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United States District Court, E.D. New York

February 9, 2004.


The opinion of the court was delivered by: SANDRA J. FEUERSTEIN, District Judge


I. Introduction

Plaintiff Jose Arrocha ("plaintiff') alleges that defendant City University of New York ("CUNY") discriminated against him on the basis of race and national origin in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII") and that defendant Edison O. Jackson ("Jackson"), President of Medgar Evers College ("MEC"), retaliated against plaintiff in violation of the Civil Rights Act of 1871, codified as 42 U.S.C. § 1983, for the deprivation of rights under 42 U.S.C. § 1981; and section 296 of the New York State Executive Law ("NYS Human Rights Law"). (Compl. para. 1). Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure dismissing the complaint in its entirety. For the reasons stated below, the motion is GRANTED in part and DENIED in part. Page 2

 II. Background

  A. Facts*fn1

  Plaintiff was born in Panama, has a dark complexion, and moved to the United States in 1971, (Arrocha Aff. para. 2). In February 1998, plaintiff was hired as a Spanish tutor in MEC's Languages, Literature & Philosophy Department ("LLP Department"), a position he currently holds. (Defs.' Local Civil Rule 56.1 Statement para. 13; Banks Decl. at 30-31). For the Spring 1999 semester, he was appointed as an adjunct instructor in the LLP Department's Spanish language program. (Defs.' Local Civil Rule 56.1 Statement para. 14). MEC's adjunct faculty members are hired on a semester-by-semester basis, and plaintiff was reappointed as an adjunct instructor for the Fall 1999, Spring 2000, and Fall 2000 semesters. (Id. para. 1, 14). Defendants' decision not to reappoint plaintiff for the Spring 2001 semester is the basis of this action.

  MEC's adjunct faculty members are evaluated by a full-time faculty member each semester based upon observation in a classroom setting and rated on a scale of "1" (poor) to "5" (outstanding). Following the observation, the evaluator drafts a "Post-Observation Conference Memorandum" and confers with the instructor to discuss the findings, (Id. para. 3-4). An adjunct faculty member may request a second post-observation conference with the evaluator and another faculty member. (Id. para. 5).

  Each semester, the Personnel and Budget ("P&B") Committee of the adjunct faculty member's department determines the department's need for adjunct faculty for the upcoming Page 3 semester and prepares a list of those recommended for reappointment which is voted upon by a college-wide P&B Committee comprised of the chairpersons of all academic departments, four elected at-large faculty members, four members of the student government, the college President, and the Provost, (Id. para. 8). The college President is the chair of the college-wide P&B Committee, but only votes in the event of tie. (Id.) The P&B Committee's recommendations on reappointment are forwarded to the President. From these candidates, the President forwards his or her recommendations to the CUNY Chancellor, whose own recommendations are sent to CUNY's Board of Trustees. (Id. para. 10).

  Professor Iraida Lopez ("Lopez") evaluated plaintiff in the Spring 1999, Spring 2000, and Fall 2000 semesters. (Defs.' Local Civil Rule 56.1 Statement para. 15). For the Spring 1999 and Spring 2000 semesters, plaintiff received overall ratings of "3" (satisfactory). As part of the Fall 2000 semester evaluation, Professor Lopez observed plaintiff's Spanish 101 class on October 31, 2000, and gave plaintiff an overall rating of "2.5". (Id. para. 18, 20). Defendants contend that a post-observation conference with plaintiff was held immediately after the observed class, (Id. para, 19), and, curiously also claim that Professor Lopez telephoned plaintiff to arrange a meeting regarding her evaluation and comments. (Id. para. 22). Plaintiff denies any attempt was made, or any conference was held and claims that his request for a second post-observation conference was not granted. (Pl's Counter-statement para. 22, 24). The "Post-Observation Conference Memorandum" which was delivered to plaintiff stated:

  The one-hour class I observed covered too much material. . . . Students need to play a more active role. A more creative use of the exercises should be made to challenge students & encourage them to use the language in an active way. The instructor relies on the textbook explanation and exercises. Page 4

  (Defs.' Local Civil Rule 56.1 Statement para. 20-21).

  In November 2000, the LLP Department's P&B Committee recommended plaintiff's reappointment as an adjunct instructor for the Spring 2001 semester despite Professor Lopez's evaluation. (Defs.' Local Civil Rule 56.1 Statement para. 26-27). However, the college-wide P&B Committee voted against plaintiff's reappointment. (Id. para. 28).

  Prior to rendering a decision, President Jackson requested that all adjunct faculty not recommended for reappointment by the college-wide P&B Committee, including plaintiff, submit additional materials in support of recommendation. (Id. para. 30-31). Plaintiff submitted a letter, dated November 28, 2000, that summarized his qualifications and alleged that the Spanish department discriminated against "black Hispanics." (Jackson Decl., exh. B). On that same date, President Jackson recommended to the Chancellor that plaintiff not be reappointed for the Spring 2001 semester. (Defs.' Local Civil Rule 56.1 Statement para. 32).

  Plaintiff contends that Jackson's decision was made in retaliation for the November 28, 2000 letter. (Pl's Counter-statement para. 36).

  B. Procedural History

  In June 2001, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), (Banks Decl, at ext. C), which issued a Right to Sue Letter without judging the merits of the case. (Id. at exh. D). On March 26, 2002, plaintiff commenced this action. (Id. at exh. A). Page 5

  III. Analysis

  A. Summary Judgment Standard of Review

  Summary judgment should not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is material "if it might affect the outcome of the suit under the governing law." Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001). An issue of fact is genuine only if a jury could reasonably find in favor of the nonmoving party based on that fact. See id. The moving party bears the initial burden of establishing the absence of any genuine issue of material fact, after which the burden shifts to the nonmoving party to establish the existence of a factual question that must be resolved at trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L.Ed.2d 202, 106 S.Ct. 2505 (1986). The trial court is required to construe the evidence in the light most favorable to the nonmoving party, and draw all reasonable inferences in its favor. See id. at 252; Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996). However, the nonmoving party may not rely on conclusory allegations, but must set forth "concrete particulars" showing that a trial is needed. See Cameron v. Cmty. Aid for Retarded Children. Inc., 335 F.3d 60, 63 (2d Cir. 2003). Merely asserting a conclusion without providing supporting arguments or facts is insufficient to defeat summary judgement. See BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996).

  The Second Circuit has recognized that direct evidence of discriminatory intent is rare and often must be inferred from circumstantial evidence found in the pleadings. See Holtz, 258 F.3d at 69. Nevertheless, summary judgment may be appropriate if a discrimination case is Page 6 devoid of genuine issues of material fact. See id.; see also Abdu-Brisson v. Delta Air Lines. Inc., 239 F.3d 456, 466 (2d Cir. 2001) ("It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases.").

  B. Burden-shifting Analysis Under Title VII and N.Y.S. Human Rights Law

  Pursuant to Title VII, 42 U.S.C. § 2000e-2(a) (1994), and § 296 of the N.Y.S. Human Rights Law, N.Y. EXEC. LAW § 296(1)(a) (2001), it is unlawful for an employer to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, or national origin.

  Since there is no direct evidence of discrimination, plaintiff's Title VII and N.Y.S. Human Rights Law claims must be examined under the three-step burden-shifting framework established in McDonnell Douglas Corp, v. Green, 411 U.S. 792, 36 L.Ed.2d 668, 93 S.Ct. 1817 (1973). See Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001) (NYS Human Rights Law discrimination claims are evaluated using the same analytical framework as Title VII actions).

  First, plaintiff must state a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802; see also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L, Ed.2d 207, 101 S.Ct. 1089 (1981). Second, once plaintiff has established a prima facie case, the burden shifts to the defendant, who must state a legitimate, non-discriminatory reason justifying the allegedly improper employment action. See McDonnell Douglas, 411 U.S. at 802-03; Farias, 259 F.3d at 98. Third, if the defendant meets this burden, the presumption of discrimination created by the prima facie case drops out of the picture, and the defendant "will be entitled to summary judgment unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." James v. N, Y. Racing Ass'n, 233 F.3d 149, 154 (2d Cir. Page 7 2000); see also Mario v. P & C Food Mkts., 313 F.3d 758, 767 (2d Cir. 2002) ("The plaintiff must be afforded the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons but were a pretext for discrimination.").

  C. Discrimination Claim

  To establish a prima facie case of discrimination in violation of Title VII, a plaintiff must show: (1) he is a member of the protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) the adverse employment action occurred in circumstances giving rise to an inference of discrimination. See Farias v. Instructional Sys., 259 F.3d 91, 98 (2d Cir. 2001); Stern v. Trustees of Columbia Univ., 131 F.3d 305, 311-12 (2d Cir. 1997).

  1. Prima Facie Case

  a. Protected Class

  It is undisputed that plaintiff is within the protected classifications of race and national origin.

  b. Qualification

  While the plaintiff does not need to show perfect or even average performance, see Gregory v. Daly, 243 F.3d 687, 696 (2d Cir. 2001), a "minimal showing" of the "basic skills necessary for the performance of [the] job" is required. Id.; see also Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 91 (2d Cir. 2001) ("[A]ll that is required is that the plaintiff establish basic eligibility for the position at issue, and not the greater showing that he satisfies the employer."). When, as here, the employer has retained the plaintiff for a substantial Page 8 amount of time, it can be inferred that the plaintiff possesses at least the basic skills necessary for the performance of the job he or she is performing. See Gregory, 243 F.3d at 696. As plaintiff was an adjunct instructor at MEC for two years, he has demonstrated that he possessed the basic skills necessary for performance of the position.

  c. Adverse Employment Action

  There is no dispute that the failure to reappoint plaintiff as an adjunct instructor was an adverse employment action.

  d. Inference of Discriminatory Intent

  An inference of discriminatory intent may be demonstrated by showing that the employer treated similarly situated employees not in the protected group more favorably than plaintiff. See Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir. 1997); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994); Hunter v. St. Francis Hospital, No. 02-528, 2003 U.S. Dist. LEXIS 14602, at *17 (E.D.N.Y. Aug. 20, 2003). "In determining whether plaintiff has met the de minimis initial burden of showing circumstances giving rise to an inference of discrimination, the function of the court on a summary judgment motion is to determine whether the proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive. It is not the province of the summary judgment court itself to decide what inferences should be drawn." Cronin v. Aetna Life. Ins. Co., 46 F.3d 196, 204 (2d Cir. 1995). A court should only consider plaintiff's evidence when determining whether a prima facie case has been established. See Graham v. Long Island R.R., 230 F.3d 34, 42 (2d Cir. 2000).

  From the record, it is unclear whether similarly situated adjunct instructors not in Page 9 plaintiff's protected group were recommended for reappointment. Thus, an issue of material fact exists as to whether similarly situated adjunct instructors not in plaintiff's protected group were reappointed, which would be evidence that MEC treated plaintiff less favorably than employees outside his protected group. In light of plaintiff's de minimis initial burden of showing circumstances giving rise to an inference of discrimination, a prima facie case has been established.

  2. Defendants' Non-Discriminatory Reason

  After a plaintiff establishes a prima facie case, the burden shifts to defendant to offer a legitimate, non-discriminatory reason for the employment action. To meet their burden, defendants need only articulate the existence of a non-discriminatory reason for an adverse action that, if believed by a fact-finder, would support a judgment in defendants' favor. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). "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 v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998). The ultimate burden of proving intentional discrimination against the plaintiff remains at all times with the plaintiff. See id.

  Defendants cite specific deficiencies including plaintiff's failure to encourage student dialogue in Spanish and heavy reliance on textbook exercises relying upon "the ratings and comments in plaintiff's peer evaluation forms. . . ." (Jackson Decl. para. 12). Academic institutions are accorded a degree of deference in the exercise of professional judgment. See Boise v. RY. Univ., No. 00-7844, 2003 U.S. Dist. LEXIS 18639, at *25 (S.D.N.Y. Oct. 22, 2003). Defendants' stated explanation satisfies its burden of offering a legitimate, non-discriminatory Page 10 reason for the failure to reappoint plaintiff.

  3. Pretext

  At this stage, "the governing standard is simply whether the evidence, taken as a whole, is sufficient to support a reasonable inference that prohibited discrimination occurred." James v. New York Racing Ass'n, 233 F.3d 149, 156 (2d Cir. 2000); see also Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003). If the plaintiff raises a genuine issue of fact as to whether "the employer's proffered explanation is unworthy of credence," the summary judgment motion will be denied. letter v. Knothe Corp., 324 F.3d 73, 77 (2d Cir. 2003) (internal citation omitted).

  In his Spring 1999 peer evaluation, plaintiff received a "2.5" rating for Communication and Motivation and a "3.0" Overall rating, and was advised by Professor Lopez to "encourage oral exchanges and communication. . . ." (Lopez Decl., exh. A). Although plaintiff received an Overall rating of "3.0" in his Spring 2000 evaluation, as a result of plaintiff's continued failure to encourage students to speak Spanish, Professor Lopez lowered his Communication and Motivation rating to "2.0" and noted that "a more varied use of exercises (especially oral) would have been appropriate." (Id. at exh. B). In his Fall 2000 evaluation, Professor Lopez maintained the "2.0" rating for Communication and Motivation, and lowered plaintiff's Overall rating to "2.5." (Id at exh. C). Professor Lopez commented, "Students need to play a more active role. A more creative use of exercises should be made to challenge students & encourage them to use the language in an active way." (Id.).

  Plaintiff claims that defendants' non-discriminatory reason is pretextual since his prior evaluations warranted reappointment. However, the fact that there were prior good evaluations of plaintiff's work cannot alone establish or raise issues that later negative evaluations are pretext Page 11 for unlawful discrimination. See Brown v. Soc'y for Seaman's Children, 194 F. Supp.2d 182, 192 (E.D.N.Y. 2002); Moorer v. Grumman Aerospace Corp., 964 F. Supp.2d 665, 674 (E.D.N.Y. 1997), aff'd, 162 F.3d 1148 (2d Cir. 1998). Plaintiff's subjective beliefs regarding his teaching abilities are insufficient to support a reasonable inference that discrimination occurred. "Under the law, it is the perception of the decision-maker as to the employee's qualifications and not that of plaintiff, which is relevant." Ferguson v. Barram, 2000 U.S. Dist. LEXIS 4592, at *20 (S.D.N.Y. Apr. 11, 2000): see also Rosen v. Columbia Univ., No. 92-6330, 1995 WL464991, at *7 (S.D.N.Y. Aug. 7, 1995). Defendants' perception as to the eight adjunct instructors appointed to the LLP's Spanish language section for the Spring 2001 semester is relevant as well. If the reappointed adjunct professors not in plaintiff's protected group had similar qualifications and evaluations, then defendants' non-discriminatory reason for failing to reappoint plaintiff (his alleged teaching deficiency) is sufficient to raise a question of pretext. Since the record does not contain the qualifications and evaluations of those hired, there is a genuine issue of fact as to whether defendants' proffered explanation is unworthy of credence.

  Defendants point out that of the eight adjunct instructors appointed for the Spring 2001 semester, three did not complete the affirmative action survey, three identified themselves Hispanic, one identified her race as white, and the last individual's Mexican passport identified his skin color as brown. (Chalmers Decl, Para. 4-6). Although plaintiff characterizes his claim as one for racial discrimination, discrimination based upon skin coloration is a more accurate description of the claim since it alleges that light-skinned Hispanics were favored over dark-skinned Page 12 Hispanics,*fn2 See Saint Francis College v. Al-Khazraji, 481 U.S. 604, 610 n.4, 95 L.Ed.2d 582, 107 S.Ct. 2022 (1987) ("The particular traits which have generally been chosen to characterize races have been criticized as having little biological significance,"); see also Felix v. Marquez, 24 Empl. Prac. Dec. (CCH) para. 31, 279 (D.D.C. 1980) ("Color may be a rare claim, because color is usually mixed with or subordinated to claims of race discrimination, but considering the mixtures of races and ancestral national origins in Puerto Rico, color may be the most practical claim to present."). Therefore, the fact that Hispanics were hired is irrelevant since the claim is discrimination based upon plaintiff's dark skin color. The aforementioned statistics provide no indication of whether the three Hispanic adjunct instructors are light-skinned or dark-skinned.

  In light of the foregoing, plaintiff has raised genuine issues of fact regarding the teaching performance and skin color of those adjunct professors hired for the Spring 2001 semester. Since the evidence supports a reasonable inference that discrimination based upon skin color occurred, summary judgment on these claims against CUNY is inappropriate.

  However, the record fails to reasonably supports a finding of prohibited national origin discrimination. Although there is no evidence regarding the number of Panamanians employed by MEC, five of the eight adjunct instructors reappointed are natives of South or Central American countries, including Argentina, Peru, Mexico, and the Dominican Republic. (Id.). Page 13 Diversity in an employer's staff undercuts an inference of discriminatory intent. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 38 (2d Cir. 1994); Lawrence v. State Univ. of New York, No. 01-7395, 2002 U.S. Dist. LEXIS 23916, at *17-18 (S.D.N.Y. Dec. 12, 2002). Furthermore, plaintiff's own complaints suggest that the actual basis for the alleged discrimination was color, and not national origin. For example, plaintiff's letter to President Jackson states:

Prof. Lopez and Prof. Vivero have made systematic use of their positions of leadership and the evaluation process to discredit my work and to exclude me from the Spanish faculty only because I am black . . . Medgar Evans College does not have a Black professor of Spanish because of the blatant racism of White Hispanics toward Black Hispanics. . . . Moreover, there is a disturbing culture of favoritism that favors the appointments of white Cubans, Spaniards, and white Hispanics from South America. In my opinion, black Hispanics do not have an equal opportunity to teach Spanish. Sir, talent has no race. . . .
(Jackson Decl., exh. B) (emphasis added). The crux of plaintiff's allegations are that white employees were favored over black employees. Plaintiff does not contend that Panamanians were subjected to adverse actions while dark-skinned natives of other Latin American countries received preferential treatment. Similarly, the complaint and supporting materials filed with this Court fail to indicate that national origin discrimination motivated defendants' decision. Therefore, the motion for summary judgment on the national origin discrimination claim is granted.

  D. Retaliation Claim

  Plaintiff alleges that he was denied reappointment by President Jackson in retaliation for complaints of discrimination contained in his November 28, 2003 letter. Section 1981 and N.Y.S. Human Rights Law retaliation claims are examined under the same burden-shifting framework applicable to Title VII retaliation claims. See Lizardo v. Penny's, Inc., 270 F.3d 94, 105 (2d Cir. Page 14 2001) (section 1981 retaliation claim); Torres v. Pisano, 116 F.3d 625, 629 n.1 (2d Cir. 1997) (Human Rights Law retaliation claim). First, the plaintiff must make a prima facie case of retaliation. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 19981 Second, the defendant has the burden of articulating a legitimate, non-retaliatory reason for the complained of action. See id. Lastly, if the defendant meets its burden, plaintiff must show that the defendant's articulated reason was merely a pretext for retaliation. See id. at 769.

  1. Prima Facie Case

  To establish a prima facie case of retaliation, an employee must show (1) participation in a protected activity known to the defendant; (2) an adverse employment action; and (3) a causal connection between the protected activity and the adverse employment action. See id. (citing Tomka v. Seller Corp., 66 F.3d 1295, 1308 (2d Cir. 1995)). Since plaintiff's letter alleging discrimination was dated the same day as President Jackson's decision not to recommend his reappointment, November 28, 2000, defendants concede that a prima facie case has been established for the purposes of this motion.

  2. Defendants' Non-retaliatory Reason

  Defendants have met their burden of stating a non-retaliatory basis for denying appointment by stating that plaintiff failed to improve his performance after three consecutive mediocre and unsatisfactory evaluations.

  3. Pretext

  Once the employer proffers a non-retaliatory explanation for its action, "[t]he burden shifts, therefore, back to the plaintiff to establish, through either direct or circumstantial evidence, that the employer's action was, in fact, motivated by discriminatory retaliation." See Page 15 Rainola v. Bratton, 243 F.3d 610, 625 (2d Cir. 2001). Plaintiff argues that President Jackson's appraisal of his teaching abilities was subjective, and disregarded the Fall 2000 peer evaluation categories in which plaintiff received favorable ratings. However, given the peer evaluations and the P&B Committee's negative determination, President Jackson's failure to recommend plaintiff is not a significant departure from proper academic standards raising an issue of an absence of professional judgment. See Boise v. N.Y. Univ., No. 00-7844, 2003 U.S. Dist. LEXIS 18639, at *25 (S.D.N.Y. Oct. 22, 2003).

  A plaintiff is not obligated to prove that a retaliatory motive was the sole cause of the adverse action, but must show that such motive was "at least a `substantial' or `motivating' factor behind the adverse action." Rainola, 243 F.3d at 625 (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 50 L.Ed.2d 471, 97 S.Ct. 568 (1977). Proving that retaliation was a "substantial" or "motivating" factor behind an adverse employment action can be accomplished: (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment . . . or (2) directly, through evidence of retaliatory animus directed against the plaintiff by defendant." Id.

  It is undisputed that President Jackson received plaintiff's letter alleging a bias favoring white Hispanics on November 28, 2000, and decided not to recommend plaintiff for reappointment on the same day. (Jackson Decl. para. 13, 15, 20). Viewing the evidence in a light most favorable to plaintiff and drawing all reasonable inferences in his favor, a jury could reasonably conclude that "the employer's proffered reasons . . . were not [its] only reasons and that the prohibited factor was at least one of the motivating factors." Padilla v. Metro-North Commuter Railroad, 92 F.3d 117, 122 (2d Cir. 1996) (internal citation omitted). Although Page 16 President Jackson claims that CUNY's agreement with the faculty union required the notification of appointment or non-appointment by December 1, 2000, defendants have not provided any evidence to corroborate this assertion, such as the agreement itself.

  E. Qualified Immunity

  The doctrine of qualified immunity shields government officials performing discretionary functions from liability for civil damages if their conduct does not violate clearly established rights or if their actions were objectively reasonable. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L.Ed.2d 396, 102 S.Ct. 2727 (1982); Mandell v. County of Suffolk, 316 F.3d 368, 385 (2d Cir. 2003). Where the "specific intent of a defendant is an element of plaintiff's claim under clearly established law, and plaintiff has adduced sufficient evidence of that intent to defeat summary judgment, summary judgment on qualified immunity grounds is inappropriate." Mandell, 316 F.3d at 385; see also Locurto v. Safir, 264 F.3d 154, 169-70 (2d Cir. 2001). Since President Jackson's intent is an element of plaintiff's retaliation claim, and plaintiff's evidence raises a triable issue of fact, President Jackson is not entitled to qualified immunity. Page 17

  IV. Conclusion

  For the foregoing reasons, the defendants' motion for summary judgment is GRANTED in part and DENIED in part. The parties are directed to appear in Room 365, 225 Cadman Plaza East on Monday, March 15, 2004 at 10:00 am for a settlement and/or scheduling conference with authority or persons with authority to resolve this action. Further, the parties are directed to engage in good faith settlement negotiations prior to the conference.


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