student observer to different
programs and different teachers so that the
observer would have the most exposure to a
variety of programs and teaching styles. (Id.
¶ 136.) Plaintiff admits that Saland would
contact the teachers in the Department in
Saland made the decision to change
Kristopher Schmidt’s assignment so that he
would be able to observe a variety of
classrooms and obtain a better educational
experience. (Defs.’ 56.1 Statement ¶¶ 15456.)
In addition to being assigned to
plaintiff, Kristopher Schmidt was assigned
to teachers who taught Math, Social Studies,
and Science. (Id. ¶ 159.) Valenti contends
that he also taught Math, Social Studies and
Science in his Resource Room Class. (Pl.’s
56.1 Counter Statement ¶ 159.) Valenti
argues that the decision to remove the
student from some of his classes was gender
discrimination
and
retaliation
for
engagement in a protected activity. (Pl.’s
56.1 Counter Statement ¶¶ 154-56.)
Defendants contend that Schmidt continued
6
Plaintiff agrees with this statement, but states that
student-observers do not typically rotate among
different teachers. (Pl.’s 56.1 Counter Statement
¶ 133.)
7
to observe plaintiff’s period 2 English class
and period 4 Resource Room.7 (Id. ¶ 166.)
the recommendations. (Id. ¶¶ 189-90.)
Plaintiff does not recall whether he sent an
electronic copy in response to this request.
(Id. ¶ 191.) Plaintiff does not know if
Saland asked everyone to submit
recommendations as attachments to an email. (Id. ¶ 194.)
6. Lori Saland Allegedly Asked Plaintiff to
Submit Student Recommendations by Email
As supervisor of Secondary Special
Education, part of Saland’s responsibilities
was to run the annual review process for
Special Education students. (Defs.’ 56.1
Statement ¶¶ 179-80.) As part of the annual
review process, teachers were required to
submit a student recommendation for each
of their students. (Id. 182-83.) Student
recommendations are recommendations for
the students’ placement for the following
year. (Id. ¶ 182.)
On February 11, 2008, Saland came into
his classroom and asked for plaintiff to
submit electronic copies of his student
recommendations. (Id. ¶ 198.) Plaintiff
claims that Saland did not ask him, but
yelled and harassed him when she entered
his classroom.
(Pl.’s 56.1 Counter
Statement ¶ 198.) Plaintiff responded by
saying, “I gave them to you already.” (Defs.’
56.1 Statement ¶ 199.) Saland then stated,
“Are you telling me that you’re not going to
give them to me?”8 (Id. ¶ 200.) Plaintiff
claims that he responded, “I’m not telling
you that at all. I’m telling you that I gave
them to you and they are in your mailbox.”
(Id. ¶ 201.) Saland then reiterated that she
wanted the recommendations in email form.9
(Id. ¶ 202.) On February 12, 2008, plaintiff
emailed Saland an electronic copy of the
student recommendations. (Id. ¶ 204.)
Defendants contend that it was Saland’s
practice to have teachers submit student
recommendations by e-mail and, when a
teacher submitted a paper student
recommendation, she would request that it
be resubmitted by email as an attachment.
(Id. ¶¶ 185-86, 193.) Plaintiff disagrees and
states that Saland originally allowed
recommendations to be submitted either on
paper or in electronic form but “changed the
game plan” and required all student
evaluations to be submitted by email after
plaintiff already submitted the forms on
paper. (Pl.’s 56.1 Counter Statement ¶¶
185-86.) Plaintiff believes that this was
done to harass and badger plaintiff. (Id.
¶ 193.)
8
Plaintiff admits and denies this statement because
“Plaintiff denies that Saland merely asked Plaintiff
for the recommendations.” (Pl.’s 56.1 Counter
Statement ¶ 200.)
9
Plaintiff admits and denies this statement because
he alleges that Saland did more than “reiterate” her
request, but rather went on a tirade in front of a
teaching assistant. (Pl.’s 56.1 Counter Statement
¶ 202.)
One or two weeks prior to February 11,
2008, plaintiff placed handwritten student
recommendations in Saland’s mailbox.
(Defs.’ 56.1 Statement ¶¶ 187-88.) Saland
then emailed plaintiff on the same day
asking him to send her an electronic copy of
7
Plaintiff cannot recall whether this is an accurate
statement. (Pl.’s 56.1 Counter Statement ¶ 167.)
8
motion in part. As discussed above, this
Court dismissed the Title VII claim against
Williams and the Section 1983 claim against
Williams in her official capacity, but denied
the motion to dismiss the remaining claims.
Defendants moved for summary judgment
on the remaining causes of action, and the
motion was fully briefed by September 12,
2011. Oral argument was held on November
4, 2011. For the reasons set forth below, the
defendants’ motion for summary judgment
is granted in its entirety.
7. Lori Saland Allegedly Scheduled
Plaintiff’s Annual Reviews Too Close
Together and Then Rescheduled Them at
Plaintiff’s Request
As stated above, teachers in the Special
Education Department are required to
submit a recommendation for each of their
students during the annual review process.
(Id. ¶ 207.) In order to complete the
hundreds of annual reviews that had to be
completed before the end of the year,
teacher reviews were scheduled for
February, March, April and May. (Id.
¶¶ 208-09.)
II. STANDARD OF REVIEW
The standards for summary judgment are
well settled. Pursuant to Federal Rule of
Civil Procedure 56(a), a court may only
grant a motion for 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). The moving
party bears the burden of showing that he or
she is entitled to summary judgment.
Huminski v. Corsones, 396 F.3d 53, 69 (2d
Cir. 2005). “A party asserting that a fact
cannot be or is genuinely disputed must
support the assertion by: (A) citing to
particular parts of materials in the record,
including
depositions,
documents,
electronically stored information, affidavits
or declarations, stipulations (including those
made for purposes of the motion only),
admissions, interrogatory answers, or other
materials; or (B) showing that the materials
cited do not establish the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ.
P. 56(c)(1). The court “is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
In 2008, Plaintiff was scheduled to
conduct annual reviews for 15 of his
students. (Id. ¶ 211.) Saland prepared the
schedule for the reviews.
(Id. ¶ 212.)
Saland’s initial schedule would require
plaintiff to complete his annual review
process in early March 2008 with seven
days between his assigned days. (Pl.’s 56.1
Statement ¶ 175.) On Monday, February 11,
2008, plaintiff wrote an e-mail to Saland
complaining that his annual review dates
were too early and requested that Saland
reschedule his dates later. (Defs.’ 56.1
Statement ¶¶ 214-15.)
That morning,
Saland rescheduled the dates for the review
to March 14, 2008 and March 28, 2008. (Id.
¶¶ 216-17.)
B. Procedural History
On March 10, 2009, plaintiff filed the
instant action, which was assigned to the
Honorable Sandra J. Feuerstein. On April
30, 2009, this matter was reassigned to the
undersigned. Defendants moved to dismiss
the complaint on May 11, 2009. The matter
was fully submitted and oral argument was
held. On February 5, 2010, this Court
granted the motion in part and denied the
9
F.3d 603, 615 (2d Cir. 1996) (quoting
Research Automation Corp., 585 F.2d at
33).
party,
and
to
eschew
credibility
assessments.” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1986) (summary
judgment is unwarranted if “the evidence is
such that a reasonable jury could return a
verdict for the nonmoving party”).
The Second Circuit has provided
additional guidance regarding summary
judgment motions in discrimination cases:
We have sometimes noted that an
extra measure of caution is merited
in affirming summary judgment in a
discrimination action because direct
evidence of discriminatory intent is
rare and such intent often must be
inferred
from
circumstantial
evidence found in affidavits and
depositions. See, e.g., Gallo v.
Prudential Residential Servs., 22
F.3d 1219, 1224 (2d Cir. 1994).
Nonetheless, “summary judgment
remains available for the dismissal of
discrimination claims in cases
lacking genuine issues of material
fact.” McLee v. Chrysler Corp., 109
F.3d 130, 135 (2d Cir. 1997); see
also Abdu-Brisson v. Delta Air
Lines, Inc., 239 F.3d 456, 466 (2d
Cir. 2001) (“It is now beyond cavil
that summary judgment may be
appropriate even in the fact-intensive
context of discrimination cases.”).
Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material
facts . . . . [T]he nonmoving party must
come forward with specific facts showing
that there is a genuine issue for trial.’”
Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d
538 (1986) (emphasis in original)). As the
Supreme Court stated in Anderson, “[i]f the
evidence is merely colorable, or is not
significantly probative, summary judgment
may be granted.” Anderson, 477 U.S. at
249-50, 106 S. Ct. 2505 (citations omitted).
Indeed, “the mere existence of some alleged
factual dispute between the parties” alone
will not defeat a properly supported motion
for summary judgment. Id. at 247-48, 106
S. Ct. 2505 (emphasis in original). Thus, the
nonmoving party may not rest upon mere
conclusory allegations or denials but must
set forth “‘concrete particulars’” showing
that a trial is needed. R.G. Group, Inc. v.
Horn & Hardart Co., 751 F.2d 69, 77 (2d
Cir. 1984) (quoting SEC v. Research
Automation Corp., 585 F.2d 31, 33 (2d Cir.
1978)). Accordingly, it is insufficient for a
party opposing summary judgment “‘merely
to assert a conclusion without supplying
supporting arguments or facts.’” BellSouth
Telecomms., Inc. v. W.R. Grace & Co., 77
Schiano v. Quality Payroll Sys., 445 F.3d
597, 603 (2d Cir. 2006) (quoting Holtz v.
Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d
Cir. 2001)).
10
III. DISCUSSION
See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802, 802 n.13 (1973) (noting
that elements of prima facie case vary
depending on factual circumstances);
Stratton v. Dep’t for the Aging for the City
of New York, 132 F.3d 869, 879 (2d Cir.
1997).
A. Valenti’s Title VII Claim Against The
School District And Human Rights Law
Claims Against The Defendants
1. Applicable Law
Title VII prohibits discrimination against
an employee based on his gender.10 See 42
U.S.C. § 2000e-2(a). Here, plaintiff claims
he has been discriminated against by
defendant on the basis of his gender.
Second, if the plaintiff establishes a
prima facie case, “a rebuttable presumption
of discrimination arises and the burden then
shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for the
employment decision.” Stratton, 132 F.3d at
879; see Reeves, 530 U.S. at 142-43. The
purpose of this step is “to force the
defendant to give an explanation for its
conduct, in order to prevent employers from
simply remaining silent while the plaintiff
founders on the difficulty of proving
discriminatory intent.” Fisher v. Vassar
College, 114 F.3d 1332, 1335-36 (2d Cir.
1997) (en banc), abrogated on other
grounds by Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133 (2000).
The “ultimate issue” in any employment
discrimination case is whether the plaintiff
has met his burden of proving that the
adverse employment decision was motivated
at least in part by an “impermissible reason,”
i.e., that there was discriminatory intent. See
Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 146 (2000); Fields v. N.Y.
State Office of Mental Retardation & Dev’l
Disabilities, 115 F.3d 116, 119 (2d Cir.
1997). In the absence of direct evidence of
discrimination, a plaintiff in an employment
discrimination case usually relies on the
three-step McDonnell Douglas test. First, a
plaintiff must establish a prima facie case of
unlawful discrimination by showing that (1)
he is a member of a protected class (2) who
performed his job satisfactorily (3) but
suffered an adverse employment action (4)
under circumstances giving rise to an
inference of discrimination (or retaliation).
Third, if the employer articulates a
nondiscriminatory reason for its actions, the
presumption of discrimination is rebutted
and it “simply drops out of the picture.” St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
510-11 (1993) (citation omitted); see also
James v. N.Y. Racing Ass’n, 233 F.3d 149,
154 (2d Cir. 2000). The burden then shifts
back to the plaintiff to show, without the
benefit of any presumptions, that more
likely than not the employer’s decision was
motivated, at least in part, by a
discriminatory reason. See Fields, 115 F.3d
at 120-21; Connell v. Consol. Edison Co.,
109 F. Supp. 2d 202, 207 (S.D.N.Y. 2000).
10
In addition to alleging claims under Title VII,
plaintiff alleges discrimination under New York State
Human Rights Law.
Claims of discrimination
brought under New York state law are analyzed using
the same framework as claims brought under Title
VII, and the outcome under state law will be the same
as the outcome under Title VII. See Van Zant v.
KLM Royal Dutch Airlines, 80 F.3d 708, 714-15 (2d
Cir. 1996).
To meet this burden, the plaintiff may
rely on evidence presented to establish his
prima facie case as well as additional
11
Co. v. White, 548 U.S. 53, 57 (2006),
(quoting Torres v. Pisano, 116 F.3d 625,
640 (2d Cir. 1997)). Typical adverse
employment
actions
may
include
termination from a job, decrease in salary,
material
reduction
in
benefits
or
responsibilities, or a less distinguished title.
See Galabya v. N.Y. City Bd. of Educ., 202
F.3d 636, 640 (2d Cir. 2000); Crady v.
Liberty Nat’l Bank & Trust Co., 993 F.2d
132, 136 (7th Cir. 1993)). Changes in
assignments or duties that do not “radical[ly]
change” the nature of work are not typically
adverse employment actions. See Galabya,
202 F.3d at 640 (quoting Rodriguez v. Bd. of
Ed., 620 F.2d 362, 366 (2d Cir. 1980)).
evidence. Such additional evidence may
include direct or circumstantial evidence of
discrimination. Desert Palace, Inc. v. Costa,
539 U.S. 90, 99-101 (2003). It is not
sufficient, however, for a plaintiff merely to
show that he satisfies “McDonnell
Douglas’s minimal requirements of a prima
facie case” and to put forward “evidence
from which a factfinder could find that the
employer’s explanation . . . was false.”
James, 233 F.3d at 157. Instead, the key is
whether there is sufficient evidence in the
record from which a reasonable trier of fact
could find in favor of plaintiff on the
ultimate issue, that is, whether the record
contains sufficient evidence to support an
inference of discrimination. See id.; Connell,
109 F. Supp. 2d at 207-08.
Although the burden of establishing a
prima facie case is minimal, plaintiff has
failed to put forth evidence that would allow
a rational factfinder to conclude that plaintiff
was subjected to an adverse employment
action. In other words, even if plaintiff’s
version of the evidence is credited, he has
failed to point to any conduct that could
constitute an adverse employment action as
a matter of law that would support a claim
for gender discrimination.
As the Second Circuit observed in
James, “the way to tell whether a plaintiff’s
case is sufficient to sustain a verdict is to
analyze the particular evidence to determine
whether it reasonably supports an inference
of the facts plaintiff must prove –
particularly discrimination.” 233 F.3d at
157; see also Norton v. Sam’s Club, 145
F.3d 114, 118 (2d Cir. 1998) (“The thick
accretion of cases interpreting this burdenshifting framework should not obscure the
simple principle that lies at the core of antidiscrimination cases. In these, as in most
other cases, the plaintiff has the ultimate
burden of persuasion.”).
In particular, plaintiff alleges the
following six11 “adverse employment”
11
In Plaintiff’s Opposition to Defendants’ Motion for
Summary Judgment and in his 56.1 Statement of
Undisputed Facts, Plaintiff articulates the following
allegations: (1) Williams looked into Plaintiff’s
classroom; (2) at special education meetings Saland
stated that plaintiff should have brought certain
paperwork; (3) Williams assigned Kristen Fisher to
student-teach other classes in addition to plaintiff’s;
(4) Williams directed plaintiff to shorten his exam;
(5) plaintiff taught three periods in a row and then
had bus duty; (6) in June 2010 plaintiff was assigned
seven final exam proctoring assignments; (7) in May
2010, plaintiff was assigned four resource room
classes; and (8) in November 2009, plaintiff was not
offered a “removal form” after a student pushed
2. No Evidence to Support an Adverse
Employment Action
A plaintiff suffers an adverse
employment action when he experiences a
“materially adverse change in the terms and
conditions of employment.” Richardson v.
N.Y. State Dep’t of Corr. Servcs., 180 F.3d
426, 446 (2d Cir. 1999), abrogated on other
grounds by Burlington N. & Santa Fe Ry.
12
actions by the defendants: (1) no formal
investigation was conducted after a student’s
parent informed the School District that her
daughter did not feel comfortable when
Valenti touched her shoulder; (2) Saland
commented that the new procedures would
be harder for Vinny; (3) two guest speakers
made jokes about menopause and a bra; (4)
a student observer was assigned to observe
several different teachers; (5) Saland
required that student recommendations be
submitted by email; and (6) Saland
scheduled plaintiff’s reviews at an earlier
time and then rescheduled them at plaintiff’s
request.
a. Meeting with Valenti Regarding
Student’s Allegation of Inappropriate
Touching
Valenti’s claim regarding the meeting to
discuss a student’s accusation that Valenti
touched a student inappropriately cannot
provide the basis for an adverse employment
action given the uncontroverted facts in the
record. In any event, there is no evidence
from which a rational jury could conclude
that the defendants’ handling of that
situation was motivated by gender
discrimination.
With respect to the lack of an adverse
employment action, it is uncontroverted that
plaintiff was accused of no wrongdoing and
was not disciplined. The mere fact that
Valenti felt that the meeting with Williams
and Nordam was disciplinary does not make
the action an adverse employment action.
“[A]lthough
reprimands
and
close
monitoring may cause an employee
embarrassment or anxiety, such intangible
consequences are not materially adverse
alterations of employment conditions.”
Castro v. New York City Bd. of Educ.
Personnel, No. 96 Civ. 6314 (MBM), 1998
WL 108004, at *7 (S.D.N.Y. Mar. 12,
1998).
Thus, even if Valenti were
reprimanded (which he was not), it would
not amount to an adverse employment
action. The fact that Valenti felt discomfort
and feared repercussions is not enough to
allege gender discrimination when no actual
disciplinary action was taken against him.
Viewing the evidence in a light most
favorable to plaintiff, the Court concludes,
as a matter of law, that plaintiff has failed to
show that any of these acts by the
defendants were “adverse employment
actions” for purposes of a gender
discrimination claim.
plaintiff and shouted at him. (Pl.’s Mem. in Opp. at
6-8; Pl.’s 56.1 Statement ¶¶ 126-136, 105, 188-190,
181-186, 192, 193-194, 195, 198-99.) As a threshold
matter, new theories of liability should not be
asserted for the first time in Opposition to
Defendants’ Motion for Summary Judgment. See
Casseus v. Verizon N.Y., Inc., 722 F. Supp. 2d 326,
344 (E.D.N.Y. 2010) (“[a]s a threshold matter, courts
generally do not consider claims or completely new
theories of liability asserted for the first time in
opposition to summary judgment”); Sea Tow Services
Intern v. Pontin, 607 F. Supp. 2d 378, n.9 (E.D.N.Y.
2009) (court does not consider new events that
allegedly occurred after the complaint was filed). In
any event, the Court has also fully considered these
allegations and concludes that none of them would
rise to the level of an adverse employment action for
purposes of a gender discrimination claim.
The only disciplinary action that Valenti
claims occurred was that he was subjected to
increased supervision after his meeting with
Williams and Norden. An increase in
supervision without more is not grounds for
a discrimination claim.
For a claim of
“increased supervision” to be actionable, it
13
similarly situated employees
Plaintiff’s protected class”).
must be accompanied by “unfavorable
consequences.” Scafidi v. Baldwin Union
Free Sch. Dist., 295 F. Supp. 2d 235, 239
(E.D.N.Y. 2003); see also Bennett v. Watson
Wyatt & Co., 136 F. Supp. 2d 236, 248
(S.D.N.Y. 2001). Here, apart from the
alleged increased supervision, there was no
unfavorable consequence following the
meeting. Therefore, the failure of the school
to conduct a formal investigation into the
claim that Valenti inappropriately touched a
student and the alleged increased
supervision after his meeting with Williams
and Norden are not adverse employment
actions as a matter of law.
not
of
Plaintiff does point to two situations
with special education teachers Bashan and
Doherty. However, these situations are
distinctly different from the plaintiff’s case.
In both Bashan and Doherty’s situations, a
student was verbally abusive towards the
teacher and made violent and threatening
remarks. In Valenti’s case, there is no
allegation of a threat of violence.
Additionally, unlike Valenti, Bashan
completed a disciplinary removal form,
while Valenti never requested that the
student be removed from his class during his
meeting with Williams or at any time after
the meeting.
Thus, there is not a
“reasonably close resemblance” between
Valenti’s situation and Bashan or Doherty’s
situations.
Similarly, even if plaintiff could
establish an adverse employment action,
there is no evidence that would give rise to
even an inference of gender discrimination.
Valenti’s
argument
that
he
was
discriminated against because no formal
investigation was conducted after the parent
reported the “touching,” and because the
student was not disciplined for a false
accusation, is pure speculation, and has no
factual support in the record. Plaintiff has
failed to point to any other employee who
was accused of similar conduct that led to a
formal investigation. See Graham v. Long
Island R.R., 230 F.3d 34, 40 (2d Cir. 2000)
(stating that to be “similarly situated” for
Title VII purposes, plaintiff must establish
“reasonably close resemblance of the facts
and circumstances of plaintiff’s and
comparator’s case, rather than a showing
that both cases are identical,” and their acts
must be “of comparable seriousness”); see
also Butts v. N.Y. City Dep’t of Hous. Pres.,
No. 00 Civ. 6307 (KMK), 2007 WL 259937,
at *10 (S.D.N.Y. Jan. 29, 2007) (granting
summary judgment where plaintiff offered
only “general and speculative allegations”
that plaintiff was “treated differently than
It should also be noted that Valenti’s
reliance on the Code of Conduct as a basis
for his belief that a formal investigation was
required in his situation is entirely
misplaced. The page Valenti cites to in the
Code of Conduct clearly indicates that
disciplinary action is discretionary.
The
Code of Conduct states that students who
violate certain provisions of the code “may
be subject to disciplinary action, up to and
including suspension from school.” (Pl.’s
Ex. 14, p. 10 (emphasis added).) Moreover,
plaintiff fails to point to a single section of
the Code of Conduct that states that a formal
procedure must be conducted if a student
makes an allegation, especially as here
where it is uncontroverted that the parent
was not claiming any allegation of improper
touching. Thus, there is no basis for
Valenti’s contention that the Code of
Conduct provides that a formal investigation
must be made into the student’s allegation in
this particular situation, or that a student
14
must
be
disciplined
circumstances.
under
discrimination even if it was part of some
adverse employment action (which is
lacking in this case). Therefore, Saland’s
comment, as a matter of law, is not an
adverse employment action.
these
In sum, even construing the evidence
most favorably to plaintiff, there is no
factual basis from which a rational jury
could conclude that the defendants’ handling
of this incident constituted an adverse
employment action or was motivated by
gender.
c. Two Guest Speakers Made Jokes About
Menopause and a Bra
Valenti’s third contention is that the
School District and Williams permitted two
guest speakers to make gender-related jokes
that humiliated plaintiff. Even if true, this
claim fails to constitute an adverse
employment action for purposes of a gender
discrimination claim.
b. Saland’s Comment that the New
Procedures Would Be Harder for “Vinny”
The alleged comment by Saland that the
new procedures would be harder for plaintiff
is also not actionable as an adverse
employment action. In other words, plaintiff
has failed to point to any material alteration
in his conditions of employment that
resulted from this comment.
Even if Valenti is correct that a guest
speaker was looking directly at him when
she made her joke, or that he was one of
only a few men in the room, if not the only
man, the fact that jokes were made and that
Valenti was uncomfortable is not a sufficient
basis to properly allege an adverse
employment
action
for
a
gender
discrimination claim. Valenti has only
alleged that he felt humiliated when the
jokes were made which is not an adverse
employment action. Thus, plaintiff has not
made any allegation that he suffered a
“materially adverse change in the terms and
conditions of his employment” by attending
the meetings where the jokes were made.
See Richardson, 180 F.3d at 446 (quoting
Torres v. Pisano, 116 F.3d 625, 640 (2d Cir.
1997)). Thus, the fact that two guest
speakers made jokes at two meetings that
plaintiff attended is not, as a matter of law,
an adverse employment action.12
In any event, given that plaintiff has now
acknowledged that the comment was also
directed at a female teacher, it is hard to
understand how anyone could conclude that
it is evidence of gender discrimination. In
particular, Valenti originally claimed in his
complaint that Saland’s statement was: “I’m
sure most of you will have no problem with
it. It’s going to [be] harder for Vinny than
others.” (Complaint ¶ 30.) Valenti claimed
that, by making this comment, Saland
treated plaintiff differently than his similarly
situated female colleagues by humiliating
him and referencing his gender. However,
Valenti has since admitted that he
incorrectly quoted Saland in his complaint.
Valenti agrees with the defendants that the
statement actually referenced both Valenti
and Randi Kohanim, a female teacher in his
department. Although Valenti acknowledges
this contradiction, he fails to address how
this significant change in the statement made
can still support a claim of gender
12
Plaintiff has not alleged a hostile work
environment claim. However, even if he did, these
isolated incidents, even if they took place, could not
15
d. A Student Observer Was Assigned To
Observe Several Different Teachers
As a matter of law, an employee who is
required to do what every other similarly
situated employee is required to do does not
suffer an “adverse employment” action. See
Richardson, 180 F.3d at 466. “To be
‘materially adverse’ a change in working
conditions must be ‘more disruptive than a
mere inconvenience or an alteration of job
responsibilities.’” Galabya, 202 F.3d at 640
(quoting Crady, 993 F.2d at 136). Even if
Valenti was inconvenienced by Saland’s
requests that the evaluations be submitted in
email form, it is still not enough to make
that request a “materially adverse”
employment action. See id. at 641 (holding
that to be an adverse employment action, the
assignment must “constitute a setback to the
plaintiff’s
career”).
“[S]ubjective
dissatisfaction with assignments does not
constitute adverse employment action.”
Harrison v. N.Y. City Off-Track Betting
Corp., No. 99 Civ. 6075(VM), 2001 WL
1154691, at *3 (S.D.N.Y. Sept. 28, 2001);
see also Castro v. N.Y. City Bd. of Educ.,
No. 96 Civ. 6314, 1998 WL 108004, at *7
(S.D.N.Y. Mar. 12, 1998) (holding that “not
everything that makes an employee unhappy
is an actionable adverse action”); see also
Brown v. Snow, No. 02 Civ. 7985(GEL),
2006 WL 623594, at *5 (S.D.N.Y. Mar. 13,
2006). Certainly there are situations where
additional duties or alterations in
responsibilities could qualify as adverse
employment actions, but the action must
result in a “materially significant
disadvantage” to the employee. Galabya,
202 F.3d at 641; see also Little v. Nat’l
Broad. Co., 210 F. Supp. 2d 330, 379
(S.D.N.Y. 2002) (reassignment to job with
“undesirable shifts” and “erratic schedule”
could be an adverse employment action).
Additionally, Valenti’s claim that a
student observer was assigned to observe
teachers other than Valenti is not an adverse
employment action as a matter of law.
Not receiving a requested or desired
assignment is not an adverse employment
action. See Bright v. LeMoyne College, 306
F. Supp. 2d 244, 254 (N.D.N.Y. 2004)
(holding that being given a different shift
than the one requested is not an adverse
employment
action);
Ruggieri
v.
Harrington, 146 F. Supp. 2d 202, 217-18
(E.D.N.Y. 2001) (concluding that listing a
name wrong in the school directory, having
difficulty obtaining a parking permit, not
being named a department chair, and not
being assigned to teach summer courses not
adverse.) Here, although Valenti himself
was not being assigned to a class, this
situation is analogous to a situation where
Valenti would be seeking a desired
assignment. Although Valenti may have
wanted the student observer to be assigned
to all of his classes, despite the additional
work he would incur, the fact that the
student’s assignment was changed is not an
adverse employment action.
e. Saland’s Request That Student
Recommendations be Submitted in
Email Form
Plaintiff’s contention that he suffered an
adverse employment action by having to
submit his student recommendations as an
email attachment is similarly unavailing.
Here, plaintiff cannot point to any
“materially adverse” change to his career,
position, salary, benefits, or overall position
provide a basis for such a claim under the
circumstances of this case.
16
differently from his similarly situated female
colleagues. This claim is without merit, and
cannot constitute a basis for gender
discrimination.
as a result of being asked to submit his
evaluations to Saland by email. Regardless
of whether or not Saland originally allowed
evaluations to be submitted in paper or
email form, the decision to only accept
email evaluations not only affected Valenti
but all employees, including his similarly
situated female colleagues. Thus, Valenti
may have been inconvenienced when he was
told he had to submit his student evaluations
in email form, but the request was not an
adverse employment action.
Plaintiff admits that in order to complete
all of the reviews, reviews were conducted
from February through April.
Thus,
although Plaintiff contends that he was
treated differently than his similarly situated
female colleagues by being assigned a date
in March, it necessarily follows that some
teachers may have, and quite possibly were,
scheduled to complete their reviews earlier
than Valenti.
As stated supra, “[t]o be
‘materially adverse’ a change in working
conditions must be ‘more disruptive than a
mere inconvenience or an alteration of job
responsibilities.’” Galabya, 202 F.3d at 640
(quoting Crady, 993 F.2d at 136). Thus,
merely being inconvenienced by being
assigned an earlier date to complete his
reviews does not amount to an adverse
employment action.
Additionally, Valenti claims that when
Saland came to his room to request the
student evaluations, he felt harassed and
believed he was being subjected to increased
supervision. This is also not an adverse
employment action, nor is there any basis to
conclude it was motivated by gender
discrimination.
As stated supra, for a claim of
“increased supervision” to be actionable, it
must be accompanied by “unfavorable
consequences.” Scafidi, 295 F. Supp. 2d at
239; see also Bennett, 136 F. Supp. 2d at
248. In this case, plaintiff has only pointed
to this one isolated incident. Furthermore,
Valenti failed to even allege, much less
submit admissible evidence, that he suffered
any “unfavorable consequences” from the
“increased supervision.”
Thus, given the
evidence this case, no rational jury could
conclude that plaintiff suffered an adverse
employment action.
It should also be noted that plaintiff was
not even inconvenienced by his assignment.
As soon as Valenti requested that the dates
of his reviews be changed Saland
accommodated his request. Thus, the initial
scheduling was not a materially adverse
change in his employment.
In sum, even construing the evidence
most favorably to plaintiff, no rational jury
could conclude that any of the alleged acts
constituted an adverse employment action
for purposes of gender discrimination, or
that they occurred under circumstances
giving rise to an inference of gender
discrimination.
Thus, plaintiff’s gender
discrimination cannot survive summary
judgment.
f. Saland Scheduled Plaintiff’s Reviews
for March and Then Rescheduled the
Reviews upon Plaintiff’s Request
Valenti claims that although his reviews
were rescheduled, the mere fact that his
reviews were initially scheduled earlier
indicates that he was being treated
17
adverse employment action. Distasio v.
Perkin Elmer Corp., 157 F.3d 55, 66 (2d
Cir. 1998); see Terry v. Ashcroft, 336 F.3d
128, 141 (2d Cir. 2003). An employment
action is considered adverse if “the
employer’s actions . . . could well dissuade a
reasonable worker from making or
supporting a charge of discrimination.”
Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 57 (2006).
B. Valenti’s Retaliation Claim
Plaintiff also has asserted a retaliation
claim. Specifically, plaintiff contends “a
reasonable jury could conclude that
defendants’ inactions and failure to relay
relevant information to plaintiff on the
student-touching allegations, despite clear
prohibitions against false accusations in the
Code of Conduct and the policy mandate to
promptly and fairly resolve cases, caused
plaintiff to work in fear and changed the
terms and conditions of his employment.”
(Pl.’s Mem. in Opp. at 18.) Plaintiff asserts
that “[a] reasonable jury could conclude that
these actions and inactions would dissuade a
reasonable worker from filing suits in the
Eastern District of New York against
defendant District, as plaintiff had done
previously.” (Id.)
A claim of retaliation is analyzed under
the three-step burden-shifting analysis laid
out in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-05 (1973). See also
Terry, 336 F.3d at 141.
Under this
framework, “[a] plaintiff must establish a
prima facie case; the employer must offer
through the introduction of admissible
evidence a legitimate non-discriminatory
reason for the [adverse action]; and the
plaintiff must then produce evidence and
carry the burden of persuasion that the
proffered reason is a pretext.” Sista v. CDC
Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir.
2006) (citing Heyman v. Queens Vill.
Comm. for Mental Health for Jamaica Cmty.
Adolescent Program, Inc., 198 F.3d 68, 72
(2d Cir. 1999)). “Title VII is violated when
‘a retaliatory motive plays a part in adverse
employment actions toward an employee,
whether or not it was the sole cause.’”
Terry, 336 F.3d at 140-41 (internal citations
omitted).
As set forth below, the Court disagrees
with plaintiff and concludes that, even
accepting plaintiff’s evidence as true and
drawing all reasonable inferences in
plaintiff’s favor, no rational jury could
conclude that plaintiff was the victim of
retaliation.
Accordingly,
summary
judgment is warranted on the retaliation
claim.
1. Applicable Law
Under Title VII, it is unlawful “for an
employer to discriminate against any of his
employees . . . because [the employee] has
opposed any practice made an unlawful
employment practice by [Title VII].” 42
U.S.C. § 2000e-3(a). To establish a prima
facie case of retaliation, a plaintiff must
show (1) she engaged in a protected activity;
(2) defendant was aware of that activity; (3)
she suffered an adverse employment action;
and (4) there was a causal connection
between the protected activity and the
As noted above, it is well settled that if a
retaliatory motive played a part in the
adverse employment actions, even if it was
not the sole cause, the law is violated.
Sumner v. U.S. Postal Serv., 899 F.2d 203,
209 (2d Cir. 1990) (citing Davis v. State
Univ. of N.Y., 802 F.2d 638, 642 (2d Cir.
1986)); De Cintio v. Westchester County
Med. Ctr., 821 F.2d 111, 116 n.8 (2d Cir.
1987). Likewise, if the employer was at all
18
omitted)); Rigau v. Pfizer Caribbean Corp.,
525 F. Supp. 2d 272, 287 (D.P.R. 2007)
(same).
motivated by retaliatory animus, the law is
violated even if there were objectively valid
grounds for the adverse employment action.
Sumner, 899 F.23d at 209. A plaintiff may
establish a causal connection between the
protected activity and the adverse
employment action either through direct
evidence of retaliatory animus, or by
circumstantial evidence. Id.
Thus, a plaintiff must demonstrate that
his workplace is “permeated with
‘discriminatory intimidation, ridicule, and
insult . . . that is sufficiently severe or
pervasive to alter the conditions of the
victim’s employment and create an abusive
working environment.’” Howley v. Town of
Stratford, 217 F.3d 141, 153 (2d Cir. 2000)
(quoting Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993)); see Feingold v. New
York, 366 F.3d 138, 150 (2d Cir. 2004); see
also Burlington N. & Santa Fe Ry. Co., 548
U.S. 53; Terry, 336 F.3d at 147. “Isolated
instances of harassment ordinarily do not
rise to this level.” Cruz v. Coach Stores,
Inc., 202 F.3d 560, 570 (2d Cir. 2000).
Moreover, in addition to relying on
discrete employment actions to prove
retaliation, a plaintiff can also try to prove
that a retaliatory hostile work environment
existed. In order to establish a retaliatory
hostile work environment, a plaintiff must
satisfy the same standard that is applied
generally to hostile work environment
claims regarding the severity of the alleged
conduct. See, e.g., Rasco v. BT Radianz,
No. 05 Civ. 7147 (BSJ), 2009 WL 690986,
at *15 (S.D.N.Y. Mar. 17, 2009) (“To
establish that a retaliatory hostile work
environment constitutes a materially adverse
change that might dissuade a reasonable
worker from reporting activity prohibited by
Title VII, a plaintiff must satisfy the same
standard that governs hostile workplace
claims by showing that the incidents of
harassment following complaints were
sufficiently continuous and concerted to
have altered the conditions of his
employment.”); Faison v. Leonard St., LLC,
No. 08 Civ. 2192 (PKC), 2009 WL 636724,
at *4 (S.D.N.Y. Mar. 9, 2009) (same);
McWhite v. New York City Hous. Auth., No.
CV 0991(NG)(LB), 2008 WL 1699446, at
*13 (E.D.N.Y. Apr. 10, 2008); see also
Noviello v. City of Boston, 398 F.3d 76, 92
(1st Cir. 2005) (“An allegedly retaliatory act
must rise to some level of substantiality
before it can be actionable. The hostile
work environment doctrine, as developed in
the anti-discrimination jurisprudence of Title
VII, embodies that prerequisite.” (citation
The Second Circuit has held that there is
no “magic” threshold number of harassing
incidents that are required, as a matter of
law, to demonstrate a hostile work
environment. See Richardson, 180 F.3d at
439. Rather, a hostile work environment is
determined by “all the circumstances,”
including
“the
frequency
of
the
discriminatory conduct; its severity; whether
it is physically threatening or humiliating, or
a mere offensive utterance; and whether it
unreasonably interferes with an employee’s
work performance.” Howley, 217 F.3d at
154 (citing Harris, 510 U.S. at 23); see also
Perry v. Ethan Allen, Inc., 115 F.3d 143,
149 (2d Cir. 1997).
19
2. Application13
Second, even construing the evidence
most favorably to plaintiff, no rational jury
could find a causal connection between
protected activity and any of the allegedly
adverse acts. For example, the “student
touching” incident, and the defendants’
handling of it, occurred more than one year
after plaintiff’s lawsuit was dismissed in
September 2006.
Similarly, although
plaintiff contends that defendants continued
to refuse to resolve the incident after he filed
his claim in November 2007, the incident
ended in September 2007 and plaintiff never
spoke again to the administration about it.
In short, there is no evidence from which a
jury could find causation in connection with
plaintiff’s retaliation claim. Accordingly,
plaintiff’s retaliation claim cannot survive
summary judgment.
Although the standard for an adverse
action for retaliation purposes is broader
than for purposes of a gender discrimination
claim, plaintiff has failed to set forth any
actions from which a rational jury could
conclude that he was the victim of
retaliation.
First, as discussed supra, the incidents
enumerated by plaintiff are mundane
workplace issues or inconveniences. His
claims include, inter alia, Williams looking
into his classroom, having eight minutes of
bus duty, having to send a document by
email (rather than paper), and many other
regular interactions between a worker and
his or her supervisor. Even if plaintiff could
prove that the incidents took place and were
retaliatory, no rational jury could conclude
that these acts would dissuade a reasonable
worker from making or supporting a charge
of discrimination.
Similarly, even
collectively, these incidents could not
support a rational finding by a jury of a
retaliatory hostile work environment. As the
Second
Circuit
has
emphasized,
“[r]etaliation laws are intended to protect
employees from genuine workplace
mistreatment and harassment; they are not
intended to guarantee that employees will
never suffer inconveniences or that their
every desire will be fulfilled.” Ruggieri, 146
F. Supp. 2d at 218. Thus, none of plaintiff’s
allegations,
either
individually
or
collectively, could support a finding by a
rational jury of an adverse action for
purposes of a retaliation claim.
C. Valenti’s Section 1983 Claim
Plaintiff also asserts a cause of action
under Section 1983 based upon the alleged
discriminatory conduct by the defendants.
As set forth below, this claim also cannot
survive summary judgment and must be
dismissed.
Under Section 1983, a plaintiff must
show: (1) the deprivation of any rights,
privileges or immunities secured by the
Constitution and federal law, (2) by a person
acting under the color of state law.14 42
14
Section 1983 provides that:
Every person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State or Territory or the
District of Columbia, subjects, or causes to
be subjected, any citizen of the United States
or other person within the jurisdiction
thereof to the deprivation of any rights,
privileges, or immunities secured by the
13
As a threshold matter, for purposes of the summary
judgment motion, defendants do not contest that
plaintiff participated in protected activity and
defendants had knowledge of such activity. Thus, the
Court focuses on the remaining two elements.
20
U.S.C. § 1983. “Section 1983 itself creates
no substantive rights; it provides only a
procedure for redress for the deprivation of
rights established elsewhere.” Sykes v.
James, 13 F.3d 515, 519 (2d Cir. 1993). “‘A
Title VII plaintiff is not precluded from
bringing a concurrent § 1983 cause of
action,’ such as a claim for denial of equal
protection, ‘so long as the § 1983 claim is
based on a distinct violation of a
constitutional right.’” Patterson v. Cnty. of
Oneida, N.Y., 375 F.3d 206, 225 (2d Cir.
2004) (quoting Gierlinger v. N.Y. State
Police, 15 F.3d 32, 34 (2d Cir. 1994) and
citing Saulpaugh v. Monroe Cmty. Hosp., 4
F.3d 134, 143 (2d Cir. 1993)).
The Equal Protection Clause of the
Fourteenth Amendment is “essentially a
direction that all persons similarly situated
be treated alike.” Latrieste Rest. v. Vill. of
Port Chester, 188 F.3d 65, 69 (2d Cir. 1999)
(quoting City of Cleburne v. Cleburne
Living Ctr., Inc., 473 U.S. 432, 439 (1985)).
To prevail on this claim, plaintiff must show
that (1) he was treated differently from
similarly situated individuals; and (2) that
“such differential treatment was based on
impermissible considerations such as race,
religion, intent to inhibit or punish the
exercise of constitutional rights, or
malicious or bad faith intent to injure a
person.” Cine SK8, Inc. v. Town of
Henrietta, 507 F.3d 778, 790 (2d Cir. 2007)
(quoting Harlen Assocs. v. Inc. Vill. of
Mineola, 273 F.3d 494, 499(2d Cir. 2001)).
Plaintiff asserts violations of his rights
under the Equal Protection Clause of the
Fourteenth Amendment15, which provides
that “no State shall . . . deny to any person
within its jurisdiction the equal protection of
the laws.” U.S. Const. amend. XIV, § 1. To
state a claim of discrimination under the
Equal Protection Clause, a plaintiff must
allege that a government actor intentionally
discriminated against him on the basis of his
membership in a protected class. See Linder
v. City of N.Y., 263 F. Supp. 2d 585, 592
(E.D.N.Y. 2003) (citing Diesel v. Town of
Lewisboro, 232 F.3d 92, 103 (2d Cir.
2000)).
For the reasons discussed supra in
connection with this gender discrimination
claim, plaintiff has failed to set forth
evidence that he was treated differently from
similarly situated individuals, on the basis of
his membership in a protected class. In
short, no rational jury could conclude that he
was treated differently from similarly
situated female teachers in connection with
any of the alleged incidents asserted by
plaintiff. Therefore, summary judgment on
plaintiff’s Section 1983 claim against the
School District and Williams is warranted. 16
Constitution and laws, shall be liable to the
party injured in an action at law . . . .
42 U.S.C. § 1983.
15
Plaintiff’s complaint and brief in opposition to the
motion for summary judgment do not explicitly assert
a violation of the Equal Protection Clause of the
Fourteenth Amendment. However, based on the
claims set forth in the complaint, the court assumes
that the plaintiff’s basis for his Section 1983 claim is
the Equal Protection Clause of the Fourteenth
Amendment.
16
Because the Court has found that plaintiff’s Section
1983 claims cannot survive summary judgment, the
Court need not reach defendants argument that
Williams is entitled to qualified immunity.
21
D. Valenti’s State Law Discrimination
Claims17
defendants are entitled
judgment on the state
claims.18
“New York courts require the same
standard of proof for claims brought under
the NYHRL as for those brought under Title
VII, [and the Court] analyze[s] these claims
in tandem. Leopold v. Baccarat, 174 F.3d
261, 264 n.1 (2d Cir. 1999); see also
Drummond v. IPC Int’l, Inc., 400 F. Supp.
2d 521, 535-36 (E.D.N.Y. 2005)
(“Discrimination and retaliation claims
under the NYSHRL are analyzed identically
to claims under . . . Title VII and the
outcome of an employment discrimination
claim made pursuant to the NYSHRL is the
same as it is under . . . Title VII.” (internal
quotation marks and citation omitted)). The
Court exercises supplemental jurisdiction
over plaintiff’s state claims because the
same standard is applicable and, thus,
judicial economy warrants consideration of
these claims. As to the state claims, for the
same reasons the Court found that the
federal claims for gender discrimination and
retaliation
cannot
survive
summary
judgment, the Court concludes that
to summary
discrimination
E. Defendants’ Motion for Attorneys’ Fees
Defendants contend that they are entitled
to attorneys’ fees on their motion for
summary judgment, pursuant to Title VII
and 42 U.S.C. § 1988. In particular,
defendants argue that such fees are proper
because plaintiff’s lawsuit was “‘frivolous,
unreasonable, or groundless, or that plaintiff
continued litigation after it clearly became
so.’” (Defs.’ Mem. of Law at 24 (quoting
Davidson v. Keennan, 740 F.2d 129, 132 (2d
Cir. 1984)). For the reasons that follow,
although it is a close question, defendants’
motion for attorneys’ fees is denied.
42 U.S.C. § 1988(b) provides that:
In any action or proceeding to
enforce a provision of sections 1981,
18
In addition, plaintiff asserts New York Human
Rights Law claims against the individual defendant.
Under the NYSHRL standard for aiding and abetting
liability, “there is . . . a requirement that liability must
first be established as to the employer/principal
before accessorial liability can be found as to an
alleged aider and abettor.” See Drummond, 400 F.
Supp. 2d at 536 (holding that plaintiff’s failure to
establish a NYSHRL claim against employer requires
dismissal of claims against individual employees for
aiding and abetting); see also DeWitt v. Lieberman,
48 F. Supp. 2d 280, 293 (S.D.N.Y.1999) (supervisor
who committed sexual harassment not held liable
under § 296(6) because plaintiff could not state a
claim of sexual harassment against the employer);
Sowemimo v. D.A.O.R. Sec., Inc., 43 F. Supp. 2d 477,
490-91 (S.D.N.Y.1999) (holding that plaintiff failed
to establish liability against individual defendant’s
employer thereby eliminating her claims against the
individual defendant as an aider and abettor under the
NYSHRL). Because plaintiff has failed to establish
the employer’s liability, plaintiff’s claims against the
individual defendant also are dismissed.
17
As a threshold matter, defendants argue that the
Court lacks subject matter over certain incidents in
the complaint because they were not specifically
identified in the Notice of Claim. However, the
Court concludes that the Notice of Claim requirement
is satisfied with respect to the alleged conduct in the
complaint because they all arise from the same
theories of liability that are mentioned in the Notice
of Claim – namely gender discrimination and
retaliation. In addition, defendants argue that the
state law claims against the School District are
governed by the one-year statute of limitations set
forth in Education Law § 3813, and are time barred.
Plaintiff counters that the claims are timely filed
because his charge of discrimination with the EEOC,
which tolled the limitations period. However, the
Court need not decide this issue because it concludes,
as discussed infra, that the state law claims cannot
survive summary judgment even if they are timely.
22
Martin Marietta Aerospace, 833 F.2d 1489,
1491 (11th Cir. 1987) (in finding Rule 11
sanctions unwarranted, court noted, “[t]he
evidence [plaintiff] presented not only failed
to indicate discriminatory treatment, but
instead revealed that [plaintiff] received
several salary increases and promotions
during his tenure. [Plaintiff] made no
showing that other similarly situated
members of the unprotected class were
treated preferentially nor did he present
evidence of retaliation. Under these
circumstances, it is apparent that [plaintiff’s]
claim may be characterized as without
foundation, but there is no evidence that he
was in bad faith in bringing the claim, or
that it was brought for any purpose other
than to receive what he thought he was
entitled to under the law.”); Grant v. Pfizer,
Inc., 683 F. Supp. 41, 45 (S.D.N.Y. 1988)
(“While plaintiff did not succeed in coming
forward with the evidence necessary to
survive defendant’s motion for summary
judgment, her attorney’s expectation that
discovery would produce such evidence was
neither unreasonable nor vexatious.”).19
Thus, this Court finds that there is no basis
to conclude that the lawsuit was filed in bad
faith or was frivolous.
1981a, 1982, 1983, 1985, and 1986
of this title . . . title VI of the Civil
Rights Act of 1964 [42 U.S.C.A. §
2000d et seq.], . . . the court, in its
discretion, may allow the prevailing
party, other than the United States, a
reasonable attorney’s fee as part of
the costs, except that in any action
brought against a judicial officer for
an act or omission taken in such
officer’s judicial capacity such
officer shall not be held liable for
any costs, including attorney’s fees,
unless such action was clearly in
excess of such officer’s jurisdiction.
42 U.S.C.A. § 1988(b). However, if the
prevailing party is the defendant, attorneys’
fees will only be awarded if the plaintiff’s
claim was “‘frivolous, unreasonable, or
groundless, or that the plaintiff continued to
litigate after it clearly became so.’” Oliveri
v. Thompson, 803 F.2d 1265, 1272 (2d Cir.
1986) (quoting Hughes v. Roe, 449 U.S. 5,
15 (1980) (per curiam)); see also
Rounseville v. Zahl, 13 F.3d 625, 632 (2d
Cir. 1994) (citations omitted).
The
defendant does not need to prove bad faith,
but proving so will support an award of
attorneys’ fees. Rounseville, 13 F.3d at 632
(citing Davidson v. Keenan, 740 F.2d 129,
133 (2d Cir. 1984)).
Similarly, although plaintiff opposed the
summary judgment motion even after
discovery produced no evidence to support
plaintiff’s discrimination claims, the Court
The Court has no reason to believe that
plaintiff knew at the time the lawsuit was
filed that it was frivolous. For example, as
noted supra, plaintiff appears to have
believed that other similarly situated female
workers were treated differently from
plaintiff.
Although discovery produced
absolutely no evidence to support plaintiff’s
belief that such similarly situated employees
existed, there is insufficient basis to
conclude that plaintiff’s erroneous assertion
was made in bad faith. See, e.g., Nesmith v.
19
This Court recognizes that this motion is brought
under Section 1988, rather than Rule 11. However,
the Court believes that the Rule 11 cases provide
helpful guidance on the Court’s consideration of this
issue under Section 1988. See, e.g., Banks v.
Prudential California Realty, 15 F.3d 1082, 1994
WL 6572, at *5 (9th Cir. 1994) (“This court has held
that the Rule 11 standard is identical to the standard
used to determine whether or not a prevailing civil
rights defendant is entitled to attorneys’ fees.”)
(citation omitted).
23
appropriate where there is a viable claim
that is weak.”); Eisenberg v. Yes Clothing
Co., No. 90 Civ. 8280(JFK), 1992 WL
36129, at *4 (S.D.N.Y. Feb. 19, 1992)
(“Rule 11 sanctions are not to be imposed on
every litigant that files a motion that the
Court deems premature, or ill-advised, or
weak.”); see generally Christiansburg
Garment Co. v. EEOC, 434 U.S. 412, 42122 (1978) (warning against the use of
“hindsight logic” that “because a plaintiff
did not ultimately prevail, his action must
have been unreasonable or without
foundation”).
does not find such opposition to warrant an
award of attorneys’ fees. In the opposition,
plaintiff cited the legal standard and
attempted to raise disputed factual issues
regarding his underlying conduct at the
plaintiff’s job. Although the Court
determined that any such disputed issues
were not material given the undisputed
evidence regarding the actions of
defendants, the Court does not view
plaintiff’s opposition to have been submitted
in bad faith or to otherwise warrant the
award of fees. In essence, the Court
concludes that plaintiff genuinely believed
that these workplace incidents individually
or cumulatively rose to the level of an
adverse action, and further believed that
discovery would prove that the defendants’
actions were motivated by gender or
retaliation. Although plaintiff was incorrect
in his legal and factual beliefs, his erroneous
assumptions do not rise to the level to
warrant an award of attorneys’ fees against
him under Section 1988.
Accordingly, defendants’ motion for
attorneys’ fees under Section 1988 is
denied.20
In short, even though the basis for this
lawsuit was extremely thin and the
unsuccessful opposition to the summary
judgment motion was very weak, the Court
does not believe attorneys’ fees are
warranted under the particular circumstances
of this case. See, e.g., Mareno v. Rowe, 910
F.2d 1043 (2d Cir. 1990) (“The positions
advanced by [plaintiff] and his attorney,
however faulty, were not so untenable as a
matter of law as to necessitate sanction. Nor
did they constitute the type of abuse of the
adversary system that Rule 11 was designed
to guard against.”); see also Scientific
Components Corp. v. Sirenza Microdevices,
Inc., No. 03 Civ. 1851(NGG) 2007 WL
1026411, at *5 (E.D.N.Y. Mar. 30, 2007)
(“The court agrees that [the defendant] has
been imprudent in choosing to litigate this
claim. However, Rule 11 sanctions are not
20
However, given this Memorandum and Order, as
well as the Court’s September 5, 2006 Memorandum
and Order (granting summary judgment to defendant
School District regarding other discrimination claims
related to his conduct as teacher), plaintiff
unquestionably now has a full understanding of the
type of actions on the part of an employer that could
plausibly constitute an actionable, adverse action
under the discrimination laws. Thus, the Court
expects that plaintiff, prior to bringing another
discrimination lawsuit against the defendants for any
future conduct, will fully analyze any such claims
within the context of the legal framework already set
forth previously by the Court, in order to ensure that
the claims are not legally frivolous.
24
IV. CONCLUSION
For the reasons set forth herein,
defendants’ motion for summary judgment
is granted in its entirety on all claims, and
the complaint is dismissed in its entirety.
Defendants’ motion for attorneys’ fees is
denied. The Clerk of the Court shall enter
judgment accordingly and close this case.
SO ORDERED.
_________________
JOSEPH F. BIANCO
United States District Judge
Dated: March 28, 2012
Central Islip, NY
***
Plaintiff is represented by Kyle T. Pulis,
Esq., Scott M. Mishkin, Esq., and Erik
McKenna, Esq., of Scott Michael Mischkin,
PC, One Suffolk Square, Suite 240, Islandia,
New York, 11749.
Defendants are
represented by Steven C. Stern, Esq., and
Leo Dorfman, Esq., of the Law Offices of
Sokoloff Stern LLP, 355 Post Avenue, Suite
201, Westbury, New York 11590.
25
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