The opinion of the court was delivered by: ROBERT SWEET, District Judge
The defendant New York University ("NYU" or the "University")
has moved under Rule 56, Fed.R.Civ.P., to dismiss the
complaint of plaintiff pro se William B. Boise ("Boise"). For
the reasons set forth below, the motion is granted.
Boise filed his complaint in this action on August 6, 2003,
alleging age discrimination arising out of his not having been
assigned to teach courses during 2003 and 2004, the revocation of
his tenure, and the refusal of NYU to renew his apartment lease
for a three-year term, which acts are also alleged to constitute
retaliation from his earlier age discrimination action against
Boise's first suit was dismissed by this Court on October 21,
2003, and the Second Circuit affirmed the dismissal on January
28, 2005. Boise v. Boufford ("Boise I"), No. 00 Civ. 7844,
2003 WL 22390792, at *3 (S.D.N.Y. Oct. 21, 2003), aff'd,
121 Fed. Appx. 890, 2005 WL 195095 (2d Cir. Jan. 28, 2005). This
first suit against NYU was an age discrimination suit based on an
earlier time-frame not at issue in this case. (See Rule 56.1
Statement (hereinafter, "Rule 56.1"), § 11). On April 21, 2003, Boise filed a charge with the U.S. Equal
Employment Opportunity Commission ("EEOC"), alleging
discrimination on the basis of age and retaliation. On July 31,
2003, the EEOC informed Boise that it was dismissing his claim,
and it issued a Notice of Right to Sue. Boise's amended and
supplemental complaint, prepared by his then counsel, alleging
age discrimination and retaliation under the Age Discrimination
in Employment Act (the "ADEA"), 29 U.S.C. § 621, et seq., is
dated January 26, 2004. (See Rule 56.1, ¶¶ 12, 24). This motion
was marked submitted on July 6, 2005.
The facts are set forth in NYU's Rule 56.1 Statement. Boise has
made no evidentiary submission but only a one-page letter dated
June 7, 2005 annexed hereto as Appendix A.
Although a pro se plaintiff's failure to submit a Local
Civil Rule 56.1 Statement is not fatal to his opposition, Boise's
submission does not offer any specific facts contrary to those
facts listed in NYU's Rule 56.1 Statement. See Olle v.
Columbia University, 332 F. Supp. 2d 599, 603 n. 1 (S.D.N.Y.
2004), aff'd, 2005 WL 1317020 (2d Cir. June 1, 2005). Each
numbered paragraph in NYU's Statement of Undisputed Facts is
deemed admitted by Boise for purposes of this motion. See Local
Civ. R. 56.1(c). Boise was formerly a Professor of Public Administration in the
Robert F. Wagner Graduate School of Public Service ("Wagner" or
the "School") at NYU, a private university. (See Rule 56.1, ¶
Ellen Schall assumed the position of Dean of Wagner in November
2002. In April 2003, due to Boise's history of aberrant grading
practices, his harassment of faculty and staff members, and other
instances of bizarre behavior, Dean Schall offered him an
opportunity to retire, which would have enabled him to continue
to live in NYU-owned housing. Boise did not accept Dean Schall's
offer. (See Rule 56.1, ¶¶ 4, 6-9, 11, 13-14). Based on the
recommendation of the Wagner Faculty Personnel Committee and with
the required approval of the President of the University, Dean
Schall instituted proceedings in December 2003 to revoke Boise's
tenure at NYU. Boise was given notice of the proceedings in
January 2004. (See Rule 56.1, ¶¶ 10, 18).
Boise retained counsel and was afforded a hearing over five
days between March and June 2004, before a panel of five faculty
members comprising the hearing panel of the Faculty Tenure
Committee. In accordance with the University's Rules Regulating
Proceedings to Terminate for Cause the Service of a Tenured
Member of the Teaching Staff of the Faculty Handbook, the panel
consisted of faculty representatives from different schools and
colleges at the University, including one from Boise's own
school. (See Rule 56.1, ¶¶ 19, 23). The panel was presented
with evidence by both parties including the testimony of NYU students and professors,
videotape clips of Boise's behavior, as well as other exhibits.
Boise was represented by counsel until he discharged his attorney
prior to the final day of the hearings. (Id.) On June 21, 2004,
the panel issued its decision revoking Boise's tenure based on
his grading practices, his harassment of members of the NYU
community, which the panel noted created "an inappropriate and
sometimes threatening workplace environment," and his violations
of the conditions put in place to allow him to continue to use
his office while the proceedings were conducted. (See Rule
56.1, ¶ 20). The panel concluded that Boise's behavior amounted
to "conduct of a character seriously prejudicial to . . . the
welfare of the University." (See Rule 56.1, ¶ 20). Finally, the
panel noted the extraordinary nature of the action that they were
taking, adding that while some of Boise's behaviors alone might
not have warranted termination, the sum total of the evidence
convinced them that revocation was appropriate. (Id.)
On September 22, 2004, the Tenure Appeal Committee unanimously
affirmed the hearing panel's decision and found that the sanction
of dismissal for cause was appropriate. (See Rule 56.1, ¶ 21).
Boise testified at deposition held on January 31, 2005 that he
has no evidence that indicates any age-based or retaliatory motivation on the part of NYU but instead has based each of his
charges on personal speculation. (See Rule 56.1, ¶¶ 24-25, 34).
Summary Judgment Is Appropriate
Summary judgment is appropriate when no genuine issue of
material fact exists and the moving party is entitled to judgment
as a matter of law. See Fed.R.Civ.P. 56(c); Boise v.
Boufford, 121 Fed. Appx. 890, 892, 2005 WL 195095, at **1 (2d
Cir. Jan. 28, 2005); Colombo v. O'Connell, 310 F.3d 115, 116
(2d Cir. 2002); Hermes Int'l v. Lederer de Paris Fifth Ave.,
Inc., 219 F.3d 104, 107 (2d Cir. 2000). The moving party has the
burden of showing that no genuine factual dispute exists.
Carlton v. Mystic Transp., Inc., 202 F.3d 129, 133 (2d Cir.
2000) (citing Gallo v. Prudential Residential Servs.,
22 F.3d 1219, 1223 (2d Cir. 1994)). A party opposing summary judgment may
not rest upon the mere allegations or denials of his pleading; he
must set forth specific facts showing that there is a genuine
issue for trial. See Fed.R.Civ.P. 56(e); Anderson ...