United States District Court, E.D. New York
February 9, 2004.
JOSE ARROCHA, Plaintiff against THE CITY UNIVERSITY OF NEW YORK, EDISON O. JACKSON, Defendants
The opinion of the court was delivered by: SANDRA J. FEUERSTEIN, District Judge
OPINION & ORDER
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.
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
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
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
(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).
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
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
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.
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.
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
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
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,
reason for the failure to reappoint plaintiff.
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
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
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
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.
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
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.
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
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
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."
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,
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
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.
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.
IT IS SO ORDERED.