Senno v. Elmsford Union Free School District et al
Filing
48
OPINION AND ORDER: For the reasons stated above, the Court (1) GRANTS the motion for summary judgment dismissing the claims against the individual defendants, Defendants Franks-Randall, Funny-Crosby, Evans and Lawrence; (2) GRANTS the motion for summ ary judgment dismissing Plaintiffs claims under New York state law; (3) GRANTS the motion for summary judgment dismissing Plaintiffs Title VII discrimination claim for failure to exhaust his administrative remedies as to that claim; and (4) DENIES th e motion for summary judgment dismissing Plaintiffs Title VII retaliation claim. The parties shall, by August 15, 2011, submit to the Court ajoint letter outlining any steps that need to be taken before the case is Ready for Trial. Absent the need fo r such steps, the case will be deemed Ready for Trial October 17, 2011. The parties must file a joint pretrial order by September 26, 2011. Counsel are directed to comply with this Court's Individual Rules. The parties shall advise the Court by September 26, 2011 whether they consent to trial of this case before a Magistrate Judge. (Signed by Judge Kimba M. Wood on 7/27/2011) (jfe)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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MICHAEL SENNO,
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Plaintiff,
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-against|
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ELMSFORD UNION FREE SCHOOL DISTRICT, |
CAROL FRANKS-RANDALL, individually,
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BETTY FUNNY-CROSBY, individually,
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MATTHEW R. C. EVANS, individually, and
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DEBRA B. LAWRENCE, individually,
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Defendants.
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08 Civ. 2156 (KMW)
OPINION and ORDER
KIMBA M. WOOD, U.S.D.J.:
Plaintiff Michael Senno (“Plaintiff”) brings this action pursuant to Title VII, 42 U.S.C. §
2000e et seq., against Defendants Elmsford Union Free School District (the “District”); Carol
Franks-Randall, individually (“Dr. Franks-Randall”); Betty Funny-Crosby, individually (“Ms.
Funny-Crosby”), Matthew R. C. Evans, individually (“Mr. Evans”); and Debra B. Lawrence,
individually (“Ms. Lawrence”) (collectively, the “Defendants”). Plaintiff alleges that Defendants
collectively violated his rights under Title VII by engaging in gender discrimination, and
retaliation for Plaintiff’s filing of a complaint with the Equal Employment Opportunity
Commission (“EEOC”).
Defendants move, pursuant to Rule 56 of the Federal Rules of Civil Procedure (“Rule
56”), for summary judgment dismissing the complaint. For the reasons stated below,
Defendants’ motion is GRANTED in part and DENIED in part, as to the District; and
GRANTED as to the individual Defendants.
1
I.
BACKGROUND
A.
Factual Background
1. Parties
Unless otherwise noted, the following facts are undisputed and are derived from the
parties’ Local Civil Rule 56.1 statements, affidavits, and other submissions. The Court construes
all evidence in the light most favorable to the non-moving party and draws all inferences in the
non-moving party’s favor.1 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 255 (1986).
Plaintiff is the former Deputy Superintendant for the District (Defendants’ Local Civil
Rule 56.1 Stmt. (hereinafter “Defs.’ 56.1 Stmt.”) ¶ 19.) He was appointed to that role in 2005,
having previously served as an Assistant Superintendant for Business Affairs for the District
since 1993. (Id. ¶¶ 1, 17.) He received tenure in approximately 1994. (Id. ¶ 2.) He was also the
District Clerk until January 2008, and was appointed a sexual harassment officer for the District
in 2005. (Id. ¶¶ 14, 15.) He occupied the role of Deputy Superintendent until disciplinary
charges were issued against him in February 2008, at which time he was suspended with pay
during the pendency of hearings pursuant to New York State Education Law § 3020-a (“Section
1
In a number of their Local Rule 56.1 Statement Responses, both parties neither admitted nor
denied a particular statement, but admitted that a particular statement was reflected in the other
party’s testimony. For example, Plaintiff states that he graduated with a degree in accounting
from Marist College. (Plaintiff’s Local Civil Rule 56.1 Statement (hereinafter “Pl.’s 56.1 Stmt.”)
¶ 335). Defendants’ response is “Admit that that was plaintiff’s testimony.” (Id.) Responses of
this nature, which do not point to any evidence in the record that may create a genuine issue of
material fact, do not function as denials, and will be deemed admissions of the stated fact. See
AFL Fresh & Frozen Fruits & Vegetables, Inc. v. De-Mar Food Services Inc., No. 06 Civ. 2142,
2007 WL 4302514, *4-5 (S.D.N.Y. Dec. 7, 2007) (citing Fed. R. Civ. P. 56(e); U.S. Info. Sys.,
Inc. v. Int’l Bhd. of Elec. Workers Local Union No. 3, No. 00 Civ. 4763, 2006 WL 2136249, at
*4 (S.D.N.Y. Aug. 1, 2006) (“To the extent the [responding party] proclaim[s] factual assertions
to be in dispute without identifying evidence in the record, [that party] thwart[s] the basic
purpose of [Local Rule 56.1].”); id. (holding that a tactic where the responding party “dispute[s]
the factual assertions . . . with objections alone” and fails to cite evidence “directly violates”
Rule 56.1.)).
2
3020-a” or “3020-a”). (Id. ¶¶ 231-32, 238.) Following the hearings, at the recommendation of
the Hearing Officer, in December 2009, Plaintiff’s job was terminated by vote of the District
Board of Education (the “Board”).
Defendant Franks-Randall was, at all times relevant to this case, the Superintendent of
the District, until her retirement in June 2008. (Id. ¶¶ 3, 9; Stern Declaration in Support of Defs.’
Motion for Summary Judgment (“Stern Dec.”) Exs. A and B, Complaint and Amended Answer.)
Defendants Funny-Crosby, Evans and Lawrence were, at all times relevant to this case,
members of the Board. (Stern Dec. Exs. A and B.)
2. Sequence of Events
The events relevant to this case began with a consensual sexual affair between Plaintiff
and another administrator in the district, Dr. Sandra Calvi-Muscente (“Dr. Calvi”). During the
affair, which lasted roughly from September 2005 through June 2007 (Defs. 56.1 Stmt. ¶¶ 61,
77), Dr. Calvi was the Assistant Principal of the District’s Junior / Senior High School. (Id. ¶
20.) At that time, she was also a member of the Board of Education of the Mahopac Central
School District. (Pl.’s 56.1 Stmt. ¶ 457.) She was also a District sexual harassment officer. (Id.
¶ 345.)
The parties vigorously dispute how to characterize where Plaintiff and Dr. Calvi sat in the
District hierarchy vis a vis one another. Plaintiff insists that he was not Dr. Calvi’s direct
supervisor and that they were not in the same chain of command. (Id. ¶¶ 346-351.) Defendants
state that, as Deputy Superintendent, Plaintiff was the second highest ranked official in the
District, that he had the authority to direct Dr. Calvi to do things, that she brought certain
disciplinary matters to his attention, and that he approved a percentage in the District budget for
Dr. Calvi’s raises. (Defs. 56.1 Stmt. ¶¶ 26-40.) Although the Court is not able to resolve all of
3
these factual disputes on this record, it is undisputed that Plaintiff was ranked higher in the
District hierarchy than Dr. Calvi, and that, although his job involved the business, rather than
instructional, aspects of District operations, he was also occasionally involved with supervision
(and discipline) of instructional staff. (Id. ¶¶ 42-50.)
The affair between Plaintiff and Dr. Calvi was kept secret until June 2007. (Id. ¶ 110.)
In fact, on two separate occasions – once in January 2006, and once in early June 2007 – Dr.
Franks-Randall asked Plaintiff directly if he was having an affair with Dr. Calvi, and both times
he denied it. (Id. ¶¶ 65-66, 103.) On June 4, 2007, Dr. Calvi informed Plaintiff’s wife of the
affair. (Id. ¶ 110.) On June 18, 2007, Plaintiff admitted to Dr. Franks-Randall that he had been
having an affair with Dr. Calvi. (Id. ¶ 111.) He also described his efforts to end the relationship,
as well as the alleged threats and harassment against him by Dr. Calvi during the dissolution of
the relationship. (Pl.’s 56.1 Stmt. ¶¶ 380-82.) At a meeting held that week between Plaintiff, Dr.
Franks-Randall, and an attorney for the District, the attorney stated that Dr. Calvi had the “trump
card” because Plaintiff was her superior, and that Dr. Calvi could therefore sue the District
and/or Plaintiff personally in connection with the affair. (Defs. 56.1 Stmt. ¶ 127; Pl.’s 56.1 Stmt.
¶¶ 389-90.)
Later in June 2007, Plaintiff apologized to the Board and to Dr. Franks-Randall for
engaging in the affair. (Defs. 56.1 Stmt. ¶ 132.) Initially, Dr. Franks-Randall and the Board
expressed support for Plaintiff and told him that they would forgive him for the affair. (Id. ¶
133.) Dr. Franks-Randall and members of the Board told Plaintiff that “everything was going to
be ok” and “it was all going to go away.” (Pl.’s 56.1 Stmt. ¶¶ 393.) Plaintiff received a 6%
salary raise at the end of June 2007. (Defs. 56.1 Stmt. ¶¶ 134.)
4
On August 14, 2007, Dr. Calvi approached Dr. Franks-Randall and attorneys for the
District to discuss Plaintiff’s handling of an earlier sexual harassment complaint Dr. Calvi had
made against another District employee, David Leis. In the course of that meeting, Dr. Calvi
also raised a series of other allegations of misconduct by Plaintiff, including, inter alia, that it
was Plaintiff who harassed her and made inappropriate comments to her during their
relationship; that Plaintiff shared certain confidential information with her; and that he had asked
her to perform a reading evaluation of his daughter. (Id. ¶¶ 135-60.) On August 20, 2007, Dr.
Franks-Randall and counsel for the district met with Plaintiff to question him about these new
allegations, but Plaintiff declined to answer questions and stated that he wanted to retain an
attorney. (Id. ¶¶ 164-67.) The next day, Plaintiff, through his attorney, filed a complaint with
the Equal Employment Opportunity Commission (“EEOC”) alleging “reverse sexual
harassment” by Dr. Calvi, and alleging that the District “has been made aware of [Dr. Calvi’s]
predatory sexual behavior . . . and has failed to take remedial, much less prompt remedial
action.” 2 (Stern Dec. Ex. U, EEOC Charge, Filed August 21, 2007.) That same day, Plaintiff’s
2
The EEOC Charge reads, in full:
I am a male employee of the Respondent School district, having been
continuously employed there for in exceess of fourteen years. My present job
position is Deptuy Superintendent. Over the course of the past several months I
have been targeted for reverse sexual harassment by one of the District
Administrators, Assistant (High School) Principal Sandra Calvi Muscente. She
has, through threats, sought to force me to maintain an unwanted sexual
relationship with her - - advising, in the presence of at least one District staff
member, that if I do not she would either destroy my marriage or cost me my
employment with the District. In that connection she has repeatedly harassed me
in the workplace, screaming about our ‘sexual relationship’ in the presence of
staff and within ear shot of students under circumstances intended to degrade
and/or coerce me. She has, also in that connection, attempted to imprison me in
my office, and badgered me in the High School gymnasium with obscenity laced
attacks. The District Administration has been made aware of her predatory sexual
behavior as directed at me and has failed to take remedial, much less prompt
5
counsel faxed a letter to Dr. Franks-Randall advising her that the EEOC complaint had been filed
and stating “that it is a violation of federal law to take adverse employment action against anyone
by reason of such a filing. Under these circumstances I suggest that no retaliation occur. For if
it does, we will immediately file a federal civil rights action . . . .” (Stern Dec. Ex. V.)
Thereafter, Plaintiff refused to answer further questions from Dr. Franks-Randall or counsel for
the District in connection with the affair or Dr. Calvi’s allegations. (Defs. 56.1 Stmt. ¶ 173.)
Dr. Franks-Randall brought Dr. Calvi’s allegations to the Board, and recommended that
the Board authorize an independent investigation into the allegations. (Id. ¶¶ 178-80.) The
Board authorized the investigation, and, in September 2007, retained the law firm of Jackson
Lewis LLP to conduct the investigation. (Id. ¶¶ 180, 182.) Michelle Phillips, Esq., of that firm,
performed the investigation, during the course of which she interviewed nine witnesses,
including Dr. Calvi, and reviewed documents and personnel files. (Id. ¶¶ 184-85.) Plaintiff
refused to participate in the investigation. (Id. ¶¶ 202-05.)
Ms. Phillips presented the results of the investigation to the Board in October 2007.
Based on the information provided by Dr. Calvi and others, Ms. Phillips determined that Plaintiff
had engaged in certain improper conduct and recommended that the District proceed with
dismissal charges pursuant to Section 3020-a.3 (Id. ¶¶ 214-29.)
remedial action. Under the premises I charge the District with violating my rights
as guaranteed by Title VII, 42 U.S.C. § 2000e et seq.
(Stern Dec. Ex. U.)
3
Defendants contend that prior to the issuance of any disciplinary charges, Plaintiff was given
the opportunity to resign his position with a payout, rather than face disciplinary charges.
Plaintiff denies this, and states that the opportunity to negotiate was not extended until after
disciplinary charges were preferred. (Defs. 56.1 Stmt. ¶ 325.) Defendants state that Plaintiff
declined the offer, which Plaintiff denies. (Id. ¶ 326.)
6
On February 6, 2008, the Board found probable cause to file disciplinary charges against
Plaintiff for (1) misconduct, (2) conduct unbecoming an administrator and (3) insubordination.
(Id. ¶¶ 231, 234.) The misconduct charge was supported by fifteen specifications of acts of
misconduct; the conduct unbecoming charge was supported by five specifications (all of which
were also included as specifications under the misconduct charge); and the insubordination
charge was supported by three specifications (all of which were also included as specifications
under the misconduct charge). (Stern Dec. Ex. Z, Disciplinary Charges, Issued Feb. 6, 2008.)
Ten days of hearings were held between August 5, 2008 and April 21, 2009 before a Hearing
Officer. (Defs. 56.1 Stmt. ¶ 238.) Both parties were represented by counsel, submitted briefs,
submitted evidence, and called witnesses. (Id. ¶¶ 239-244.) Plaintiff chose not to testify on his
own behalf. (Id. ¶ 245.)
On November 8, 2009, the Hearing Officer issued a decision, finding that four of the
fifteen specifications for the misconduct charge were substantial charges, and were substantiated
by the evidence, while the other eleven were not substantial and/or not substantiated. (See Stern
Dec. Ex. BB, Opinion and Award of Joel M. Douglas, Ph.D, Hearing Officer, In the Matter of
Disciplinary Proceedings Between the Elmsford Union Free School District and Michael Senno,
Respondent, SED File No: #10, 231 (hereinafter the “Decision”) at 28.) He also dismissed the
conduct unbecoming and insubordination charges as duplicative of the misconduct charge.
(Decision ¶¶ 51-52.) Based on the charges that were substantiated, the Hearing Officer
recommended that Plaintiff’s employment be terminated. (Defs. 56.1 Stmt. ¶ 281.) On
7
December 2, 2009, the Board accepted that recommendation and terminated Plaintiff.4 (Id. ¶
282.)
Dr. Calvi was never the subject of disciplinary charges under Section 3020-a in
connection with the events surrounding her affair with Plaintiff. (Pl.’s 56.1 Stmt. ¶ 541.) In the
summer of 2008, she voluntarily resigned her tenured position as Assistant Principal, and was
immediately rehired as the Director of Research and Development for the District under a threeyear contract with the same salary and benefits as her previous job.5 (Id. ¶¶ 543, 546.) In
connection with her new employment contract, she withdrew an EEOC complaint that she had
filed at some point in April or May of 2008.6 (Bellantoni Declaration in Opposition to
Defendants’ Motion for Summary Judgment (hereinafter “Bellantoni Dec.”) Ex. 2, Transcript of
3020-a Hearing, Dec. 16, 2008, at 56-57; Decision ¶ 57.)
3.
Allegations of Misconduct
Plaintiff’s claim is premised upon an allegation that he and Dr. Calvi were subject to
disparate treatment based on gender discrimination and retaliation by the District for Plaintiff’s
filing of an EEOC complaint. This claim will turn on whether Plaintiff and Dr. Calvi were
4
Plaintiff appealed the Decision in New York State Supreme Court, Westchester County. (Defs.
56.1 Stmt. ¶ 285.) The Decision was affirmed on February 1, 2010. (Id. ¶ 286.)
5
The parties dispute the degree to which her decision to resign her job as Assistant Principal was
voluntary. Defendants state that she was “asked to resign her tenured position as Assistant
Principal,” (Defs. 56.1 Stmt. ¶ 321), and that the Superintendent at that time determined that it
was the best course of action to reassign Dr. Calvi to a new position. (Defendants’ Response to
Pl.’s 56.1 Stmt. (hereinafter “Defs. 56.1 Resp.”) ¶ 542.) Plaintiff states that she did not lose her
position as Assistant Principal, but rather, according to her own testimony, she voluntarily gave
up the position to take on the new job. (Pl.’s 56.1 Stmt. ¶¶ 542-46.) Defendants concede that it
was Dr. Calvi’s decision to resign her position. (Defs. 56.1 Resp. ¶ 543.)
6
The record is a bit ambiguous on the timing with respect to this issue. The Hearing Officer’s
Decision states that the negotiation for Dr. Calvi’s new job took place in June 2007 (Decision ¶
57), but the Court believes that this is a typographical error. All of the other evidence in the
record on this issue shows that the EEOC complaint was filed in Spring 2008, and that the
negotiations regarding Dr. Calvi’s resignation and rehiring took place in Summer 2008.
8
similarly situated “in all material respects,” which, in turn, depends in part upon whether they
engaged in misconduct that was “of comparable seriousness.” Graham v. Long Island R.R., 230
F.3d 34, 39, 40 (2d Cir. 2000). Thus, the Court first reviews the alleged misconduct with which
the District charged Plaintiff, and then reviews the alleged misconduct of Dr. Calvi.
a. Conduct For Which Plaintiff Was Found Culpable by the Hearing
Officer
Plaintiff was found to have engaged in four acts of misconduct, which supported the
Hearing Officer’s recommendation of termination: (1) taking a “sick day” when in fact he was
not incapacitated from work due to illness; (2) requesting that Dr. Calvi do a reading evaluation
for his daughter, who was not a student in the District; (3) having sexual relations with Dr. Calvi
in the school building; and (4) disclosing to Dr. Calvi confidential information obtained in an
Executive Session of the Board, relating to negotiations with the District’s Administrator’s
Union, of which Dr. Calvi was a member.
As to the first two charges, the Hearing Officer found that they were substantiated by the
record, but were of minimal importance, and would not alone have supported Plaintiff’s
termination. (Decision ¶¶ 11, 50, 53.) The reading evaluation did not occur on school property
or during school time, and Defendants acknowledge that there is no policy or rule in place
prohibiting such an evaluation. (Pl.’s 56.1 Stmt. ¶ 403.) The Hearing Officer concluded that
“[t]he only objection to the entire event appeared [to be] that the Superintendent believed it to be
wrong.” (Decision ¶ 41.)
Regarding the sick day, the Hearing Officer concluded that the charge was proven, but
that there was “no support in the record that employees who take an unauthorized or unwarranted
sick day should be terminated,” and that there was no absence policy which requires a doctor’s
note or permission slip for missing a day of school. (Decision ¶ 39.)
9
At the same time, the Hearing Officer found that even in engaging in this more minor
misconduct, Plaintiff “continuously displayed poor judgment” (Decision ¶ 41), and that these
charges must be viewed in light of the “cumulative misconduct proven against him.” (Decision ¶
53.)
The Hearing Officer considered the other charges more serious, describing the accusation
of sexual activities on school property as being “of great concern” (Decision ¶ 29), and
concluding that Plaintiff’s engaging in such conduct “destroyed his ability to operate effectively
as Deputy Superintendent” and “violated the role model obligations expected of him.”7 (Decision
¶ 60.)
The Hearing Officer concluded that by far the “most serious” charge was that Plaintiff
revealed confidential Board information to Dr. Calvi during union negotiations. (Decision ¶ 40.)
Plaintiff now denies this charge completely (Stern Dec. Ex. C, Transcript of Deposition of
Michael Senno, at 201-09), but did not deny it at any point during the District’s investigation or
the 3020-a hearings. (Defs. 56.1 Stmt. ¶¶ 256-57.) Dr. Calvi stated that Plaintiff had disclosed
confidential information from executive sessions regarding union negotiations, and had told her
“what to ask for” during contract negotiations, including that she should seek a stipend because
she had obtained her doctorate. (Id. ¶¶ 158-60.) Dr. Calvi also provided a copy of a contract
proposal from the Administrator’s Union with handwritten markups that appear to suggest what
7
The Hearing Officer noted that a finding that Plaintiff engaged in sexual relations with Dr.
Calvi on school property meant that Dr. Calvi had also engaged in the same conduct, yet was not
the subject of any Section 3020-a charges. (Decision ¶¶ 29-30, 53.) In fact, the record shows
that, during the investigation, Dr. Calvi stated that she had additional information about
Plaintiff’s misconduct but would reveal that information only in exchange for immunity from
discipline with respect to that particular conduct. (Defs. 56.1 Stmt. ¶¶ 192-197.) The District
agreed to these terms, and Dr. Calvi revealed that she and Plaintiff had engaged in sexual
relations in the school building. (Id.) Thus, Dr. Calvi was not subject to any discipline in
connection with that incident.
10
the union should seek in their negotiations. (Id. ¶¶ 189.) Witnesses familiar with Plaintiff’s
handwriting, including Dr. Franks-Randall and Ms. Lawrence, testified to their belief that
Plaintiff had written the markups on the document. (Id. ¶¶ 157, 191, 219.)
The Hearing Officer found this charge substantiated, and noted that “[t]his type of
behavior where management is telling labor what kind of proposal they should be making was
viewed by the District as egregious and can independently serve as just cause for one’s
dismissal.” (Decision ¶ 20.) The Hearing Officer also noted that “this type of misconduct goes
to the very heart of the collective bargaining process.” (Decision ¶ 23.) The Hearing Officer
concluded that
[t]his clearly is a breach of trust and illustrative of remarkably poor judgment
displayed by [Plaintiff]. [Plaintiff] was entrusted with confidential information
and to use that knowledge in support of his lady friend in order to enable her to
gain additional compensation also reflects a lack of loyalty. [Plaintiff’s]
dedication must be with the District and not to a woman who [he] is, or was
having a personal relationship with. To put the “affair” ahead of his trusted
position is indicative of an individual who has lost virtually any semblance of
knowing what is correct behavior and what is not.
(Decision ¶ 40.)
The Hearing Officer concluded, based upon the misconduct for which Plaintiff was found
culpable that Plaintiff “has lost his ability to effectively function as a representative of the
Elmsford School District. His lack of sound judgment in engaging in the proven misconduct has
rendered him a liability to the District.” (Decision ¶ 60.)
b. Conduct For Which Plaintiff Was Not Found Culpable
Plaintiff was also charged with the following specifications under the misconduct charge:
(5) harassing Dr. Calvi through repeated phone calls, inappropriate comments, gifts, and by
ignoring job-related requests for assistance; (6) treating Dr. Calvi differently by refusing to meet
with her alone regarding District business; (7) and (8) lying to Dr. Franks-Randall about the
11
nature of his relationship with Dr. Calvi on two separate occasions during the affair; (9) failing to
recuse himself from meetings with Dr. Franks-Randall and Dr. Calvi regarding personal issues
related to Dr. Calvi while the affair was ongoing; (10) making inappropriate comments to Dr.
Calvi, including referring to her as a “whore,” asking who she was sleeping with, and asking if
she had “spread her legs for another man”; and (11) referring to Dr. Franks-Randall, who is
African-American, with a racial epithet in a private conversation with Dr. Calvi. Plaintiff was
also charged with a variety of misconduct connected to his handling of Dr. Calvi’s complaints of
sexual harassment by another District employee, David Leis, during the last months of the affair.
Specifically, Plaintiff was charged with (12) failing to report and process a sexual harassment
complaint regarding Mr. Leis as reported to him by Dr. Calvi on March 12, 2007; (13) failing to
recuse himself from the investigation and determination of the complaint on June 12, 2007,
notwithstanding the conflict of interest which had resulted from the dissolution of his personal
relationship with Dr. Calvi; and (14) failing to properly investigate and process the complaint
again on June 12, 2007. Finally, Plaintiff was charged with (15) filing an inaccurate report of an
altercation between Plaintiff and Dr. Calvi that took place in the hallway of the school on June
15, 2007 (the “June 15 Hallway Incident”). Specifically, Plaintiff did not report that Dr. Calvi
had used profanity during the argument (stemming from Plaintiff’s alleged failure to investigate
the Leis complaint to her satisfaction), which was overheard by students and other District
employees. (Stern Dec. Ex. Z.)
For each of these charges, the Hearing Officer found that there was insufficient evidence
to find Plaintiff culpable, and/or that the acts complained of were de minimis and inappropriate
for discipline under 3020-a.
c. Dr. Calvi’s Alleged Misconduct
12
Plaintiff makes a broad variety of allegations against Dr. Calvi, but the only conduct that
is relevant for comparing the District’s disciplinary action against her (or lack thereof) is conduct
that was known to the District. Accordingly, the Court considers only that alleged conduct.
1) Dr. Calvi lied repeatedly to Dr. Franks-Randall.
Defendants concede that Dr. Franks-Randall believed that Dr. Calvi lied to her
“repeatedly.” (Pl.’s 56.1 Stmt. ¶ 414.) Defendants also concede that the Board was informed
that Dr. Calvi lied to Dr. Franks-Randall on several occasions. (Id. ¶ 502.)
2) Dr. Calvi harassed and threatened Plaintiff during the affair.
Plaintiff alleges that, notwithstanding the charge that he harassed Dr. Calvi, it was Dr.
Calvi who harassed him over the course of their relationship, including threatening his career, his
family, and threatening to physically harm herself. Plaintiff states that he attempted to end the
relationship in October 2006, but because of these alleged threats, he felt “blackmailed” into
continuing the relationship through June 2007. However, much of this conduct was not brought
to the attention of Defendants, and so could not have been the basis of any disciplinary action
against Dr. Calvi. For example, Plaintiff claims that in March 2007, when he suggested that she
stay in a relationship with a different man instead of Plaintiff, Dr. Calvi became angry and threw
a District-owned cell phone at Plaintiff’s head, shattering it against a car window. (Id. ¶¶ 370,
373.) However, it is not clear when (if at all) this incident was brought to the attention of
Defendants.
Defendants were indisputably aware that Dr. Calvi had engaged in some of the same
behavior with which Plaintiff was charged, particularly making repeated phone calls to Plaintiff
in an alleged effort to keep the relationship going. Dr. Franks-Randall stated that this conduct
13
was “inappropriate.”8 (Id. ¶¶ 512-13.) Defendants were also made aware that on one particular
occasion, within earshot of another District employee, Dr. Calvi threatened Plaintiff, saying,
“Your wife or your job . . .” (Id. ¶¶ 369, 519.)
At the meeting when Plaintiff confessed to the affair to Dr. Franks-Randall, he informed
her of Dr. Calvi’s threats, although it is not clear precisely what he told her at that time. (Id. ¶
382.) During that conversation, Dr. Franks-Randall referred to Dr. Calvi’s behavior as similar to
the antagonist in the Paramount Pictures film, Fatal Attraction, wherein a scorned woman was
“distressed, angry . . . calling after [the man].” (Id. ¶ 380.)
3) Dr. Calvi engaged in misconduct during the June 15 Hallway Incident.
Plaintiff suggests that Dr. Calvi should have been subject to more extensive disciplinary
action in connection with the June 15 Hallway Incident.
Plaintiff cites to a memorandum written by two District employees who witnessed the
incident, and to a letter from another District employee who also witnessed the incident. The
memorandum, written at Dr. Franks-Randall’s request, states that the staff members heard Dr.
Calvi shouting at Plaintiff, using profanities and expletives, and that several students heard the
argument and asked about the disturbance (Id. ¶¶ 422-27; Bellantoni Dec. Ex. 6.) The letter, sent
to Dr. Franks-Randall and each member of the Board, describes the incident in similar terms.9
8
In fact, the Hearing Officer specifically noted that, although Plaintiff was accused of harassing
Dr. Calvi with repeated phone calls, the phone records suggested that the opposite was the case.
(Decision ¶ 36.) He also described the “alleged harassment by [Plaintiff] against Calvi” as “a
two-way street.” (Id. ¶ 35.)
9
Defendants state in their Local Rule 56.1 Response to these statements that the memorandum
and letter comprise inadmissible hearsay. A hearsay objection does not suffice as a denial of a
statement of undisputed fact. See U.S. Info. Sys., Inc., 2006 WL 2136249, at *4 (holding that a
tactic where one party “dispute[s] the factual assertions in the [other party's] corresponding
paragraphs with objections alone” and fails to cite evidence “directly violates” Rule 56.1.). In
any event, the statements in these documents are not being admitted for the truth stated therein,
but rather for the fact that Defendants received these descriptions of the incident.
14
(Pl.’s 56.1 Stmt. ¶¶ 428-30; Bellantoni Dec. Ex. 8.) Dr. Franks-Randall testified during the
3020-a hearing that she believed that Dr. Calvi had used profanity and had lied to her when she
denied doing so, that Dr. Calvi was disturbing the students during the incident, and that Dr.
Calvi’s conduct had a negative impact on Dr. Calvi’s image in the community. (Pl.’s 56.1 Stmt.
¶¶ 431, 432, 435.)
As a result of the incident, Dr. Franks-Randall placed a disciplinary letter in Dr. Calvi’s
file stating that Dr. Calvi’s behavior was “unconscionable,” “offensive,” and displayed “conduct
unbecoming an administrator,” and concluded: “While by far this is the worst display of your
inability to control your emotions, it isn’t the first time and I’m concerned that it won’t be the
last time.” (Defs. 56.1 Stmt. ¶ 124; Pl.’s 56.1 Stmt. ¶¶ 434, 436.) Dr. Franks-Randall also
banned Dr. Calvi from attending the high school graduation that year. (Defs. 56.1 Stmt. ¶ 125.)
4) Dr. Calvi was the subject of complaints from District staff and school parents.
Defendants concede that the District received numerous complaints about Dr. Calvi’s
conduct from both parents and staff.
Staff had complained to Dr. Franks-Randall about Dr. Calvi’s “bizarre behavior” on
school trips, and had complained about other aspects of Dr. Calvi’s performance as Assistant
Principal, including problems with the reporting of grades and inconsistency with respect to
student discipline. (Pl.’s 56.1 Stmt. ¶¶ 416-17, 453.)
Parents complained about a variety of aspects of Dr. Calvi’s conduct. Parents
complained to Dr. Franks-Randall and members of the Board that Dr. Calvi dressed
inappropriately for work.10 (Id. ¶¶ 413, 415.) Dr. Franks-Randall testified that parents wanted
10
Defendants state that when Dr. Franks-Randall raised this issue with Dr. Calvi, it was
immediately remedied. (Defs. 56.1 Resp. ¶¶ 413, 415.)
15
Dr. Calvi to be fired “because of her manner of dress, tone of voice, inconsistent disciplinary
measures and her use of profanity on multiple occasions.” (Id. ¶ 441.)
Parents in the community took the further step of presenting to the Board a signed
petition of “No Confidence” calling for Dr. Calvi’s termination at the July 3, 2007 meeting of the
Board. (Id. ¶¶ 443-45.) Parents threatened to have a local television news station report on the
fact that they wanted Dr. Calvi fired. (Id. ¶ 442.) Among the parents’ complaints were that Dr.
Calvi said demeaning things to the students, including calling them “thugs,” and that she had
emotional outbursts and yelled at and talked down to the students. (Id. ¶ 446.)
Dr. Franks-Randall and the Board also received a letter from the North Elmsford Civic
Association (“NECA”) expressing the community’s displeasure with Dr. Calvi’s “abusive
language, emotional outbursts and poor handling of sensitive issues with parents.” (Id. ¶ 445.)
Members of NECA also discussed concerns about Dr. Calvi at NECA meetings that were
attended by Board members. (Id. ¶ 452.)
A parent of a student also complained to Dr. Franks-Randall that her daughter witnessed
Dr. Calvi being inappropriately affectionate with her then-boyfriend, who was a fellow member
of the Mahopac Board of Education. (Id. ¶¶ 456, 459.) A different parent reported that her
daughter had witnessed Dr. Calvi banging on the door to the school weight room, yelling and
using profanities, and arguing loudly with a man inside the weight room (who was, in fact,
Plaintiff). Defendants claim that Dr. Franks-Randall investigated both of these incidents and
took all appropriate measures in response. (Defs. 56.1 Resp. ¶¶ 451, 469.)
5) Dr. Calvi yelled at, and used profanities with, the recruiter in charge of filling the
position for High School principal.
16
Plaintiff also pointed to an incident in the Spring of 2007, when the District was
interviewing candidates to fill the role of Principal at the high school (where Dr. Calvi was
Assistant Principal). The District employed a recruiting firm to undertake the process of filling
the position. The recruiter, Dr. Vincent Beni, interviewed Dr. Calvi for the position in March
2007, but she was not offered the position. Dr. Beni later complained to Dr. Franks-Randall that
when he informed Dr. Calvi over the phone that she would not be hired for the position, she
yelled at him and used profanities. (Pl.’s 56.1 Stmt. ¶¶ 483-85.) Dr. Franks-Randall discussed
this incident with the Board, but she never considered filing disciplinary charges against Dr.
Calvi in connection with this incident. (Id. ¶¶ 488-89, 520.)
6) Dr. Calvi was the subject of a sexual harassment complaint from a District employee.
Mark Barone, a network specialist for the District, filed a report stating that on one
occasion, Dr. Calvi put her arms around him, told him that she wanted to kiss him and tried to
kiss him. (Id. ¶¶ 474.) He rebuffed her advances, telling her that he was married, but she
allegedly persisted and asked him again to give her a “little kiss.” (Id. ¶¶ 475-76.) Mr. Barone
filed the report of this incident with Plaintiff in Plaintiff’s capacity as District sexual harassment
officer.
Defendants state that Mr. Barone did not report this incident at the time it occurred, but
rather, filed the report only at Plaintiff’s urging, two years after the fact, after Plaintiff’s affair
was made public. Defendants state that Plaintiff himself drafted the complaint for Mr. Barone’s
signature, and that when Mr. Barone met with Dr. Franks-Randall and counsel for the District, he
specifically stated that he did not want the matter to go any further. (Defs. 56.1 Resp. ¶¶ 474,
477-78.)
7) Dr. Calvi was arrested for assault on public school grounds.
17
In February 2008, Dr. Calvi was arrested for assault in the third degree following an
incident involving her ex-husband and ex-mother in law at Dr. Calvi’s son’s basketball game at a
school in the Mahopac School District. (Pl.’s 56.1 Stmt. ¶ 453.) The incident, and Dr. Calvi’s,
arrest were made public in a newspaper article. (Id. ¶ 455.) After her arrest, Dr. Calvi resigned
from the Mahopac School Board. (Id. ¶ 457.) The charges were ultimately adjourned in
contemplation of dismissal. (Id. ¶ 456.)
Dr. Franks-Randall testified at the 3020-a hearing that the arrest was the subject of talk
among District staff and administrators, and that Dr. Calvi’s conduct, arrest, and resignation
from the Mahopac School Board were embarrassing for the District. (Id. ¶¶ 458-60.) Dr. Calvi
was assigned to work from home from February 2008 through the end of that school year, due to
community concern about the incident. (Defs. 56.1 Stmt. ¶¶ 319, 320.) Dr. Calvi also ultimately
resigned her tenured position as Assistant Principal in connection with the incident, although the
parties dispute the degree to which this decision was voluntary. (Defs. 56.1 Stmt. ¶ 321; Pl.’s
56.1 Stmt. ¶¶ 542-46.)
B.
Procedural History
Plaintiff filed the instant Complaint on March 6, 2008, after the 3020-a disciplinary
charges were filed, but prior to the hearings and his termination.11 Defendants answered the
Complaint on April 24, 2008.
On December 10, 2008, discovery in the case was stayed pending the completion of the
3020-a hearings. After the issuance of the Hearing Officer’s decision in the 3020-a hearing in
November 2009, the parties engaged in discovery.
11
At the time the Complaint was filed, the case was before Hon. William C. Conner. The case
was transferred first to Hon. Denny Chin, and subsequently to Hon. Paul A. Crotty. The case
was transferred to the undersigned on September 30, 2010.
18
On April 13, 2010, Defendants filed an amended answer to the complaint, adding two
affirmative defenses. On July 23, 2010, Defendants filed the instant motion for summary
judgment on all claims.
II.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). An issue of fact is “genuine” if the evidence is such that a reasonable jury could
return a verdict for the non-moving party. SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133,
137 (2d Cir. 2009). A “material” fact is one that might “affect the outcome of the suit under the
governing law.” Id. The moving party bears “the burden of demonstrating that no material fact
exists.” Miner v. Clinton County, New York, 541 F.3d 464, 471 (2d Cir. 2008) (citing McCarthy
v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007)).
In resolving this inquiry, the Court must construe “the evidence in the light most
favorable to the non-moving party and draw[] all reasonable inferences in that party’s favor.”
Sledge v. Kooi, 564 F.3d 105, 108 (2d Cir. 2009) (citing Anderson, 477 U.S. at 247-50, 255); see
also Treglia v. Town of Manlius, 313 F.3d 713, 718-22 (2d Cir. 2002) (noting that on summary
judgment, a court must “resolve all ambiguities and draw all factual inferences in favor of the
non-movant” (citing Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001))). In opposing the
motion for summary judgment, the non-moving party may not rely on “conclusory allegations or
unsubstantiated speculation,” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998), or on mere
denials or unsupported alternative explanations of its conduct. See SEC v. Grotto, No. 05 Civ.
5880, 2006 WL 3025878, at *7 (S.D.N.Y. Oct. 24, 2006). Rather, the non-moving party must set
forth significant, probative evidence on which a reasonable fact-finder could decide in its favor.
19
Anderson, 477 U.S. at 256-57. To avoid summary judgment, all that is required of the nonmoving party is a showing of sufficient evidence supporting the claimed factual dispute as to
require a judge or jury’s resolution of the parties’ differing versions of the truth. See Kessler v.
Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 206 (2d Cir. 2006) (citing Anderson, 477
U.S. at 248-49).
The Second Circuit has also “emphasized that trial courts must be especially chary in
handing out summary judgment in discrimination cases, because in such cases the employer's
intent is ordinarily at issue.” Chertkova v. Connecticut General Life Ins. Co., 92 F.3d 81, 87 (2d
Cir. 1996).
III.
THRESHOLD ISSUES
A.
State Law and Title VII Claims Against Individual Defendants
Plaintiff initially brought state law claims under Section 296 of the New York State
Executive Law, but in his Opposition brief, he states that he is withdrawing those claims because
he did not file the requisite Notice of Claim in connection with the matter. (Opp. at 1 n. 2).
Thus, the state law claims are DISMISSED.
Defendants argue that the Title VII claims against the individual defendants must be
dismissed because Title VII does not provide for liability against individuals. In that regard,
Defendants are correct. See Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000)
(“[I]ndividuals are not subject to liability under Title VII.”); see also Mandell v. County of
Suffolk, 316 F.3d 368, 377 (2d Cir. 2003) (same). Further, Plaintiff did not address this argument
in his opposition papers, which operates as an abandonment of the argument. See Robinson v.
Am. Int’l Grp., Inc., 08 Civ. 1724, 2009 WL 3154312, at *4 & n.65 (S.D.N.Y. Sept. 30, 2009)
(collecting cases holding that where party fails to address arguments in opposition papers on
20
summary judgment motion, the claim is deemed abandoned). Thus, summary judgment
dismissing the claims against the individual Defendants is GRANTED.
B. Jurisdiction / Exhaustion of Administrative Remedies
Defendants first argue that Plaintiff’s Title VII claims must be dismissed for lack of
jurisdiction, because Plaintiff failed to exhaust his administrative remedies. The Court finds that
it has jurisdiction to hear Plaintiff’s claims, but that summary judgment with respect to that claim
is, nevertheless, GRANTED, because Plaintiff did not assert that claim before the EEOC.
Plaintiff’s retaliation claim, however, survives dismissal because it is reasonably related to the
charge that he did file with the EEOC.
1. Applicable Law
As an initial matter, Defendants are incorrect that a failure to exhaust administrative
remedies deprives a district court of jurisdiction to hear the Title VII claim. Although older
decisions did discuss the exhaustion requirement as a jurisdictional issue, see, e.g., Nweke v.
Prudential Ins. Co. of Am., 25 F. Supp. 2d 203, 214-16 (S.D.N.Y. 1998), the Second Circuit has
more recently clarified that “the failure to exhaust administrative remedies is a precondition to
bringing a Title VII claim in federal court, rather than a jurisdictional requirement.” Francis v.
City of New York, 235 F.3d 763, 768 (2d Cir. 2000) (internal quotation marks and citations
omitted). Thus, even though the Court has jurisdiction to hear Plaintiff’s Title VII claim, in
order to survive dismissal, Plaintiff must have “first pursue[d] available administrative remedies
and file[d] a timely complaint with the EEOC.” Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir.
2003). See also Legnani v. Alitalia Linee Aeree Italiane, S.P.A, 274 F.3d 683, 686 (2d Cir. 2001)
(“Exhaustion of administrative remedies through the EEOC is an essential element of the Title
21
VII and ADEA statutory schemes and, as such, a precondition to bringing such claims in federal
court.” (internal quotation marks omitted)).
A plaintiff may raise in a district court complaint “only those claims that either were
included in or are ‘reasonably related to’ the allegations contained in [his] EEOC charge.” Holtz
v. Rockefeller & Co., 258 F.3d 62, 82-83 (2d Cir. 2001) (quoting Butts v. City of New York Dep't
of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993)). The Second Circuit has recognized
three scenarios where a claim would be considered “reasonably related” to the allegations in an
EEOC charge: “[1] the claim would fall within the reasonably expected scope of an EEOC
investigation of the charges of discrimination; [2] it alleges retaliation for filing the EEOC
charge; or [3] the plaintiff ‘alleges further incidents of discrimination carried out in precisely the
same manner alleged in the EEOC charge.’” Alfano v. Costello, 294 F.3d 365, 381-82 (2d Cir.
2002) (quoting Butts, 990 F.2d at 1402-03).
The “reasonably expected scope” prong “is essentially an allowance of loose pleading
and is based on the recognition that EEOC charges frequently are filled out by employees
without the benefit of counsel and that their primary purpose is to alert the EEOC to the
discrimination that a plaintiff claims he is suffering.” Deravin, 335 F.3d at 201 (quotation marks
and citations omitted). The inquiry under this prong has been described as a “fact-intensive
analysis,” with a “focus . . . on the factual allegations made in the EEO[C] charge itself,
describing the discriminatory conduct about which a plaintiff is grieving.” Mathirampuzha v.
Potter, 548 F.3d 70, 76 (2d Cir. 2008) (citation omitted). “The central question is whether the
complaint filed with the EEOC gave that agency adequate notice to investigate discrimination on
both bases.” Williams v. New York City Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006) (per curiam)
(citations and quotation marks omitted). See also Walsh v. Nat’l Westminster Bancorp., Inc., 921
22
F. Supp. 168, 172 (S.D.N.Y. 1995) (holding that “the relevant inquiry” is not the plaintiff’s
“intent or her understanding of the effect of her complaint on a later lawsuit,” but rather
“whether the EEOC could reasonably be expected to investigate the sexual harassment claims
based on the allegations contained in the charge”).
Courts “have refused to consider allegations made for the first time in a complaint when
these new allegations make up the core of plaintiff’s claim.” Okon v. Appia, No. CV-06-6810,
2008 WL 2245431, at *9 (E.D.N.Y. May 29, 2008) (collecting cases). Courts have held that a
claim “based on a wholly different type of discrimination” than that asserted in the EEOC
charge—for example, a claim based on national origin discrimination where the EEOC charge
alleged only racial discrimination—will not be permitted. Solomon-Lufti v. Roberson, No. 97
Civ. 6024, 1999 WL 553733, at *4 (S.D.N.Y. July 29, 1999) (quoting Peterson v. Ins. Co. of N.
Am., 884 F. Supp. 107, 109 (S.D.N.Y. 1995)). Generally, courts dismiss claims that are so
qualitatively different from the allegations contained in an EEOC charge that an investigation
would not likely encompass the new allegations. See, e.g., Mathirampuzha, 548 F.3d at 74-78
(affirming dismissal of hostile work environment claim where EEOC charge alleged only a
single act of harassment/aggression); Nweke, 25 F. Supp. 2d at 214-16 (dismissing claims for
discriminatory policies based on race, sex or disability, and disparate impact of that policy on
female and disabled persons where EEOC charge contained only allegations of discriminatory
discharge and denial of union representation).
2.
Application
Plaintiff’s Complaint brings two claims under Title VII: discrimination based upon
gender, and retaliation for filing an EEOC charge. Plaintiff’s EEOC charge, filed August 21,
2007, checked the box marked “Sex” in the section headed “Cause of Discrimination / Based
23
On.” (Stern Dec. Ex. U.) That EEOC charge predated any disciplinary action by Defendants,
and, thus, does not contain any mention of discriminatory discipline.
The substance of Plaintiff’s EEOC charge is focused almost entirely on the allegedly
harassing conduct of Dr. Calvi. To the extent it mentions any Defendant at all, it does so only in
the context of the District’s failure to take remedial action regarding Dr. Calvi’s behavior. It
does not allege any discriminatory disciplinary action by any Defendant.
Although the disciplinary action alleged in the Complaint stemmed from the same sexual
affair that gave rise to Plaintiff’s EEOC complaint, there is nothing to suggest that an EEOC
investigation into the remedial action taken by Defendants with regard to Dr. Calvi’s conduct
would address disciplinary action later taken against Plaintiff. See Miller v. Int’l Tel. & Tel.
Corp., 755 F.2d 20, 25-26 (2d Cir. 1985) (holding that “[t]here would be no reason for the EEOC
to investigate [a] failure to rehire in connection with the claim of alleged discriminatory
discharge unless the former were asserted as part of that claim”). And although the category of
protected class – sex – is the same in the EEOC charge and the Complaint, failure to remedy
sexual harassment and discriminatory discipline are “entirely distinct theor[ies] of liability,”
predicated on totally different acts. Walsh, 921 F. Supp. at 172. See Alfano, 294 F.3d at 381-82
(affirming dismissal of complaint regarding discipline, when EEOC charge “made no allegation
regarding unfounded disciplinary action”). “Judicial claims which serve to amplify, clarify or
more clearly focus earlier EEO complaints are appropriate. Allegations of new acts of
discrimination, offered as the essential basis for the requested judicial review are not
appropriate.” McGuire v. U.S. Postal Serv., 749 F. Supp. 1275, 1287 (S.D.N.Y. 1990) (citation
and internal quotation marks omitted).
24
The Second Circuit has made clear that the exhaustion of administrative remedies is “an
essential element of Title VII's statutory scheme.” Butts, 990 F.2d at 1401. Plaintiff could have
filed an additional charge with the EEOC after it became apparent that he would be subject to
disciplinary action. Instead, the month after the disciplinary charges were filed against him,
Plaintiff filed the instant Complaint. Because he failed to exhaust his administrative remedies,
his claim for gender discrimination must be dismissed.
Not all of Plaintiff’s Title VII claim is dismissed, however. The Complaint alleges both
discrimination and retaliation. A claim is “reasonably related” to an EEOC charge when it
alleges retaliation for the filing of the EEOC charge. Id. at 1402. The instant Complaint does so
allege. Thus, the preconditions for Plaintiff’s retaliation claim have been met. See Legnani, 274
F.3d at 687 (reversing dismissal of retaliation claim because it was reasonably related to the
initial discrimination charge filed with the EEOC); Pierre v. New York State Dep’t of Corr.
Servs., No. 05 Civ. 275, 2009 WL 1583475, at *9 (S.D.N.Y. June 1, 2009) (dismissing
discrimination claims that were not reasonably related to allegations in EEOC charge, but
allowing claim of retaliation for filing of EEOC charge to survive).
C.
Collateral Estoppel
Defendants argue that Plaintiff’s claims are barred by the doctrine of issue preclusion
because of the Hearing Officer’s decision in the Section 3020-a hearing. The Court agrees that
3020-a Hearings are entitled to be given preclusive effect, but holds that giving them that effect
does not estop Plaintiff from asserting his claims.
1.
Applicable Law
“Under the Full Faith and Credit Act, 28 U.S.C. § 1738, federal courts must give statecourt judgments the same preclusive effect as they would receive in courts of the same state.”
25
Burkybile v. Bd. of Educ. of the Hastings-on-Hudson Union Free Sch. Dist., 411 F.3d 306, 310
(2d Cir. 2005). “New York courts give quasi-judicial administrative fact-finding preclusive
effect where there has been a full and fair opportunity to litigate.” Id. (citing Ryan v. New York
Tel. Co., 62 N.Y.2d 494, 467 N.E.2d 487 (N.Y. 1984)).
In Burkybile, the Second Circuit held that a Section 3020-a Hearing, such as the one in
this case, is an “administrative adjudication that must be given preclusive effect.” Id. at 311-12.
The court, quoting the Supreme Court’s decision in University of Tennessee v. Elliott, 478 U.S.
788, 799 (1986), held that “when a state agency acting in a judicial capacity resolves disputed
issues of fact properly before it which the parties have had an adequate opportunity to litigate,
federal courts must give the agency’s factfinding the same preclusive effect to which it would be
entitled in the state’s courts.” Burkybile, 411 F.3d at 312.
2.
Application of Law to this Case
Under Burkybile, the 3020-a Hearing in this case is entitled to preclusive effect, and thus,
Plaintiff is estopped from challenging any of the factual findings made during that proceeding.
Those findings, however, do not bar Plaintiff’s claims. Collateral estoppel applies only if “the
issue in question was actually and necessarily decided in a prior proceeding.” Colon v.
Coughlin, 58 F.3d 865, 869 (2d Cir. 1995). It is undisputed that the 3020-a hearing did not
directly address any of Plaintiff’s claims of retaliation or discrimination. Indeed, the Decision
does not at any point mention Plaintiff’s EEOC filing.12 The Decision mentions that “the matter
of Calvi not being disciplined was raised by counsel” for Plaintiff, but that the Hearing Officer’s
“jurisdiction is limited to the charges preferred against [Plaintiff] and not Calvi . . . .” (Decision
12
In fact, during the course of the proceedings, Plaintiff’s counsel attempted to question Dr.
Franks-Randall about Plaintiff’s filing of the EEOC charge, but counsel for the District objected.
The Hearing Officer sustained the objection and cut off the questioning on that issue. (Stern
Dec. Ex. J, Transcript of 3020-a Hearing, Dec. 1, 2008, at 137:5-16.)
26
¶ 54, n. 25.) Thus, because Plaintiff’s retaliation claim was expressly not decided at the hearing,
he is not estopped from pursuing that claim now. See Morey v. Somers Cent. School Dist., No.
06 Civ. 1877, 2007 WL 867203, *5 (S.D.N.Y. Mar. 21, 2007) (holding that where “the record of
administrative hearing is devoid of any evidence that the issue of retaliation was actually
litigated and necessarily decided,” collateral estoppel did not bar the plaintiff’s retaliation
claims); see also Raniola v. Bratton, 243 F.3d 610, 624 (2d Cir. 2001) (holding that an
administrative finding concerning a plaintiff’s termination “could have preclusive effect on her
Title VII claim in federal court only if [she] had unsuccessfully sought to contest her discharge . .
. leading to a judgment on the same claim or issue” (emphasis added)).
Contrary to Defendant’s argument, a finding that Plaintiff was terminated for cause does
not bar Plaintiff’s Title VII claim. Even if Plaintiff cannot dispute the factual findings of the
Hearing Officer’s decision, Plaintiff can still prevail if he shows that Defendants acted with an
improper motive in bringing charges against Plaintiff. See Gordon v. New York City Bd. of
Educ., 232 F.3d 111, 117 (2d Cir. 2000) (“It is . . . settled that a plaintiff in a Title VII action
need not disprove a defendant’s proffered rationale for its adverse actions in order to prevail.”
(emphasis added) (citing Fields v. New York State Office of Mental Retardation &
Developmental Disabilities, 115 F.3d 116, 120 (2d Cir. 1997) (“Title VII plaintiff can prevail by
proving that an impermissible factor was a ‘motivating factor,’ without proving that the
employer’s proffered explanation was not some part of the employer’s motivation.”))).
Accordingly, the Court proceeds to the merits of Plaintiff’s claim.
IV.
RETALIATION CLAIM
Retaliation claims under Title VII are analyzed using the three-step burden shifting
framework first outlined by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.
27
792, 802-04 (1973). See Coffey v. Dobbs Int’l Servs., Inc., 170 F.3d 323, 326 (2d Cir. 1999)
(noting that McDonnell Douglas analysis applies in Title VII retaliation cases). The plaintiff
must first establish a prima facie case, by presenting evidence sufficient to permit a rational trier
of fact to find
[1] that []he engaged in protected participation or opposition under Title VII, [2]
that the employer was aware of this activity, [3] that the employer took adverse
action against the plaintiff, and [4] that a causal connection exists between the
protected activity and the adverse action, i.e., that a retaliatory motive played a
part in the adverse employment action.
Cifra v. General Electric Co., 252 F.3d 205, 216 (2d Cir. 2001) (citation and quotation marks
omitted). The Second Circuit has characterized the plaintiff’s prima facie burden as “minimal”
and “de minimis.” Woodman v. WWOR-TV, 411 F.3d 69, 76 (2d Cir. 2005) (quoting
Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001)). “In determining
whether this initial burden is satisfied in a Title VII retaliation claim, the Court's role in
evaluating a summary judgment request is to determine only whether proffered admissible
evidence would be sufficient to permit a rational finder of fact to infer a retaliatory motive.” Jute
v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005) (citing Donahue v. Windsor
Locks Bd. of Fire Comm’rs, 834 F.2d 54, 58 (2d Cir. 1987)). “[A] plaintiff may not rely on
conclusory assertions of retaliatory motive to satisfy the causal link. Instead, he must produce
some tangible proof to demonstrate that [his] version of what occurred was not imaginary.”
Cobb v. Pozzi, 363 F.3d 89, 108 (2d Cir. 2004) (internal citation omitted).
If the plaintiff satisfies his prima facie burden, a presumption of retaliation arises, and the
burden of production shifts to the defendant to proffer a “legitimate, non-retaliatory reason for
the adverse employment action.” Jute, 420 F.3d at 173. The defendant’s burden at this step has
been characterized as “light.” Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998).
28
It is a burden of production, not persuasion, and thus does not involve a credibility assessment.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). “The employer need not
persuade the court that it was motivated by the reason it provides; rather it must simply articulate
an explanation that, if true, would connote lawful behavior.” Greenway, 143 F.3d at 52 (citation
omitted).
If the defendant proffers a legitimate, non-discriminatory reason for the adverse action,
the presumption of retaliation drops out, and the burden shifts back to the plaintiff to show that
“retaliation was a substantial reason for the adverse employment action.” Jute, 420 F.3d at 173.
A.
Plaintiff’s Prima Facie Case
The Court finds that Plaintiff has successfully made out a prima facie case of retaliation.
1.
Protected Activity, Defendants’ Knowledge of Same
As to the “protected activity” element of a Title VII retaliation claim, the plaintiff need
only “have had a good faith, reasonable belief that he was opposing an employment practice
made unlawful by Title VII.” Kessler, 461 F.3d at 210 (quoting McMenemy v. City of Rochester,
241 F.3d 279, 285 (2d Cir. 2001)). He need not prove the underlying discrimination allegations.
There is no dispute that Plaintiff engaged in protected activity and that Defendants were
aware of the activity. Plaintiff filed an EEOC charge of gender discrimination on August 21,
2007. (Defs. 56.1 Stmt. ¶ 328.) On the same day, Plaintiff’s attorney sent a letter to Dr. FranksRandall informing her that Plaintiff had filed the EEOC charge. (See Ex. V.)
2.
Adverse Employment Action
Plaintiff has also shown that he was subject to an adverse employment action.
An “adverse employment action” for purposes of a retaliation claim is one that “a
reasonable employee would have found . . . materially adverse, which in this context means it
29
well might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-69 (2006) (citation
and quotation marks omitted). “Adverse employment actions in the context of a retaliation claim
cover a broader range of conduct than in the discrimination context.” Gentile v. Potter, 509 F.
Supp. 2d 221, 238-39 (E.D.N.Y. 2007) (citing Burlington N., 548 U.S. 53). Thus, unlike a
plaintiff alleging discrimination, Plaintiff need not show that the purported adverse action is “one
that affects the terms, privileges, duration, or conditions of employment.” Yerdon v. Henry, 91
F.3d 370, 378 (2d Cir. 1996). See Burlington N., 548 U.S. at 64 (holding that “adverse
employment action” in the retaliation context “is not limited to discriminatory actions that affect
the terms and conditions of employment”).
Disciplinary charges were issued against Plaintiff on February 6, 2008, a formal 3020-a
hearing took place over the course of a year and a half, and thereafter, his employment with the
District was terminated.13 Defendants argue, in the context of Plaintiff’s discrimination claim
that “the mere initiation of disciplinary charges does not constitute an adverse employment
action for the purposes of Title VII.” (Defs.’ Mem. of Law in Support of Motion for Summary
Judgment (hereinafter “Defs. Mem.”), at 13 (citing Carter v. New York City Dep’t of Corr., 7 F.
App’x 99, 103 (2d Cir. 2001)).) But that standard does not apply in the retaliation context. To
support his retaliation claim, Plaintiff need show only that the action “well might have dissuaded
a reasonable worker from making or supporting a charge of discrimination.” Burlington N., 548
U.S. at 68 (citation and quotation marks omitted).
The Second Circuit has held that the filing of disciplinary charges against a New York
school district employee, with the “threat of a Section 3020-a hearing” could have such a
13
Defendant does not base his Title VII claim on his termination, but rather on the initiation of
disciplinary action against him. (See Stern Dec., Ex. A, Complaint, ¶¶ 14-15.)
30
deterrent effect. Burkybile, 411 F.3d at 313-14 (holding in the context of retaliation for
exercising First Amendment Rights). Not only does a Section 3020-a hearing permit suspension
(with pay) and carry with it the threat of possible termination, but it also requires the employee to
“incur the expense and inconvenience of extensive litigation.” Id. at 314. The Second Circuit
held that “[s]uch consequences are clearly deterrents for even a person of ordinary firmness.” Id.
The filing of disciplinary charges against Plaintiff resulted in his immediate suspension,
over a year of litigation, and ultimately his termination. Thus, the Court finds that Plaintiff has
shown that he suffered adverse employment action.
3.
Causation
The Court also finds that Plaintiff has met his “minimal” burden to establish a causal
connection between his protected activity and the adverse action. Woodman, 411 F.3d at 76.
Plaintiff does not point to any direct evidence of retaliatory animus, but the indirect evidence is
sufficient to meet his burden.
a. Applicable Law
Although proof of causal connection can be shown directly, “through evidence of
retaliatory animus directed against a plaintiff by the defendant,” it is well settled that causation
can also be established indirectly, “by showing that the protected activity was followed closely
by discriminatory treatment, or through other evidence such as disparate treatment of fellow
employees who engaged in similar conduct.” DeCintio v. Westchester Cnty. Medical Ctr., 821
F.2d 111, 115 (2d Cir. 1987) (internal citations omitted).
First, a plaintiff can show causation indirectly by showing a “close temporal relationship
between a plaintiff’s participation in protected activity and an employer’s adverse actions.”
Treglia, 313 F.3d at 720. The Second Circuit “has not drawn a bright line to define the outer
31
limits beyond which a temporal relationship is too attenuated to establish a causal relationship . .
. .” Gorman-Bakos v. Cornell Coop. Extension of Schenectady Cnty., 252 F.3d 545, 554 (2d Cir.
2001). However, courts have typically held that two to four months is the “outer edge of what
courts in this circuit recognize as sufficiently proximate to admit of an inference of causation.”
Woods v. Enlarged City Sch. Dist. of Newburgh, 473 F. Supp. 2d 498, 529 (S.D.N.Y. 2007)
(quoting Yarde v. Good Samaritan Hosp., 360 F. Supp. 2d 552, 562 (S.D.N.Y. 2005) and
collecting cases). The Second Circuit has also described the prima facie test as “demanding only
that the protected activity preceded the adverse action,” and some courts have found a
sufficiently close temporal relationship where the adverse action occurred well over four months
after the protected activity. Raniola, 243 F.3d at 624. See id. (holding that filing of EEOC
charge in July 1995 and termination in September 1996 was sufficient to meet prima facie case);
Burkybile, 411 F.3d at 314 (noting that an inference of retaliatory intent has been found in cases
involving a gap of as long as eight months).
In order to show disparate treatment, a plaintiff must show that he was “similarly situated
in all material respects” to those with whom he seeks to compare himself. Graham, 230 F.3d at
39. The determination of whether or not two employees are “similarly situated” for purposes of
this test is ordinarily a question of fact for the jury, Feingold v. New York, 366 F.3d 138, 154 (2d
Cir. 2004), though this rule is “not absolute . . . and a court can properly grant summary
judgment where it is clear that no reasonable jury could find the similarly situated prong met.”
Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 n.2 (2d Cir. 2001).
In Graham, the Second Circuit elaborated on what “all material respects” means in
determining whether two employees are “similarly situated,” holding that the concept
varies somewhat from case to case and . . . must be judged based on (1) whether
the plaintiff and those he maintains were similarly situated were subject to the
32
same workplace standards and (2) whether the conduct for which the employer
imposed discipline was of comparable seriousness. In other words there should
be an objectively identifiable basis for comparability.
230 F.3d at 40 (citations omitted). See also Norville v. Staten Island Univ. Hosp., 196 F.3d 89,
95-96 (2d Cir. 1999) (“In order for employees to be similarly situated for the purposes of
establishing a plaintiff's prima facie case, they must have been subject to the same standards
governing performance evaluation and discipline and have engaged in conduct similar to the
plaintiff's, without such differentiating or mitigating circumstances that would distinguish their
conduct or appropriate discipline for it.” (internal quotation marks and citation omitted)).
The Second Circuit has also cautioned that “the standard for comparing conduct requires
a reasonably close resemblance of the facts and circumstances of plaintiff's and comparator's
cases, rather than a showing that both cases are identical.” Graham, 230 F.3d at 40. In other
words, the other employee’s situation need only be “sufficiently similar to plaintiff's to support at
least a minimal inference that the difference [in treatment] may be attributable to [retaliation].”
McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001).
b. Application of Law to Facts
Plaintiff filed his EEOC charge on August 21, 2007 and disciplinary charges were filed
February 6, 2008. (Defs. 56.1 Stmt. ¶ 231.) The disciplinary charges followed an independent
investigation that was initiated in September 2007, shortly after Plaintiff filed the EEOC charge.
Although there is no dispute that the disciplinary charges stemmed from the same set of
circumstances that gave rise to his EEOC charge (i.e., Plaintiff’s affair with Dr. Calvi), the
temporal proximity – six months – might not be sufficient in itself to establish causation. The
Court need not resolve this question, however, because Plaintiff does not rely solely on temporal
proximity to show causation.
33
Plaintiff ultimately bases his retaliation claim on a theory of disparate treatment of
similarly situated employees. Specifically, Plaintiff alleges that Dr. Calvi had committed acts of
misconduct, of which Defendants were aware, that were no less serious than the acts for which
Plaintiff was charged, and yet Dr. Calvi was not subject to the same disciplinary action. In fact,
although Dr. Calvi resigned her tenured job as Assistant Principal, she was immediately re-hired
to a new position with the same salary and benefits (albeit with a three year contract, instead of
tenure).
In addition, although both Plaintiff and Dr. Calvi filed EEOC complaints, Plaintiff
appears to have been treated more harshly than Dr. Calvi afterwards. Shortly after Plaintiff filed
an EEOC complaint he became a target of an investigation that ultimately resulted in disciplinary
charges and his termination. Dr. Calvi filed an EEOC complaint, but withdrew it in connection
with an employment agreement for a new job that granted her the same benefits as her previous
job.14
The parties vigorously dispute whether Plaintiff and Dr. Calvi were “similarly situated.”
Plaintiff argues (1) that both he and Dr. Calvi were subject to the same procedures and standards
for discipline and performance evaluation, given that they were both District administrators; and
(2) that Dr. Calvi engaged in conduct similar to his, if not more egregious than his, without
mitigating circumstances that could distinguish their conduct.
Plaintiff has made the requisite minimal showing that he and Dr. Calvi were “subject to
the same workplace standards.” Graham, 230 F.3d at 40. It is undisputed that Plaintiff was
ranked higher than Dr. Calvi (even though the parties dispute the degree to which he could also
14
The record is ambiguous as to the precise sequence of events concerning when, exactly, Dr.
Calvi filed and withdrew her EEOC claim in comparison to when she negotiated her resignation
and re-hiring. The record shows that Dr. Calvi filed her claim in the Spring of 2008, and that she
withdrew the claim prior to her entering into the employment contract.
34
be characterized as her supervisor). However, in a broad sense, both were senior administrators
in the District, and it is fairly arguable that both engaged in serious misconduct by any standard
of discipline for those positions.
Plaintiff has also made the requisite minimal showing that he and Dr. Calvi engaged in
conduct “of comparable seriousness.” Id. Several of the acts of misconduct with which Plaintiff
was charged are identical to acts of misconduct by Dr. Calvi of which the District was aware.
For example, Plaintiff was charged with lying to Dr. Franks-Randall about the nature of his
relationship on two separate occasions, but Defendants acknowledge that Dr. Calvi “lied
repeatedly” to Dr. Franks-Randall. Plaintiff was charged with making repeated phone calls and
inappropriate comments to Dr. Calvi, but Defendants were aware that Dr. Calvi had made
repeated phone calls to Plaintiff and had repeatedly threatened him during the dissolution of their
relationship. Finally, Plaintiff was subject to 3020-a discipline for filing an incomplete account
of his altercation with Dr. Calvi in the school hallway because he failed to describe the full scope
of her inappropriate behavior in his report. But Dr. Calvi was not subject to the same type of
disciplinary charges, notwithstanding that she was the one who actually engaged in that
inappropriate behavior.
Plaintiff also points out that Dr. Calvi was the subject of extensive, serious complaints
from District staff, parents and community members, including a petition of “No Confidence”
signed by school parents and submitted to the Board. Dr. Calvi was also the subject of at least
one sexual harassment complaint. Finally, Dr. Calvi was arrested for assaulting her ex-husband
and ex-mother in law on the property of a public school. Yet, Dr. Calvi was not subject to 3020a disciplinary charges, and was instead allowed to voluntarily resign her position, and was given
a new position that paid the same salary and offered the same benefits as her prior job.
35
Although Defendants point to many mitigating factors to cast doubt on whether Plaintiff
and Dr. Calvi are “similarly situated,” under the Graham test, the Second Circuit has instructed
courts to consider only the plaintiff’s evidence in determining whether a Title VII retaliation
claimant has met his initial prima facie burden. See Graham, 230 F.3d at 42; Conway v.
Microsoft Corp., 414 F. Supp. 2d 450, 460 (S.D.N.Y. 2006). Further, the circuit has
characterized Plaintiff’s burden at this stage as “minimal” and “de minimis.” Woodman, 411
F.3d at 76. In light of this, the Court finds that Plaintiff has satisfied his minimal burden to show
disparate treatment for purposes of a prima facie case. The burden thus shifts to Defendants to
present a legitimate, non-discriminatory reason for the adverse employment action.
B.
Defendants’ Burden to Show a Legitimate, Non-Retaliatory Reason For
the Adverse Employment Action
The Court finds that Defendants have readily satisfied their burden of showing a
legitimate, non-retaliatory reason for the adverse employment action. Defendants state that the
District brought disciplinary charges against Plaintiff only after an independent investigation
found that he had committed acts of serious misconduct. Plaintiff refused to participate in the
investigation, and so Defendants acted on the only information available to them in preferring
disciplinary charges against Plaintiff. Defendants also argue that because the initial investigation
into Dr. Calvi’s accusations preceded Plaintiff’s filing of the EEOC charge it could not possibly
be retaliatory.
The Hearing Officer’s decision also supports Defendant’s argument. It is well settled that
administrative charges decided against a plaintiff present a legitimate reason for discipline. See,
e.g., Raniola, 243 F.3d at 624-25 (explaining that “a prior administrative finding may supply a
non-discriminatory reason for an employment discharge under the familiar McDonnell Douglas
burden shifting framework” and holding that the plaintiff’s administrative termination for cause
36
served as a legitimate, non-discriminatory reason). Here, the Hearing Officer found that Plaintiff
engaged in four instances of misconduct, the most serious of which was a breach of
confidentiality of Board information during union negotiations. The Hearing Officer ultimately
determined that Plaintiff’s misconduct “per se render[ed him] unfit to continue in his position.”
(Decision ¶ 62.) The Hearing Officer concluded that Plaintiff’s actions rose “to the level of
misconduct for which termination is warranted,” and that “the judgement [sic] of the District was
correct in terms of the imposition of discipline.” (Id.) Thus, Defendants have met their burden
to show a legitimate, non-retaliatory reason for the adverse employment action taken against
Plaintiff.
C.
Plaintiff’s Burden to Show Retaliatory Intent
Because Defendants have shown a legitimate, non-retaliatory reason for disciplining
Plaintiff, the presumption of retaliatory intent “completely drops out of the picture.” James v.
New York Racing Ass’n, 233 F.3d 149, 154 (2d Cir. 2000) (citation omitted). The Court must
“examin[e] the entire record to determine whether the plaintiff could satisfy his ultimate burden
of persuading the trier of fact that the defendant intentionally [retaliated] against plaintiff.”
Woodman, 411 F.3d at 76 (citation and quotation marks omitted).
The Court finds that there are genuine issues of fact that preclude summary judgment on
whether Plaintiff can show retaliatory intent. Viewing the evidence in the light most favorable to
Plaintiff, and drawing all reasonable inferences in his favor, the Court finds that a reasonable
jury could find (1) that Plaintiff was similarly situated to Dr. Calvi; (2) that they were subject to
disparate treatment; and (3) the circumstances show that retaliation was a substantial motivating
factor for Defendants’ action. Thus, summary judgment on this issue is DENIED.
1.
Applicable Law
37
The most common way for a plaintiff to prevail at this stage is to show that Defendants’
proffered reason was a pretext for a retaliatory motive, but a plaintiff alleging “that the employer
acted with mixed motives is not required to prove that the employer’s stated reason was a
pretext.” Holcomb v. Iona Coll., 521 F.3d 130, 142 (2d Cir. 2008). Indeed, “it is . . . settled that
a plaintiff in a title VII action need not disprove a defendant’s proffered rationale for its adverse
actions in order to prevail.” Gordon, 232 F.3d at 117. Rather, a plaintiff is required to prove
only “that a retaliatory motive played a part in adverse actions toward him, whether or not it was
the sole cause.” Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 92 (2d Cir.
2011) (citing Terry v. Ashcroft, 336 F.3d 128, 140–41 (2d Cir. 2003) (quotation marks omitted)).
See also Holcomb, 521 F.3d at 142 (“[A] plaintiff alleging that an employment decision was
motivated both by legitimate and illegitimate reasons may establish that the ‘impermissible
factor was a motivating factor, without proving that the employer’s proffered explanation was
not some part of the employer’s motivation.’” (quoting Fields, 115 F.3d 116 at 120)); Back v.
Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 123 (2d Cir. 2004) (“[T]o defeat
summary judgment within the McDonnell Douglas framework the plaintiff is not required to
show that the employer’s proffered reasons were false or played no role in the employment
decision, but only that they were not the only reasons and that the prohibited factor was at least
one of the ‘motivating’ factors.” (citation omitted)). Even where a plaintiff has been found
guilty in administrative disciplinary proceedings, if the defendant was “motivated by retaliatory
animus [in initiating the disciplinary proceedings], Title VII would be violated even though there
were objectively valid grounds for the proceeding and the resulting discharge.” DeCintio, 821
F.2d 111 at 116, n.8.
38
Although the plaintiff need not show that the retaliatory motive was the sole cause of the
adverse employment action, retaliation must be “at least a substantial or motivating factor.”
Raniola, 243 F.3d at 625 (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 287 (1977)).
2.
Application of Law to Facts
Plaintiff argues that, even if the District ultimately had “objectively valid grounds” to
discipline him, DeCintio, 821 F.2d at 116 n.8, retaliation was a substantial motivating factor in
bringing the charges. To support this claim, Plaintiff relies on a theory of disparate treatment,
arguing that Dr. Calvi was not subject to the same discipline, despite engaging in comparable
conduct.
Defendants argue that Plaintiff was not subject to disparate treatment for three principal
reasons: (1) Plaintiff and Dr. Calvi were not “similarly situated” because he was her superior
within the District hierarchy; (2) Plaintiff and Dr. Calvi were not “similarly situated” because
Plaintiff’s misconduct was more egregious than Dr. Calvi’s alleged misconduct; and (3) any
alleged misconduct by Dr. Calvi was investigated and handled appropriately. Defendants also
argue that the investigation of Plaintiff’s misconduct predated his EEOC claim, which,
Defendants argue, was only filed as a strategic gambit to set up a retaliation claim.
a. Same Workplace Standards
Defendants argue that Plaintiff cannot meet the first prong of the Graham test for
“similarly situated” employees, because Plaintiff and Dr. Calvi held different positions, at
different levels of authority in the District hierarchy, and thus were not “subject to the same
workplace standards.” 230 F.3d at 40. In particular, Defendants argue that, as Deputy
Superintendent, Plaintiff was the second highest ranking employee in the District, and was Dr.
39
Calvi’s superior, whereas Dr. Calvi was only an Assistant Principal. Thus, Defendants argue,
even if Plaintiff and Dr. Calvi engaged in identical behavior (for example, making repeated
phone calls to each other), it was reasonable to discipline him more severely because Plaintiff
was Dr. Calvi’s superior. (Defs. Mem. at 14.)
Plaintiff disputes Defendant’s characterization. While he concedes that he was Dr.
Calvi’s superior, he contends that he had no direct supervision or control over Dr. Calvi, and had
no actual control over her pay raises or evaluations. (Pl.’s 56.1 Stmt. ¶ 349.) Pointing to the
District organizational chart, Plaintiff contends that that the Deputy Superintendent is ranked on
the same “level” as Assistant Superintendents, High School Principals and Elementary
Principals, and that the Assistant Principal position falls in the High School Principal’s chain of
command, not that of the Deputy Superintendent. (Id. ¶ 353; Stern Dec. Ex. M.) He argues that
both he and Dr. Calvi were subject to the same disciplinary procedures and standards for school
administrators under Section 3020-a.
Much of this dispute turns on interpretation of the Parties’ deposition testimony regarding
the structure of the District’s hierarchy and the exact contours of Plaintiff’s duties. Although it is
not disputed that Plaintiff was ranked higher than Dr. Calvi, there are genuine issues of fact as to
the precise hierarchical relationship between them. The factual question for the jury to resolve
is, ultimately, whether the District, as a matter of policy, held Plaintiff and Dr. Calvi to different
“workplace standards” of behavior and discipline. Graham, 230 F.3d at 40.
Defendants point to decisions granting summary judgment to employers that turned on
the fact that the plaintiff and the party being compared to the plaintiff were at different levels of
authority. However, many of those cases involve discrimination claims based on a failure to
promote, which, unlike a claim based on discrimination, requires a stronger showing of similarity
40
before jobs may be found to be comparable. Compare Bush v. Fordham Univ., 452 F. Supp. 2d
394, 410 (S.D.N.Y. 2006) (holding that, for failure-to-promote claim, plaintiff and comparing
employee must “share a sufficient amount of significant employment characteristics,” including
“similarities in education, seniority, performance, and specific work duties”) and Roa v. Mineta,
51 F. App’x 896, 899 (2d Cir. 2002) (holding that two employees in failure-to-promote claim are
not similarly situated because “their duties and responsibilities were materially different”) with
Graham, 230 F.3d at 40 (holding that standard for discriminatory discipline case is (1) whether
the employees “were subject to the same workplace standards” and (2) whether the employees’
conduct “was of comparable seriousness”).
Defendants also note that Plaintiff and Dr. Calvi reported to different supervisors. This
consideration is less important in the wake of the Graham decision, although some decisions
have continued to treat it as a relevant inquiry. See Conway v. Microsoft Corp., 414 F. Supp. 2d
450, 465 (S.D.N.Y. 2006) (collecting post-Graham cases from this circuit that considered
whether employees reported to the same supervisor in determining whether they were similarly
situated for purposes of retaliation claim). Although this consideration may be relevant in some
cases, it is not dispositive here, where, even though Plaintiff and Dr. Calvi reported directly to
different supervisors, the same people – Dr. Franks-Randall and the Board – were ultimately
responsible for disciplining both of them. Cf. id. at 466 (granting summary judgment against
plaintiff where “a different decisionmaker was responsible for investigating and determining
how to discipline” the other employee).
Defendants’ argument that two employees could be disciplined differently for the same
conduct where one is the other’s superior is well taken. But Defendant has not submitted
evidence showing that there is no genuine issue of material fact as to whether Plaintiff and Dr.
41
Calvi were, in fact, subject to different workplace standards. A reasonable jury could find that,
as tenured administrators, Plaintiff and Dr. Calvi were subject to the same standards of discipline
and behavior.
b. Comparable Seriousness of Conduct
The Court holds that a reasonable jury could find that Plaintiff and Dr. Calvi engaged in
conduct that was of “comparable seriousness.” Graham, 230 F.3d at 40.
Defendants argue that Plaintiff’s misconduct was more egregious than any alleged
misconduct by Dr. Calvi. In particular, Defendants point out that Plaintiff was “entrusted with
strict confidences by the Board of Education, being privy to information discussed at secret
executive session of the Board.” (Defs. Mem. at 14.) According to Defendants, “Dr. Calvi did
not do anything that approached the breach of the confidence of the Board as plaintiff had done.”
(Id. at 16.) The Hearing Officer’s decision to recommend termination was plainly driven by this
particular act, which he stated was “indicative of an individual who has lost virtually any
semblance of knowing what is correct behavior and what is not.” (Decision ¶ 40.)
The argument that the breach of confidentiality was more serious than any alleged
misconduct by Dr. Calvi is a compelling one, but the charges against Plaintiff were not limited to
this one act of misconduct. Looking at the full range of alleged misconduct with which Plaintiff
was charged, it is apparent that much of it was similar to the conduct in which Dr. Calvi engaged
(and about which Defendants knew). For example, Plaintiff was charged with lying to Dr.
Franks-Randall, and harassment in connection with the break-up of the affair. Dr. FranksRandall conceded that she was fully aware that Dr. Calvi had engaged in the same conduct.15
15
The most obvious misconduct that Plaintiff and Dr. Calvi engaged in equally was, of course,
having sexual relations with one another in the school building. However, as explained supra,
the fact that Dr. Calvi had received immunity regarding this incident under a separate agreement
42
Further lending support to an inference of retaliatory motive is that several of the acts of
misconduct relied upon by Defendants in bringing charges against Plaintiffs had previously been
deemed by Defendants to be so unremarkable that they did not prevent the Board from giving
Plaintiff a raise at the end of June 2007. It was only later, after Plaintiff filed his EEOC claim,
on August 21, 2007, that Defendants claimed that those acts of misconduct supported their
seeking Plaintiff’s termination. Specifically, (1) Dr. Franks-Randall knew that Plaintiff had
previously asked Dr. Calvi to perform a reading evaluation of his daughter at the time it
happened in 2005; (2) Dr. Franks-Randall learned on June 18, 2007, when the affair was
revealed, that Plaintiff had previously lied about the nature of his relationship with Dr. Calvi; (3)
because Dr. Franks-Randall knew about Plaintiff’s relationship with Dr. Calvi as of June 18,
2007, she knew as of that date that Plaintiff allegedly should have recused himself from certain
meetings and investigations related to Dr. Calvi during the course of their affair; and (4) soon
after the affair was revealed on June 18, Dr. Franks-Randall became aware that Plaintiff had filed
an incomplete report of the June 15 Hallway Incident because they specifically discussed his
desire to rewrite or amend the report with the District’s counsel at a meeting held that week
(Defs. 56.1 Stmt. ¶¶ 119-22.) Although the most serious charges against Plaintiff were based
upon information not known to Defendants until August 2007, the inclusion of the
aforementioned charges could support a finding that Defendants were motivated to bring
disciplinary charges in part by Plaintiff’s filing of the EEOC charge.
Support for such a finding could also be found in the fact that Defendants charged
Plaintiff with several acts of misconduct that were “de minimis” and inappropriate for discipline
makes it irrelevant for purposes of the disparate treatment analysis. At the same time, the fact
that the District readily agreed to grant Dr. Calvi immunity in order to build the case against
Plaintiff could lend further support to the conclusion that Defendants acted with a retaliatory
motive.
43
under Section 3020-a, according to the Hearing Officer. For example, although the Hearing
Officer found that Plaintiff had taken a “sick” day on a day when he was not ill, he concluded
that there was no District policy that such misconduct could support an employee’s termination.
(Decision ¶ 39.) As to the reading evaluation of Plaintiff’s daughter, the Hearing Officer noted
that it could be “looked upon as a friend doing a favor for a friend. . . .[O]ne might surmise that
in the field of education, as well as any professional field whether it be law or medicine,
professionals often do favors for other professionals.” (Id. ¶ 50.) As to some of the charges
regarding Plaintiff’s alleged treatment of Dr. Calvi in connection with the relationship, the
Hearing Officer noted that “[h]ow couples break up or choose to end a relationship is a personal
choice; however, it is rarely, if ever the subject of disciplinary charges.” (Id. ¶ 13.) And
regarding Plaintiff’s alleged failure to investigate Dr. Calvi’s sexual harassment complaint, the
Hearing Officer noted that “[i]f [Plaintiff] failed to complete his duty then it behooved the
District to take corrective action related to performance failure. To make this Specification the
subject of a 3020(a) charge was not convincing.” (Id. ¶ 14.)
Ultimately, the Court concludes that it should be for a jury to determine whether Dr.
Calvi and Plaintiff engaged in comparably serious conduct. A reasonable jury could find that
Plaintiff’s misbehavior was no more serious than that of Dr. Calvi, that each deserved
comparable discipline, and that failure to treat them similarly was due to retaliation for Plaintiff
having filed an EEOC complaint. See Graham, 230 F.3d at 43 (holding that a jury could find
that one employee’s violation for excessive absenteeism was comparable to another employee’s
violation for alcohol use in light of the relevant workplace standards).
c. Disparate Treatment
44
Defendants argue that any alleged misconduct by Dr. Calvi was investigated and handled
appropriately, thus the treatment of Plaintiff and Dr. Calvi was not disparate. However, genuine
issues of material fact preclude summary judgment on this issue.
Defendants contend that Dr. Franks-Randall investigated each alleged act of misconduct
by Dr. Calvi and took all appropriate steps. For example, Plaintiff argues that Dr. Calvi was the
subject of complaints because her wardrobe was inappropriately revealing, but Defendants
contend that after Dr. Franks-Randall spoke to Dr. Calvi about this issue, it was no longer a
problem. After the hallway altercation with Plaintiff, Dr. Franks-Randall placed a disciplinary
letter in Dr. Calvi’s file, and Dr. Calvi was banned from attending graduation. Dr. FranksRandall followed up with Mark Barone regarding his sexual harassment complaint against Dr.
Calvi, but Mr. Barone himself declined to pursue the matter further. And after Dr. Calvi’s arrest,
she was assigned to work from home for the duration of the school year and ultimately lost her
tenured job as Assistant Principal.
The parties dispute the circumstances surrounding Dr. Calvi’s resignation as Assistant
Principal. Defendants contend that the Superintendent decided to reassign Dr. Calvi to another
position, presumably as a result of the various complaints against her. However, Defendants
concede that it was Dr. Calvi’s decision to resign from her position as Assistant Principal. (Pl.’s
56.1 Stmt. ¶ 543.) Dr. Calvi testified at her deposition that she resigned because the new
position had different responsibilities that appealed to her. (Id. ¶ 544.) And it is undisputed that
Dr. Calvi received a three-year contract with the same benefits and salary that she received in her
position as Assistant Principal. (Id. ¶ 546.)
The timing of this new employment agreement is particularly troubling to the Court. The
record shows that Dr. Calvi herself had filed an EEOC complaint in Spring 2008, but that she
45
withdrew that complaint in conjunction with the new employment agreement. (Bellantoni Dec.
Ex. 2 at 56-57; Decision ¶ 57.) A reasonable jury viewing these circumstances could conclude
that Dr. Calvi engaged in misconduct, but upon withdrawing her EEOC complaint, got away
with a mere “slap on the wrist.” Meanwhile, Plaintiff filed an EEOC complaint, refused to
resign his position or withdraw the complaint, and was met with disciplinary charges that
ultimately resulted in his termination. A reasonable jury could further conclude that, had
Plaintiff withdrawn his EEOC complaint, he may have received the same treatment as Dr. Calvi.
The timing of Plaintiff’s filing of the EEOC charge immediately after hearing about the
investigation into his conduct potentially weakens his case, and a jury may be persuaded that that
alone defeats any inference of retaliatory motive. But given the facts that Dr. Calvi and Plaintiff
both committed acts of misconduct and both filed EEOC complaints, but were then treated so
differently when one maintained the complaint while the other withdrew it, a reasonable jury
could conclude that Defendants acted with a retaliatory motive.
Accordingly, summary judgment on this issue is DENIED.
V.
CONCLUSION
For the reasons stated above, the Court (1) GRANTS the motion for summary judgment
dismissing the claims against the individual defendants, Defendants Franks-Randall, FunnyCrosby, Evans and Lawrence; (2) GRANTS the motion for summary judgment dismissing
Plaintiff’s claims under New York state law; (3) GRANTS the motion for summary judgment
dismissing Plaintiff’s Title VII discrimination claim for failure to exhaust his administrative
remedies as to that claim; and (4) DENIES the motion for summary judgment dismissing
Plaintiff’s Title VII retaliation claim.
46
The parties shall, by August 15,2011, submit to the Court ajoint letter outlining any
steps that need to be taken before the case is Ready for Trial. Absent the need for such steps, the
case will be deemed Ready for Trial October 17, 2011. The parties must file a joint pretrial order
by September 26,2011. Counsel are directed to comply with this Court's Individual Rules. The
parties shall advise the Court by September 26,2011 whether they consent to trial of this case
before a Magistrate Judge.
SO ORDERED.
Dated: New York, New York
July 27,2011
!~m.~
Kimba M. Wood
United States District Judge
47
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