Minto v. Molloy College et al
Filing
158
ORDER granting 150 motion for summary judgment. For the reasons stated in the attached Memorandum and Order, Defendant's motion for summary judgment on Plaintiffs' remaining claims is granted. Defendant's request for oral argument is denied as moot.The Clerk of Court is respectfully requested to update the caption to reflect that Defendant has been renamed from "Molloy College" to "Molloy University," enter judgment for Molloy University, and close this case.Defendant is respectfully directed to serve a copy of the Memorandum and Order and the Judgment on pro se Plaintiffs via email and FedEx and note service on the docket by 5:00 p.m. on the day after the day that the Clerk of Court enters the Judgment. Ordered by Judge Kiyo A. Matsumoto on 2/6/2024. Associated Cases: 2:16-cv-00276-KAM-AYS, 2:16-cv-00278-KAM-SIL, 2:16-cv-00279-KAM-LGD. (MJF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
Janice Minto, Debra Bacchus, and
Dytra Sewell,
MEMORANDUM & ORDER
Plaintiffs,
- against -
No. 16-cv-276 (KAM) (AYS)
No. 16-cv-278 (KAM) (SIL)
No. 16-cv-279 (KAM) (LGD)
Molloy University, formerly known
as Molloy College, 1
Defendant.
-----------------------------------X
KIYO A. MATSUMOTO, United States District Judge:
Janice Minto, Debra Bacchus, and Dytra Sewell, all Black
women who were over forty years old when they enrolled at Molloy
University (then Molloy College), each brought an action against
Molloy for race, sex, and age discrimination after Molloy
academically dismissed them from its Respiratory Care Program
following the Fall 2012 semester.
After the Court consolidated
the three actions, 2 it dismissed some of the plaintiffs’ claims
but allowed them to proceed on others.
Molloy now moves for
summary judgment on the remaining claims.
For the reasons
Molloy College changed its name to Molloy University during this litigation.
See Molloy College Becomes Molloy University, Molloy University (Mar. 31,
2022), https://www.molloy.edu/news/molloy-college-becomes-molloy-university
[https://perma.cc/E5EM-F98N].
2 To avoid clutter, the Court cites only the filings in Minto’s action,
No. 16-cv-276 (KAM) (AYS), not the filings in Bacchus’s action, No. 16-cv-278
(KAM) (SIL), or in Sewell’s action, No. 16-cv-279 (KAM) (LGD), each of which
the Court consolidated into Minto’s action on January 23, 2020, (see Order
Consolidating Case, Jan. 23, 2020).
1
stated below, the Court grants Molloy’s motion.
BACKGROUND
The facts and procedural history of this eight-year-long
litigation are described in more detail in the Court’s
Memorandum and Order dismissing the plaintiffs’ original
complaints, Minto v. Molloy Coll. (“Minto I”), No. 16-cv-276,
ECF No. 48, 2019 WL 4696287 (E.D.N.Y. Sept. 26, 2019), and
Magistrate Judge Shields’s Report and Recommendation regarding
Molloy’s motion to dismiss the plaintiffs’ amended complaints,
Minto v. Molloy Coll. (“Minto II”), No. 16-cv-276, ECF No. 87,
2021 WL 1394329 (E.D.N.Y. Jan. 21, 2021).
The Court recounts
the facts and procedural history here only to the extent
necessary to explain its resolution of the present motion.
I.
Factual Background
Janice Minto, Debra Bacchus, and Dytra Sewell were enrolled
in Molloy College’s Respiratory Care Program during the 2012–13
academic year.
(ECF No. 150-5, Minto Acad. Tr.; ECF No. 150-7,
Bacchus Acad. Tr.; ECF No. 150-9, Sewell Acad. Tr.)
In January
2013, each plaintiff was informed that she had been academically
dismissed from the program after receiving a grade of C or lower
in Respiratory Science III in the Fall 2012 semester.
No. 150-11, Jan. 17, 2013, Ltrs. from R. Tralongo.)
(ECF
The
plaintiffs, all Black women who were over forty years old when
they enrolled, do not dispute that they were ineligible to
2
continue in the program under a literal reading of Molloy’s
written academic standards; however, they allege that Molloy
discriminated against them by allowing white, male, and younger
students “greater latitude in retaking [Respiratory Care]
courses they had failed in order to pass the program” that
Molloy did not allow the plaintiffs.
(ECF No. 150-2, Minto Am.
Compl., ¶ 39; ECF No. 150-3, Bacchus Am. Compl., ¶ 39; ECF
No. 150-4, Sewell Am. Compl., ¶ 39.)
They also allege Molloy
discriminated against them by refusing to allow them to apply
the credits they earned in the Respiratory Care Program toward a
degree in Molloy’s Health Service Leadership program.
(Minto
Am. Compl. ¶ 43; Bacchus Am. Compl. ¶ 43; Sewell Am. Compl.
¶ 43.)
A.
The Respiratory Care Program’s Academic Standards
To graduate from the Respiratory Care Program when the
plaintiffs were enrolled at Molloy College, a student had to
complete a set of general education courses, Respiratory Care
courses, and “related requirement” courses (math, science,
psychology, and ethics courses) with a grade of C+ or better in
each Respiratory Care course and related requirement course.
(ECF No. 151-2, Course Catalog, pp. 152–53.)
Respiratory Care
courses could “be repeated one time,” and “[f]ailure to attain a
grade of at least ‘C+’ when taking [a Respiratory Care] course
for the second time [would] necessitate withdrawal from the
3
Program.”
(Id. p. 153.)
Additionally, “[a] maximum of two
[Respiratory Care] courses [could] be repeated within the
major,” and “[o]n the third failure to achieve a ‘C+’” in a
Respiratory Care course, “the student [would] be removed from
the Program.” 3
(Id.)
One exception was the Computers in
Respiratory Care course, which was not subject to either of the
program’s restrictions on repeating courses.
(ECF No. 150-13,
Fitzgerald Dep. Tr., 64:14–65:9, 70:4–71:8.)
Although a student
was required to earn a C+ or higher in each related requirement
course to complete the program, the program-specific
restrictions on repeating courses that applied to Respiratory
Care courses did not apply to related requirement courses.
(See
Course Catalog pp. 152–53; see also Fitzgerald Dep. Tr. 65:10–
21.)
A student who withdrew from a course before taking the
final exam would receive a grade of either W (withdrawn) or WF
(withdrawn failing) depending on the student’s performance when
he or she withdrew.
(ECF No. 150-17, Student Handbook, p. 59.)
Although Molloy counted a WF as an F for purposes of calculating
The plaintiffs dispute this fact, arguing that students could retake a
maximum of four courses. (ECF No. 151-1, Pls.’ Rule 56.1 Counter Statement,
¶ 7.) In support, they cite page 51 of the Course Catalog, which states that
“[a] student may be allowed to repeat a maximum of four different courses
while at Molloy.” (Course Catalog p. 51.) The same page, however, also
advises students to “[c]heck with the major program of study and the course
descriptions for restrictions on repeating.” (Id.) The Court thus finds no
genuine dispute that the restrictions stated at page 153 of the Course
Catalog are program-specific “restrictions on repeating” consistent with the
policy stated at page 51 of the Course Catalog.
3
4
the student’s grade point average, (id.), the Respiratory Care
Program did not count grades of W or WF in assessing whether a
student complied with the program’s rule that Respiratory Care
courses could be repeated only one time, (Fitzgerald Dep. Tr.
61:7–62:17).
In other words, a student could complete a
Respiratory Care course by taking the final exam only twice but
could attempt the course three times if one of the first two
attempts resulted in a W or WF.
B.
The Plaintiffs’ Academic Performance
Minto received a D+ in Respiratory Science I and repeated
it, earning a B+ on the second attempt.
(Minto Acad. Tr. at 3.)
She also received a C in Respiratory Science II and repeated it,
earning a C+ on the second attempt.
(Id.)
Her C in Respiratory
Science III in the Fall 2012 semester, (id.), was her third
grade of C or lower in a Respiratory Care course – excluding
Computers in Respiratory Care – and thus rendered her ineligible
to continue in the Respiratory Care Program, (see Course Catalog
p. 153).
Bacchus received a C in Respiratory Science III in the Fall
2011 semester.
(Bacchus Acad. Tr. at 3.)
To continue in the
program, she had one opportunity to complete Respiratory
Science III again and earn a grade of C+ or higher.
Catalog p. 153.)
(See Course
She received a C- when she repeated it in the
Fall 2012 semester, (Bacchus Acad. Tr. at 3), thus rendering her
5
ineligible to continue in the Respiratory Care Program.
Although Bacchus had received a second and third grade of C or
lower in the Fall 2011 semester, (see id.), she was not
dismissed from the program after that semester; one of those C’s
was in Computers in Respiratory Care, which was exempt from the
restrictions on repeating that applied to other Respiratory Care
courses, (see Fitzgerald Dep. Tr. 64:14–65:9, 70:4–71:8.)
Sewell received a C- in Respiratory Science I and repeated
it, earning a B- on the second attempt.
2.)
(Sewell Acad. Tr. at
She also received a C in Respiratory Science II and
repeated it, earning a B- on the second attempt.
(Id. at 2–3.)
Her C- in Respiratory Science III in the Fall 2012 semester,
(id.), was her third grade of C or lower in a Respiratory Care
course – excluding Computers in Respiratory Care – and thus
rendered her ineligible to continue in the Respiratory Care
Program, (see Course Catalog p. 153).
The plaintiffs allege that after their dismissal from the
program, they contacted one of Molloy’s administrators in
January 2013 to appeal their grades and discuss their options.
(Minto Am. Compl. ¶ 35; Bacchus Am. Compl. ¶ 35; Sewell Am.
Compl. ¶ 35.)
They were told they were ineligible to continue
in the Respiratory Care Program based on the “rules of the
program” as “listed in the College Course Catalog” and that it
was too late to appeal their grades in Respiratory Science III.
6
(Minto Am. Compl. ¶ 33; Bacchus Am. Compl. ¶ 33; Sewell Am.
Compl. ¶ 33.)
They were further told that they could not apply
their Respiratory Care Program credits toward a degree in Health
Service Leadership “because [they] had been expelled from” the
Respiratory Care Program.
(Minto Am. Compl. ¶ 35; Bacchus Am.
Compl. ¶ 35; Sewell Am. Compl. ¶ 35.)
C.
Comparator Students’ Academic Performance
The plaintiffs have submitted academic transcripts from
five other students, each of whom is not a Black woman who was
over forty years old during the relevant period.
150-12, Comparator Acad. Trs.)
(See ECF No.
The plaintiffs allege that these
students were “permitted to repeat failed courses beyond the
stated limit[s]” in the Course Catalog “or have other
requirements of the program waived improperly based upon their
race, color, gender and age.”
(See Minto Am. Compl. ¶ 40;
Bacchus Am. Compl. ¶ 40; Sewell Am. Compl. ¶ 40.)
Student 1 took Respiratory Care courses through the Spring
2012 semester.
(Comparator Acad. Trs. at 2.)
They received a
degree in Health Service Leadership in May 2014.
(Id. at 3.)
The plaintiffs acknowledge that Student 1 “cannot be compared”
to them or “used as an example” because Student 1 “did not
finish” the Respiratory Care Program.
(ECF No. 151-1, Pls.’
Rule 56.1 Counter Statement, ¶ 40.)
Student 2 received a grade of C or lower in three
7
Respiratory Care courses, but one of them was Computers in
Respiratory Care.
First, they received a C- in Respiratory Care
Laboratory and repeated it, earning a B- on the second attempt.
(Comparator Acad. Trs. at 4.)
Second, they received a WF in
Respiratory Science I, attempted it again and earned a C, and
then repeated it and earned a B-.
(Id.)
Third, they received a
C in Computers in Respiratory Care and repeated it, earning an A
on the second attempt.
(Id. at 5.)
They also received a W in
Respiratory Science II and Clinical Medicine I and retook both
courses, earning a C+ in each course on the second attempt.
(Id. at 4.)
courses.
Finally, Student 2 retook two related requirement
First, they received a W in Organic and Biological
Chemistry for Allied Health twice before retaking it and earning
a B-.
(Id.)
Second, they received a C- in Microbiology and
repeated it, earning a C+ on the second attempt.
(Id.)
Student 2 received a degree in Respiratory Care in August 2012.
(Id. at 5.)
Student 3 received a C+ or higher in every Respiratory
Science course on their first attempt except Pharmacology, in
which they first received a C and then earned a C+ on the second
attempt.
(Id. at 6–8.)
requirement courses.
Student 3 repeated three related
First, they received a D+ in Microbiology
and repeated it, earning a B on the second attempt.
7.)
(Id. at 6–
Second, they received a C in Elementary Statistics and
8
later earned a B- in an alternative required math course,
College Algebra & Trigonometry.
p. 153.)
(Id. at 6; see Course Catalog
Finally, they received a C in General Psychology,
retook it and received a W, and repeated it and earned a C+.
(Comparator Acad. Trs. at 6–7.)
Student 3 received a degree in
Respiratory Care in August 2013 and a degree in Health Service
Leadership in May 2016.
(Id. at 8.)
Student 4 never received a grade lower than a C+.
9–10.)
(Id.)
(Id. at
They also never withdrew from a Respiratory Care course.
They received a W in one related requirement course,
Organic and Biological Chemistry for Allied Health, and earned a
B- after repeating it.
(Id. at 9.)
Student 4 received a degree
in Respiratory Care in August 2013.
(Id. at 10.)
Student 5 received a grade of C or lower in three
Respiratory Care courses, but one of them was Computers in
Respiratory Care.
(Id. at 11–13.)
First, they received a C in
Respiratory Science I and repeated it, earning a C+.
12.)
(Id. at
Second, they received a C- in Respiratory Science III and
repeated it, earning a B-.
(Id.)
Third, they received a C in
Computers in Respiratory Care and repeated it, earning an A.
(Id.)
They also received a W in Respiratory Science II and
earned a B- after retaking it.
(Id.)
Student 5 received a
degree in Respiratory Care in August 2014.
9
(Id. at 13.)
II.
Procedural Background
Each plaintiff commenced a separate action on January 19,
2016, which the Court since has consolidated, asserting claims
against Molloy and several of its faculty members under Title VI
of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; the Civil
Rights Act of 1866, 42 U.S.C. §§ 1981, 1985–86; state contract
law; the New York State Human Rights Law (“NYSHRL”), N.Y. Exec.
Law § 296; and the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. §§ 1961–68.
Verified Compl.)
(ECF No. 1,
After the parties fully briefed Molloy’s
motion to dismiss, they stipulated to the dismissal with
prejudice of certain claims against Molloy and all claims
against the individual defendants.
(ECF No. 28.)
The plaintiffs have proceeded pro se since mid-2018, after
their attorney was suspended from practicing law.
(See ECF
No. 44, June 28, 2018, Status Hr’g Tr., 2:14–4:11; ECF No. 46,
Aug. 2, 2018, Ltr. from J. Kim.)
The Court has encouraged the
plaintiffs to seek legal assistance, including from the Hofstra
University Pro Se Legal Assistance Program, several times
throughout this litigation.
(See Order Granting Mot. for
Discovery, Sept. 27, 2021; Order Granting Mot. for Extension of
Time to Complete Discovery, Feb. 7, 2022; Am. Order Granting
Mot. for Pre-Motion Conf., Dec. 16, 2022; Scheduling Order,
Jan. 11, 2023; Minute Entry, Jan. 20, 2023.)
10
After each plaintiff’s action was reassigned to the
undersigned judge, the Court granted Molloy’s motion to dismiss
the plaintiffs’ remaining claims but allowed the plaintiffs
leave to amend their complaints.
*13.
Minto I, 2019 WL 4696287, at
In dismissing the plaintiffs’ discrimination claims, the
Court concluded that the plaintiffs’ original complaints failed
to allege the existence of otherwise similarly situated nonBlack, male, or younger “comparator” students who Molloy treated
more favorably than it treated the plaintiffs.
Id. at *9–10.
The Court further concluded that the plaintiffs failed to allege
other facts that would support a plausible inference of
discrimination and that their conclusory allegations of
disparate treatment were insufficient.
Id. at *11.
As to the
plaintiffs’ remaining claims, the Court concluded that the
plaintiffs failed to plead facts supporting a breach of contract
claim and that their civil rights conspiracy claims failed
because they were premised on defective underlying
discrimination claims.
Id. at *12–13.
The plaintiffs filed the operative amended complaints on
November 1, 2019.
The amended complaints assert claims against
Molloy itself and – despite the parties’ stipulation, (see ECF
No. 28) – the individual faculty members named in the original
complaints, (Minto Am. Compl. ¶¶ 5–9, Bacchus Am. Compl. ¶¶ 5–9,
Sewell Am. Compl. ¶¶ 5–9).
The plaintiffs include largely the
11
same claims they included in their original complaints and also
add a request to toll the statute of limitations, which they
list as a separate claim.
(See Minto Am. Compl. ¶¶ 36–120;
Bacchus Am. Compl. ¶¶ 36–120; Sewell Am. Compl. ¶¶ 36–120.)
Molloy moved to dismiss the amended complaints, (ECF No. 77),
and the Court referred the motion to Magistrate Judge Shields
for a report and recommendation.
Magistrate Judge Shields recommended dismissing (1) all
claims against the individual defendants, (2) claims against
Molloy based on conduct that fell outside the limitations
period, (3) any federal claims of sex and age discrimination to
the extent they were alleged, (4) all conspiracy-based claims,
and (5) the plaintiffs’ contract claims.
1394329, at *13.
Minto II, 2021 WL
She explained that the plaintiffs already had
stipulated to dismiss their claims against the individual
defendants with prejudice and that the plaintiffs were not
entitled to toll the statute of limitations.
Id. at *7–8.
She
further explained that Title VI and Section 1981, the federal
statutes under which the plaintiffs brought their discrimination
claims, prohibit only race discrimination and not sex or age
discrimination.
Id. at *8.
Finally, she explained that the
plaintiffs’ conspiracy claims failed based on the intracorporate conspiracy doctrine and that the plaintiffs’
allegations regarding their breach of contract claims remained
12
deficient.
Id. at *11–12.
As to the plaintiffs’ race discrimination claims and statelaw sex and age discrimination claims, however, Magistrate Judge
Shields recommended allowing the plaintiffs to proceed.
*13.
Id. at
She reasoned that although the plaintiffs alleged no facts
that could plausibly support an inference of “direct”
discrimination by Molloy, their amended complaints permitted a
reasonable inference of indirect discrimination based on their
new allegations regarding comparators that Molloy “treated
differently and afforded specific opportunities denied to the
plaintiffs.”
Id. at *10–11.
She elaborated that Molloy “may
ultimately be able to prove” that the alleged comparator
students were not in fact similarly situated and the plaintiffs’
cases may not “survive summary judgment” but that the Court was
unable to engage in such factfinding at the pleadings stage,
where the Court must assume the truth of the plaintiffs’ wellpleaded factual allegations.
Id. at *11.
The undersigned judge
overruled the plaintiffs’ objections to the Report and
Recommendation and adopted it in its entirety.
Minto v. Molloy
Coll. (“Minto III”), No. 16-cv-276, ECF No. 92, 2021 WL 804386,
at *4 (E.D.N.Y. Mar. 3, 2021).
Following that order, Molloy answered the plaintiffs’
complaints, (see ECF Nos. 95–97), and the parties proceeded to
discovery.
Despite their pro se status, the plaintiffs
13
completed document discovery, sat for their own depositions, and
deposed multiple fact witnesses and Molloy’s organizational
representative.
(See ECF No. 130.)
After discovery closed, the
Court held a pre-motion conference regarding Molloy’s
anticipated motion for summary judgment, where the Court
explained the summary judgment process to the plaintiffs. 4
(Minute Entry, Jan. 20, 2023.)
and ripe for adjudication.
The motion is now fully briefed
(See ECF Nos. 149–152.)
LEGAL STANDARD
Summary judgment is proper when there are no genuine
disputes of material fact and the moving party is entitled to
judgment as a matter of law.
Fed. R. Civ. P. 56(a).
A dispute
is “genuine” if a reasonable jury could return a verdict for the
non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
A fact is “material” if it might affect the
In part for that reason, the Court excuses Molloy’s failure to comply with
Local Civil Rule 56.2, which requires a “represented party moving for summary
judgment against a party proceeding pro se” to “serve and file as a separate
document, together with the papers in support of the motion” a form notice
attaching the full texts of Federal Rule of Civil Procedure 56 and Local
Civil Rule 56.1. Based on the Court’s thorough explanation of the summary
judgment process to the plaintiffs at the pre-motion conference as well as
the plaintiffs’ proper submission of an opposing memorandum of law, Rule 56.1
counter statement, and exhibits, the Court finds that the plaintiffs
understood “the nature and consequences of summary judgment.” See Jova v.
Smith, 582 F.3d 410, 414 (2d Cir. 2009) (finding absence of notice to pro se
plaintiffs harmless where “record indicate[d] that [plaintiffs] were fully
aware of the requirements of summary judgment” based on adequacy of their
filings and their submission of evidence); Grassel v. Dep’t of Educ. of City
of N.Y., No. 12-cv-1016 (PKC), 2015 WL 5657343, at *4 (E.D.N.Y. Sept. 24,
2015) (finding failure to comply with Local Civil Rule 56.2 “harmless”
because it was “obvious” from pro se plaintiff’s “opposition that he
[understood] the nature and consequences of summary judgment” and “no purpose
would be served by requiring [defendant] to re-serve its summary judgment
motion accompanied by a Local Civil Rule 56.2 notice”).
4
14
outcome of the case under the governing law.
Id.
Unlike at the
pleadings stage, where a claimant may rely on its own bare
allegations to survive dismissal, the non-moving party at the
summary judgment stage must come forward with evidence that
would be admissible at trial.
Clementine Co., LLC v. Adams,
74 F.4th 77, 83 n.1 (2d Cir. 2023); see Weinstock v. Columbia
Univ., 224 F.3d 33, 41 (2d Cir. 2000) (describing summary
judgment as the “put up or shut up” moment in a civil case)
(quoting Fleming James, Jr., & Geoffrey C. Hazard, Jr., Civil
Procedure 150 (2d ed. 1977)).
If the moving party would not have the burden of proof at
trial, its only burden at the summary judgment stage is to
“point out” an absence of evidence to support the non-moving
party’s case.
(1986).
Celotex Corp. v. Catrett, 477 U.S. 317, 325
Once the moving party meets that minimal burden, the
non-moving party must present enough admissible evidence to
create a genuine dispute of material fact in order to avoid
summary judgment.
Souza v. Exotic Island Enterprises, 68 F.4th
99, 108 (2d Cir. 2023).
Although district courts must liberally construe pro se
filings, particularly in the summary judgment context, Jackson
v. Fed. Express, 766 F.3d 189, 195 (2d Cir. 2014), that liberal
construction does not alter the applicable evidentiary burdens,
Vasquez v. Warren, 630 F. Supp. 3d 524, 535 (S.D.N.Y. 2022).
15
DISCUSSION
Magistrate Judge Shields’s Report and Recommendation, which
the Court adopted in its entirety, Minto III, 2021 WL 804386, at
*4, has significantly sharpened the focus of this case.
The
only remaining defendant is Molloy itself, and the only
remaining claims are for race discrimination under Title VI,
Section 1981, and the NYSHRL and for sex and age discrimination
under the NYSHRL.
Id. at *1.
Moreover, due to the Court’s
ruling regarding the timeliness of the plaintiffs’ claims, see
id. at *2–3, the only allegedly discriminatory conduct still at
issue is Molloy’s January 2013 dismissal of the plaintiffs from
the Respiratory Care Program and refusal to permit them to
transfer their credits, Minto II, 2021 WL 1394329, at *2.
I.
Governing Law
The Supreme Court created a burden-shifting framework in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), that
governs each of the plaintiffs’ remaining claims.
See Williams
v. Pace Univ., 192 F. Supp. 3d 415, 421 (S.D.N.Y. 2016) (Title
VI); Orrego v. Knipfing, 564 F. Supp. 3d 273, 283 (E.D.N.Y.
2021) (Section 1981 and NYSHRL).
Under the McDonnell Douglas
framework, the plaintiff bears the initial burden to prove a
prima facie case of discrimination.
Carr v. N.Y. City Transit
Auth., 76 F.4th 172, 177 (2d Cir. 2023).
If the plaintiff meets
that burden, the defendant must state a legitimate, non16
discriminatory reason for its actions.
The burden then
Id.
shifts back to the plaintiff to prove that the defendant’s
reason is mere pretext for unlawful discrimination.
Id.
Establishing a prima facie case under any of the three statutes
that remain at issue requires proving differential treatment
based on a protected characteristic.
First, under Title VI, the plaintiff must establish that he
or she (1) was a member of a protected class, (2) suffered an
adverse action by the defendant concerning an educational
pursuit, (3) was treated differently from similarly situated
persons not in the protected class, and (4) was otherwise
qualified to continue in the educational pursuit.
192 F. Supp. 3d at 422.
Williams,
Protected classes under Title VI
include “race, color, [and] national origin.”
42 U.S.C.
§ 2000d.
Next, under Section 1981, the plaintiff must establish that
(1) he or she was a member of a racial minority, (2) the
defendant intentionally discriminated against the plaintiff
based on race, and (3) the discrimination concerned one of
Section 1981’s enumerated activities.
47 F.4th 78, 90 (2d Cir. 2022).
Silva v. Farrish,
Section 1981’s enumerated
activities include “enforc[ing] contracts,” 42 U.S.C. § 1981,
which courts in this circuit have held include the implied
contracts that arise when students enroll at universities, see,
17
e.g., Evans v. Columbia Univ. in the City of N.Y.,
No. 14-cv-2658 (NSR), 2015 WL 1730097, at *6 (S.D.N.Y. Apr. 13,
2015).
Finally, under Section 296(4) of the NYSHRL, it is an
“unlawful discriminatory practice for an educational institution
to deny the use of its facilities to any person otherwise
qualified” based – among other things – on “race,” “sex,” or
“age.”
N.Y. Exec. Law § 296(4).
In the Second Circuit, a claim
under the NYSHRL is evaluated under the same standard as an
analogous claim under a federal antidiscrimination law.
Padmanabhan v. N.Y. Inst. of Tech. Campus, N.Y., No. 18-cv-5284
(ER), 2019 WL 4572194, at *5 (S.D.N.Y. Sept. 20, 2019).
The
federal statute analogous to Section 296(4) of the NYSHRL is
Title VI.
Id.; see Folkes v. N.Y. Coll. Of Osteopathic Med. of
N.Y. Inst. of Tech., 214 F. Supp. 2d 273, 282 (E.D.N.Y. 2002)
(granting summary judgment and finding “for the reasons
stated . . . in regard to [plaintiff’s] Title VI claim” that
plaintiff “presented wholly insufficient evidence of racial
discrimination and [could not] invoke section 296(4) on that
basis”).
Accordingly, the Court evaluates the plaintiffs’
Title VI and NYSHRL claims under the same liability standards
with the exception that the NYSHRL applies to sex and age
discrimination and Title VI does not.
Discrimination may be proven by either direct or indirect
18
evidence.
Williams, 192 F. Supp. 3d at 422.
Direct evidence
might include a disparaging remark about a plaintiff’s protected
class, Watson v. Richmond Univ. Med. Ctr., 408 F. Supp. 3d 249,
262 (E.D.N.Y. 2019), or a written policy that explicitly
discriminates based on a protected characteristic, Calixte v.
Susan Ray Equities Inc., No. 21-cv-3623 (RPK), 2022 WL 118738,
at *2 (E.D.N.Y. Jan. 22, 2022).
Indirect evidence generally
involves proof that the defendant treated similarly situated
comparators outside the plaintiff’s protected class more
favorably than it treated the plaintiff.
408 F. Supp. 3d at 262.
Watson,
The comparators must be “similarly
situated” to the plaintiff “in all material respects.”
Radwan
v. Manuel, 55 F.4th 101, 133 (2d Cir. 2022).
Here, the plaintiffs have offered no direct evidence of
discrimination, which leaves them to proceed exclusively on an
indirect discrimination theory. 5
Thus, the plaintiffs’ claims
will survive summary judgment only if a reasonable jury could
find based on the evidence provided to the Court that Molloy
The closest the plaintiffs come to offering direct evidence is their
observation that Molloy hired a Vice President for Diversity, Equity and
Inclusion after this litigation commenced. (See Pls.’ Rule 56.1 Counter
Statement p. 17; ECF No. 150-2 pp. 47–53, Flomenhaft Dep. Tr., 38:6–39:22.)
This evidence would be inadmissible at trial. The Federal Rules of Evidence
prohibit attempting to prove that an organization committed misconduct on a
particular occasion through evidence that the organization later adopted a
practice making such misconduct less likely to occur. Fed. R. Evid. 407.
Additionally, the plaintiffs’ allegations that certain faculty members made
“disparaging remarks” about protected classes, (see, e.g., Minto Am. Compl.
¶ 13), which they have not substantiated with any evidence, fail to satisfy
their evidentiary burden at the summary judgment stage.
5
19
permitted non-Black, male, or younger students who were
otherwise similarly situated to the plaintiffs in all material
respects to continue in the Respiratory Care Program or apply
the credits earned from that program toward a degree in the
Health Service Leadership program.
II.
Indirect Evidence of Discrimination
The plaintiffs have failed to present evidence that Molloy
permitted similarly situated comparators who lacked the
plaintiffs’ protected characteristics to continue in the
Respiratory Care Program or apply their credits toward a Health
Service Leadership degree.
Each plaintiff was academically
dismissed from the Respiratory Care Program after failing to
comply with the program’s written academic standards as stated
in Molloy’s course catalog and student handbook.
7.)
(Supra pp. 5–
Minto and Sewell were dismissed for receiving a grade of C
or lower in three different Respiratory Care courses, and
Bacchus was dismissed after receiving a grade of C or lower
twice in the same Respiratory Care course.
(Id.)
To be
“similarly situated” to the plaintiffs “in all material
respects,” see Radwan, 55 F.4th at 133, a comparator would have
to have failed to comply with those same standards yet still
have been permitted to complete the program or to apply his or
her credits earned from the program toward a degree in Health
Service Leadership.
20
Given those circumstances, none of the five comparators are
similarly situated to the plaintiffs in all material respects.
Student 1 was never academically dismissed from the Respiratory
Care Program and received a grade of C or lower in only one
Respiratory Care course.
(Comparator Acad. Trs. at 2–3.)
Student 3 also received a grade of C or lower in only one
Respiratory Care course.
(Id. at 6–8.)
Although Student 3
repeated three related requirement courses, (id.), the
restrictions on repeating courses that applied to Respiratory
Care courses did not apply to related requirement courses,
(Course Catalog pp. 152–53; Fitzgerald Dep. Tr. 65:10–21).
Student 4 never received a grade of a grade of C or lower in any
Respiratory Care or related requirement course.
(Comparator
Acad. Trs. at 9–10.)
Students 2 and 5 each received grades of C or lower in
three Respiratory Care courses, (id. at 4–5, 11–13), but they
still are not similarly situated in all material respects
because one of those courses was Computers in Respiratory Care,
which did not count toward the two maximum Respiratory Care
courses in which a student could receive a grade of C or lower.
It is unclear whether the plaintiffs dispute that Computers in
Respiratory Care did not count toward the two maximum courses in
which a student could receive a grade of C or lower.
Molloy
asserted that fact in paragraph 7 of its Rule 56.1 statement,
21
which the plaintiffs denied explicitly on other grounds.
Pls.’ Rule 56.1 Counter Statement ¶ 7.)
(See
On one hand, the
plaintiffs acknowledged Computers in Respiratory Care as “only a
practice class that is allowed to be repeated until passed,”
(see id. p. 17), which would seem to concur with deposition
testimony from the Respiratory Program’s chairperson during the
relevant period, (see Fitzgerald Dep. Tr. 64:14–65:9, 70:4–
71:8).
On the other hand, the plaintiffs appear, at least
implicitly, to dispute Molloy’s assertions about Computers in
Respiratory Care by alleging as a comparator Student 5, who
would have been ineligible to continue in the Respiratory Care
Program if their initial C in that course had counted as a third
grade of C or lower in a Respiratory Care course.
Comparator Acad. Trs. at 12.)
(See
Regardless, the Court finds no
genuine dispute that Computers in Respiratory Care did not count
as a “third” grade of C or lower in a Respiratory Care course
during the relevant period.
The plaintiffs offered no evidence
contradicting Molloy’s deposition testimony on that issue.
Moreover, if Computers in Respiratory Care did count toward the
two-course maximum, Bacchus should have been academically
dismissed from the program after the Fall 2011 semester, when
she received her third C in a Respiratory Care course that
included Computers in Respiratory Care.
(See Bacchus Acad. Tr.)
Because Bacchus was not dismissed after that semester, the only
22
reasonable inference from the available evidence is that Molloy
applied the same standards to her with respect to the Computers
in Respiratory Care course that it applied to Students 2 and 5.
Finally, Student 2 was not rendered ineligible to complete
the Respiratory Care Program by receiving a WF, a C, and then a
B- in Respiratory Science I.
(See Comparator Acad. Trs. at 4.)
Molloy’s course catalog does not state that a WF counted toward
the two attempts a student was provided to achieve a C+ in a
Respiratory Care course.
(See Course Catalog p. 153.)
Further,
as the program’s chairperson during the relevant period
testified, a WF was considered “a withdrawal” and not a
completion.
(Fitzgerald Dep. Tr. 61:7–62:17.)
Thus, a student
who received a W or WF in a course and took it again for a C or
lower “could take it a third time” and would “have to get a C+”
or higher.
(Id. 62:15–17.)
To challenge the chairperson’s
testimony, the plaintiffs cited the testimony of Molloy’s
organizational representative that “a WF is an F,” (see ECF
No. 152-2, Flomenhaft Dep. Tr., 31:15–21), and the course
catalog’s statement that a WF is “[c]omputed as a failure,” (see
Course Catalog p. 50).
Those statements may be true to the
extent that Molloy counted a WF as a failure in terms of
calculating students’ grade point averages across all academic
programs; however, they are irrelevant to how the Respiratory
Care Program viewed grades of WF for purposes of assessing
23
compliance with its program-specific restrictions on repeating
courses.
Thus, the record lacks any evidence that would create
a genuine dispute as to whether the Respiratory Care Program
viewed grades of WF as counting toward the maximum number of
times a student could repeat a Respiratory Care course.
As Magistrate Judge Shields admonished in recommending that
the Court deny in part Molloy’s motion to dismiss, the fact that
the plaintiffs “alleged sufficient facts to survive dismissal”
did not imply that “their cases [would] survive summary
judgment.”
Minto II, 2021 WL 1394329, at *11.
Now, after the
parties have had a full opportunity to conduct discovery, the
evidence establishes that the academic “circumstances” regarding
the comparators “relied upon by [the plaintiffs] are very
different from their own.”
Id.
None of the evidence in the
record shows that the Respiratory Care program relaxed its
restrictions on repeating courses for any student, much less
that it did so on a discriminatory basis.
With no direct
evidence of discrimination and no evidence that similarly
situated comparators were treated more favorably than the
plaintiffs were treated, no reasonable jury could return a
verdict for the plaintiffs on their remaining claims.
Finally, the plaintiffs make arguments based on other
evidence, such as the sufficiency of their professors’ efforts
to accommodate students in the wake of Hurricane Sandy, errors
24
in the letters informing them of their dismissal from the
Respiratory Care Program, 6 and miscommunications regarding their
grade appeals following the Fall 2012 semester.
(See ECF
No. 151, Pls.’ Mem. Opp’n Summ. J., at 2–6; Pls.’ Rule 56.1
Counter Statement p. 17.)
The problem with those arguments is
that even assuming the plaintiffs were treated unfairly, such
evidence is irrelevant to proving a discrimination claim without
evidence that similarly situated students were not treated
unfairly in the same ways.
concept.
Discrimination is a comparative
LaBarbera v. NYU Winthrop Hosp., 527 F. Supp. 3d 275,
298 (2d Cir. 2021).
It requires the jury to determine whether
the defendant in fact treated otherwise like persons differently
based on protected characteristics.
Id.
Aside from the
transcripts of the comparator students, which the Court has
already determined do not support a reasonable inference of
differential treatment, the plaintiffs have offered no evidence
that might show Molloy treated the plaintiffs differently from
how it treated students who were not Black, female, or older.
The lack of such evidence would make it impossible for a jury to
find in the plaintiffs’ favor if their cases were to proceed to
a trial, so the Court must grant summary judgment for Molloy.
To be clear, regardless of whether the letters contained errors, the
plaintiffs in fact were ineligible to continue in the Respiratory Care
program under the program’s written academic standards, as explained above.
(See supra pp. 5–7.)
6
25
CONCLUSION
For the reasons stated above, the Court grants Molloy’s
motion for summary judgment on the plaintiffs’ remaining claims.
Molloy’s request for oral argument is denied as moot.
The Clerk of Court is respectfully requested to update the
caption to reflect that the defendant has been renamed from
“Molloy College” to “Molloy University,” enter judgment for
Molloy University, and close this case.
Molloy is respectfully directed to serve a copy of this
Memorandum and Order and the Judgment on the pro se plaintiffs
via email and FedEx and note service on the docket by 5:00 p.m.
on the day after the day that the Clerk of Court enters the
Judgment.
SO ORDERED.
Dated:
February 6, 2024
Brooklyn, New York
_______________________________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
26
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