Lorenz v. Erie Community College et al
Filing
39
DECISION AND ORDER. IT IS HEREBY ORDERED that Defendants' 31 Motion for Summary Judgment is GRANTED. FURTHER, the Clerk of Court is directed to close this case. Signed by United States District Judge William M. Skretny on 6/10/2018. (JCM)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
WILLIAM A. LORENZ,
Plaintiff,
v.
DECISION AND ORDER
14-CV-210S
ERIE COMMUNITY COLLEGE, et al,
Defendants.
I.
INTRODUCTION
Plaintiff, William A. Lorenz, brings this action against Defendants Erie Community
College (“ECC”), Martha Dixon, Edward Holmes, and Mary Beard, asserting claims under
the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”); Age Discrimination
in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et seq., and New York State
Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq. 1 Defendants have moved
for summary judgment, seeking dismissal of Lorenz’s claims under Federal Rule of Civil
Procedure 56. For the reasons discussed below, Defendants’ motion is granted and the
claims are dismissed.
II.
BACKGROUND 2
Lorenz has been employed at ECC as a full-time professor of Economics in the
Department of Social Studies since 1984. During the relevant period, his supervisor was
1
The Complaint also states a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq., but the parties do not address the claim in the motion papers and it appears to have been abandoned.
In any event, there is no Title VII claim here, as Lorenz alleges discrimination only on the basis of age and
disability. See, e.g., Murphy v. Bd. of Educ. of Rochester City Sch. Dist., 273 F. Supp. 2d 292, 314 n. 20
(W.D.N.Y. 2003) (disability and age discrimination claims are not cognizable under Title VII).
2 The facts are derived principally from the parties’ Local Rule 56 Statements, the parties’ declarations, and
exhibits attached thereto. Only the facts necessary to the resolution of the motions are recounted below.
The facts are undisputed unless otherwise stated.
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Defendant Beard, who served as the Assistant Academic Dean of Liberal Arts. Defendant
Holmes served as the Associate Vice President for Academic Affairs, and Defendant
Dixon was the Director of Distance Learning and oversaw Lorenz’s use of online courses.
Ray Barker, who is not a Defendant, was the head of the department in which Lorenz
taught.
Lorenz was born in 1953 and suffers from pulmonary disability and cervical
radiculopathy, which impact his ability to breathe and to walk. Lorenz asserts that these
issues were well-known at ECC, but Defendants claim they were not aware that Lorenz
suffered from any disability. Lorenz contends that Dixon, in particular, was aware of his
afflictions. In the spring of 2012, Lorenz alleges that he staggered while walking past
Dixon in the hall and she looked “like she had seen a ghost” and did not acknowledge
him.
In the Fall Semester of 2012, Lorenz was scheduled to teach five “seated” or inperson classes, as well as two online classes. Because five classes made up a full course
load, Lorenz not only met the minimum to receive his regular salary, but also received
additional compensation for the two “over load” courses. During the semester, Dixon
states that a student came to her with a concern regarding Lorenz’s online course. Dixon
states that the student told her that the course was lacking in content and could be
finished in one weekend, and the student was concerned she would not gain an
appropriate knowledge base from the course. Based on this report, Dixon accessed
Lorenz’s online course and found that the content was lacking and that the format was
not ADA compliant. For example, Lorenz used scanned exam files that would not be
compatible with the voice recognition software used by blind students. Lorenz admits
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that the exam format was not ADA compliant, but disputes that the content was lacking.
Lorenz also disputes that a concern was brought to Dixon’s attention, contending that
Dixon invented the complaint as a means to target him.
Dixon brought her findings regarding Lorenz’s online course to Beard and Barker,
who then brought the matter to Holmes. With input from the union, the Defendants and
Barker made the decision to remove Lorenz’s scheduled online classes until he had met
certain requirements to ensure that the course contained appropriate content and was
ADA compliant. In order that Lorenz would not lose income, Beard offered to allow him
to teach two additional classes until he was able to meet the requirements to regain his
online classes. Lorenz contends that this was a hollow offer, as he was not able, due to
his lung condition, to teach additional in-person classes. He further contends that, when
he told Dixon that he needed his online courses because he didn’t have the lung capacity
to teach any more seated courses, Dixon indicated to him that perhaps it was time to
consider retiring. Dixon disputes making any comments regarding retirement.
Lorenz asserts that, once he changed his tests and put them in ADA-compliant
formatting, his online courses met all of ECC’s mandatory requirements. Lorenz further
asserts that he was treated differently than the other online faculty and singled out,
because the requirements he was directed to fulfill in order to reinstate his online teaching
privileges were “guidelines” for other online professors at ECC, including those who were
not disabled. He contends that Defendants did not assess whether other ECC faculty
members’ online courses were compliant and that no other faculty members were
required to meet the requirements imposed on him. Defendants contend that the decision
to take away Lorenz’s online courses was due to noncompliance, and not to age or
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disability, and that they did not examine other online courses for compliance because
there were no complaints about those courses.
On November 14, 2012, Lorenz filed a union grievance regarding the loss of his
online courses. The grievance cites several articles of the Faculty Federation of ECC
Collective Bargaining Agreement, including the provisions related to online and distance
learning. It does not cite Article 7, which sets forth the anti-discrimination policy, nor does
the grievance otherwise mention age, disability, or any form of discrimination.
Lorenz filed a complaint with the Equal Employment Opportunity Commission on
September 24, 2013, alleging age and disability discrimination.
Upon receiving a
dismissal and notice of right to sue, he brought this action on March 26, 2014. Lorenz’s
online courses were ultimately restored in the Fall of 2015, when ECC changed to a new
software platform for online courses.
III.
LEGAL STANDARDS
“A motion for summary judgment may properly be granted . . . only where there is
no genuine issue of material fact to be tried, and the facts as to which there is no such
issue warrant the entry of judgment for the moving party as a matter of law.” Kaytor v.
Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010). A court’s function on a summary
judgment motion “is not to resolve disputed questions of fact but only to determine
whether, as to any material issue, a genuine factual dispute exists.” Id. (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)).
For the purposes of summary judgment motion practice, a fact is considered
material “if it might affect the outcome of the suit under the governing law,” and an issue
of fact is “genuine” where “the evidence is such that a reasonable jury could return a
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verdict for the nonmoving party.” Holtz v. Rockefeller & Co. Inc., 258 F.3d 62, 69 (2d Cir.
2001) (internal quotation marks and citations omitted). “[M]ere conclusory allegations or
denials . . . cannot by themselves create a genuine issue of material fact where none
would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (internal
quotation marks and citation omitted). “As to issues on which the non-moving party bears
the burden of proof, the moving party may simply point out the absence of evidence to
support the non-moving party’s case.” Nora Beverages, Inc. v. Perrier Group of Am., Inc.,
164 F.3d 736, 742 (2d Cir. 1998).
IV.
DISCUSSION
Lorenz claims that ECC discriminated and retaliated against him based on age
and disability.
A.
Discrimination Claims
“The burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-04, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), governs claims of
discrimination under [both] the ADA [and the] ADEA.” Ben-Levy v. Bloomberg, L.P., 518
Fed. App’x 17, 18 (2d Cir. 2013); see also Gorzynski v. JetBlue Airways Corp., 596 F.3d
93, 110 (2d Cir. 2010) (noting that claims for age based-discrimination brought pursuant
to the ADEA are analyzed under the burden-shifting framework of McDonnell Douglas
Corp. v. Green); Primmer v. CBS Studios, Inc., 667 F. Supp. 2d 248, 256 (S.D.N.Y. 2009)
(“Disability discrimination claims under the ADA are analyzed under the familiar burdenshifting framework established by the Supreme Court in McDonnell Douglas Corp. v.
Green.”). “Under the McDonnell Douglas framework, the plaintiff must first establish a
prima facie case of discrimination . . . [a] plaintiff meets that burden by showing that (1)
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[he] was within the protected [category], (2) [he] was qualified for [his] position, (3) [he]
suffered an adverse employment action, and (4) that action took place in circumstances
giving rise to an inference of discrimination.” Holtz, 258 F.3d at 76-77 (internal quotation
marks and citations omitted). With respect to the final factor, “[a] showing of disparate
treatment—that is, a showing that the employer treated plaintiff less favorably than a
similarly situated employee outside his protected group—is a recognized method of
raising an inference of discrimination for purposes of making out a prima facie case.”
Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003) (internal quotation marks
and citation omitted).
“By making out this ‘minimal’ prima facie case, even without evidence of
discrimination, the plaintiff creates a presumption that the employer unlawfully
discriminated . . . and thus places the burden of production on the employer to proffer a
nondiscriminatory reason for its action.” James v. New York Racing Association, 233
F.3d 149, 154 (2d Cir. 2000) (internal quotation marks and citations omitted). If the
employer is able to proffer a nondiscriminatory reason, “the presumption [of
discrimination] evaporates and the plaintiff must prove that the employer's proffered
reason was a pretext for discrimination.” McPherson v. NYC Dep't of Educ., 457 F.3d
211, 215 (2d Cir. 2006).
Assuming, arguendo, that Lorenz has made out a prima facie case for his
discrimination claims, 3 the claims nevertheless fail as a matter of law because Defendants
have proffered legitimate, nondiscriminatory reasons for their actions. Lorenz argues,
3
For the purposes of the analysis here, this Court assumes, but does not decide, that Lorenz has satisfied
the “adverse action” element of this inquiry and that his health conditions render him an individual with a
disability within the meaning of the ADA.
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without supporting evidence, that Dixon made up the student complaint in order to justify
having targeted his online courses. But, even if that were the case, it is undisputed that
the materials in the online course were not ADA compliant, as required by ECC. Further,
Holmes, Beard, and Barker agreed with Dixon that the course lacked appropriate content
and did not meet ECC’s minimum standards. “Unsatisfactory job performance is a
legitimate nondiscriminatory ground for discipline.” Mark v. Brookdale Univ. Hosp., No.
04-CV-2497 (JBW), 2005 WL 1521185, at *27 (E.D.N.Y. June 22, 2005).
When a plaintiff sets forth a prima facie case of discriminatory motive, and the
defendant satisfies its burden of production with admissible evidence showing a
legitimate, non-discriminatory justification, “[t]he plaintiff must produce not simply some
evidence, but sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the defendant were false, and that more likely than
not discrimination was the real reason for the employment action.”
Weinstock v.
Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (alterations and internal quotation marks
omitted). Although Lorenz criticizes and questions Defendants' reasoning for removing
his online classes, he has pointed to no admissible evidence, other than a single comment
regarding retirement and his own feelings, to support his assertion that Defendants’
proffered rationale is actually a pretext for discrimination. These are not a sufficient basis
to demonstrate that Defendants’ proffered reasons are pretexts for discrimination. See
Moore v. Verizon, No. 13-CV-6467 (RJS), 2016 WL 825001, at *8 (S.D.N.Y. Feb. 5, 2016)
(“[S]tray remarks, even if made by a decision maker, do not constitute sufficient evidence
to support a case of employment discrimination.”); Polo v. Xerox Corp., No. 10-CV-6288FPG, 2014 WL 317171, at *5 (W.D.N.Y. Jan. 28, 2014) (“Plaintiffs feelings and beliefs are
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not substitute for persuasive evidence that identifiable, valid comparators were treated in
a meaningfully different manner.” (internal quotation marks omitted)).
Moreover,
“discussion of retirement is common in offices, even between supervisors and employees,
and is typically unrelated to age discrimination.” Hamilton v. Mount Sinai Hosp., 528 F.
Supp. 2d 431, 447 (S.D.N.Y. 2007).
Courts are not permitted to second-guess an employer's evaluative business
determinations, such as the one ECC made in this case.
See, e.g., Phipps v.
Comprehensive Community Development Corp., No. 00CV6063-RJH, 2005 WL 287413,
at *18 (S.D.N.Y. Feb. 4, 2005) (“it is well settled that courts should not second-guess the
good-faith business determinations and criteria that employers adopt in running their
organizations”); Maturine v. American Intern. Group, Inc., No. 04CV9064-GBD, 2006 WL
2347806 (S.D.N.Y. Aug. 14, 2006) (“It is not the Court's role to second-guess an
employer's non-discriminatory business decisions.”). This Court recognizes that, on this
summary judgment motion, Lorenz is entitled to every reasonable inference in his favor.
But any such inferences must be weighed against the other evidence in this case,
including the uncontested evidence that Lorenz’s online courses were not compliant with
ADA requirements. When so weighed, the incidents cited are insufficient to raise an
inference of discrimination.
Although it may have seemed unfair to Lorenz that he was obligated to meet
requirements that were only guidelines for other faculty members, the discrimination laws
are not meant to address unfair behavior. Williams v. NYC Dep't of Sanitation, No. 00
CIV. 7371 (AJP), 2001 WL 1154627, at *15 (S.D.N.Y. Sept. 28, 2001) (“[U]nfair treatment
or personal animosity is not actionable, only discriminatory treatment is.” (internal
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quotation marks omitted)). Even assuming that Lorenz was targeted by Defendants, he
“has not shown that such treatment occurred because of [his] age [or disability], which is
a sine qua non for [a] discrimination claim.” See Weichman v. Chubb & Son, 552 F. Supp.
2d 271, 286 (D. Conn. 2008). Accordingly, the discrimination claims are dismissed.
B.
Retaliation Claims
Like discrimination claims, retaliation claims brought pursuant to the ADEA and the
ADA are analyzed under the burden-shifting framework set out in McDonnell Douglas.
See Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003) (“The McDonnell Douglas burden
shifting analysis used in claims of discrimination in violation of Title VII also applies to
retaliation claims . . . The same standards and burdens apply to claims of retaliation in
violation of the ADEA.”); Reyes v. Krasdale Foods, Inc., 945 F. Supp. 2d 486, 493
(S.D.N.Y. 2013) (“Retaliation claims under the ADA are also evaluated under the
McDonnell Douglas burden-shifting framework.”) (citing Lovejoy-Wilson v. NOCO Motor
Fuel, Inc., 263 F.3d 208, 223 (2d Cir. 2001)). “The court's first step is to determine
whether the plaintiff established a prima facie case of retaliation . . . A prima facie case
of retaliation under the ADEA [or ADA] requires proof that: (1) the plaintiff was engaged
in an activity protected under the ADEA [or ADA]; (2) the employer was aware of the
plaintiff's participation in the protected activity; (3) the plaintiff was subject to an adverse
employment action; and (4) there is a nexus between the protected activity and the
adverse action taken.” Wanamaker v. Columbian Rope Co., 108 F.3d 462, 465 (2d Cir.
1997). “Even if a plaintiff establishes a prima facie case of retaliation, if the defendant
identifies a legitimate, non-discriminatory reason for the adverse employment action, the
burden shifts back to the plaintiff to show that the proffered reason is a pretext for
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retaliation.” Wright v. Storch, Amini & Munves, P.C., No. 12CV2852-LTS-MHD, 2014 WL
1663125 (S.D.N.Y. Apr. 25, 2014) (citing Hicks, 593 F.3d at 160).
Lorenz does not point to any evidence, and this Court finds none in the record,
directly indicative of any retaliatory animus on the part of Defendants; therefore, he must
rely on circumstantial evidence to establish his prima facie case. See Hicks, 593 F.3d at
170. “The cases that accept mere temporal proximity between an employer's knowledge
of protected activity and an adverse employment action as sufficient evidence of causality
to establish a prima facie case uniformly hold that the temporal proximity must be very
close.” Murray v. Visiting Nurse Services of N.Y., 528 F. Supp. 2d 257, 275 (S.D.N.Y.
2007) (internal quotation marks and citations omitted); see also Pierre v. Napolitano, 958
F. Supp. 2d 461, 484 (S.D.N.Y. 2013) (collecting cases, citing Murray for proposition that
“district courts within the Second Circuit have consistently held that the passage of two to
three months between the protected activity and the adverse employment action does not
allow for an inference of causation”). Assuming, arguendo, that Lorenz can prove that he
suffered adverse employment actions, his claims fail because he has not demonstrated
a nexus between his protected activities and the alleged adverse actions. Nor has he
demonstrated that the legitimate, non-discriminatory reasons that Defendants have
proffered as justification for complained-of actions constitute pretexts for discrimination,
as discussed above.
The parties do not make clear what, exactly, are the protected activities in which
Lorenz is alleged to have engaged. However, it appears that the union grievance, which
was filed shortly after Lorenz’s online courses were taken away, does not meet the criteria
of a protected activity. “An employee engages in protected activity when she complains
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about or otherwise opposes conduct that she reasonably believes constitutes forbidden
discrimination or retaliation.” Bader v. Special Metals Corp., 985 F. Supp. 2d 291, 318
(N.D.N.Y. 2013). Although “[c]omplaints about conduct clearly prohibited by the statute
need not mention discrimination or use particular language[,] . . . ambiguous complaints
that do not make the employer aware of alleged discriminatory misconduct do not
constitute protected activity.” Int'l Healthcare Exch., Inc. v. Glob. Healthcare Exch., LLC,
470 F. Supp. 2d 345, 357 (S.D.N.Y. 2007); see also Ramos v. City of New York, No. 96
CIV. 3787 (DLC), 1997 WL 410493, at *3 (S.D.N.Y. July 22, 1997) (“[T]he complainant
must put the employer on notice that . . . discrimination is occurring.”). Lorenz’s union
grievance made no complaint regarding discrimination, nor even a mention of age,
disability, or his purported inability to teach additional seated courses due to his health.
Accordingly, it does not constitute protected activity.
And, although the EEOC complaint and this lawsuit would appear to be protected
activity, as both allege discrimination, Lorenz does not point to any new adverse
employment action that took place after they were filed. Indeed, the only change in
circumstances would appear to be the restoration of his online courses in 2015. Under
these facts, there is no evidence of retaliation. See Chung v. City Univ. of New York, No.
12CIV4045GBDRLE, 2014 WL 11462811, at *4 (S.D.N.Y. Aug. 27, 2014) (no retaliation
claim where “the retaliatory actions alleged by Plaintiff are merely a ‘continuation’ of the
adverse actions that Plaintiff alleged as the basis of his discrimination claim”). For these
reasons, the retaliation claims are also dismissed.
C.
State Law Discrimination Claims
Having dismissed all of Lorenz’s federal claims, this Court declines to exercise
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supplemental jurisdiction over the remaining claims under NYSHRL. See 28 U.S.C.
§ 1367(c)(3); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7, 108 S. Ct. 614, 98
L. Ed. 2d 720 (1988) (“[I]n the usual case in which all federal-law claims are eliminated
before trial, the balance of factors to be considered under the pendent jurisdiction
doctrine—judicial economy, convenience, fairness, and comity—will point toward
declining to exercise jurisdiction over the remaining state-law claims.”).
V.
CONCLUSION
Lorenz has failed to rebut the non-discriminatory purpose offered by Defendants,
and has demonstrated no link between protected activity and any adverse employment
action. Accordingly, his claims are dismissed.
VI.
ORDERS
IT HEREBY IS ORDERED that Defendants’ motion for summary judgment (Docket
No. 31) is GRANTED;
FURTHER, that the Clerk of Court is directed to close this case.
SO ORDERED.
Dated: June 10, 2018
Buffalo, New York
s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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