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ARROCHA v. CITY UNIVERSITY OF 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

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 ...


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