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United States District Court, S.D. New York

November 3, 2005.

WILLIAM B. BOISE, Plaintiff,

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.

  Prior Proceedings

  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 NYU.

  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

  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, ¶ 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 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If little or no evidence supports the non-moving party's case, there is no genuine issue of material fact and summary judgment is appropriate. Gallo, 22 F.3d at 1223-24.

  The Discrimination Claim Is Dismissed "The salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation." Boise I, 2003 WL 22390792, at *3 (quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)). "[T]he Supreme Court reiterated that trial courts should not treat discrimination differently from other ultimate questions of fact." Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) (internal quotations omitted)).

  For a claim of discrimination, the plaintiff has the initial burden of proving a prima facie case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Boise I, 2003 WL 22390792, at *3 (applying the McDonnell Douglas framework to an age discrimination case). The plaintiff must prove that he is: (1) a member of a protected class, (2) who was qualified for his position, (3) who suffered an adverse employment action, (4) under circumstances giving rise to an inference of discrimination. McDonnell Douglas, 411 U.S. at 802. If the plaintiff establishes a prima facie case, the defendant may state a legitimate, non-discriminatory reason for its actions to rebut any inference of discrimination. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981); Bickerstaff v. Vassar Coll., 196 F.3d 435, 446 (2d Cir. 1999) ("The defendant's burden of production also is not a demanding one; she need only offer such an explanation for the employment decision."). Once the defendant presents a non-discriminatory reason, the presumption of discrimination from the plaintiff's prima facie case drops out of the picture. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993).

  The plaintiff must then come forward with evidence that the defendant's proffered, non-discriminatory reason is a mere pretext for actual discrimination. The plaintiff must "produce not simply `some' evidence, but `sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the [defendant] were false, and that more likely than not [discrimination] was the real reason for the [employment action].'" Boise I, 2003 WL 22390792, at *3 (quoting Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (citations omitted) (alterations in original)). "It is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination." St. Mary's, 509 U.S. at 519 (emphasis in original).

  In order to meet the fourth requirement of a prima facie case of age discrimination under McDonnell Douglas, Boise must proffer admissible evidence "show[ing] circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive." Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 38 (2d Cir. 1994); see also Boise I, 121 Fed. Appx. at 893, 2005 WL 195095, at *2 (plaintiff must adduce some evidence supporting an inference that the conduct was "based on [his] age" (citations omitted)). No such evidence has been submitted. Boise acknowledged at his deposition that no derogatory statements about his age were ever made by any agents of the University to him or in his presence. (See Rule 56.1, ¶¶ 29, 32, 34). There is no evidence that any of the University's decisions were based on a discriminatory motive. (See Rule 56.1, ¶¶ 29-35).

  At his deposition, Boise stated that his claims were based solely on his own speculation. (See Rule 56.1, ¶ 34). Personal speculation is insufficient to raise an inference of discrimination. See Cameron v. Cmty. Aid for Retarded Children, Inc., 335 F.3d 60, 63 (2d Cir. 2003) (noting that "[p]urely conclusory allegations of discrimination" are insufficient to defeat a summary judgment motion). Boise's speculation is particularly insufficient in light of the fact that courts in this Circuit have recognized that "[b]ecause tenure decisions `involve a myriad of considerations and are made by numerous individuals and committees over a lengthy period of time, a plaintiff faces an uphill battle in her efforts to prove discrimination.'" Peterson v. City Coll., 32 F. Supp. 2d 675, 684-85 (S.D.N.Y. 1999) (internal citations omitted).

  As circumstantial evidence, Boise notes that he is 76 years old. (See Rule 56.1, ¶ 33). Six individuals over 70 have taught on the Wagner faculty during Dean Schall's deanship, and no evidence has been submitted that any of these faculty members have ever been subject to discriminatory remarks or conduct on the part of NYU. None of these individuals have leveled allegations of age discrimination against Dean Schall in a grievance, EEOC charge, or lawsuit. (See Rule 56.1, ¶¶ 27-28). Where the plaintiff's only evidence in support of his claim is the fact of his age, courts have granted summary judgment in favor of the employer defendant. Seltzer v. Dresdner Kleinwort Wasserstein, Inc., 356 F. Supp. 2d 288, 299 (S.D.N.Y. 2005) (holding that bare fact that plaintiff was 72 years old at time of discharge is not sufficient to defeat summary judgment).

  In addition, the University has established a legitimate, non-discriminatory reason for its actions. The ADEA states that:

[I]t shall not be unlawful for an employer . . . to take any action otherwise prohibited under subsections (a), (b), (c) or (e) of this section . . . where the differentiation is based on reasonable factors other than age. . . .
29 U.S.C. § 623(f)(1). The ADEA states further that employers are not subject to discrimination claims where their actions constitute the disciplining or discharging of an employee for good cause. See 29 U.S.C. § 623(f)(3) ("[I]t shall not be unlawful for an employer . . . to discharge or otherwise discipline an individual for good cause."). The University's Faculty Handbook, providing the University with the right to revoke the tenure of a faculty member for cause, is consistent with the ADEA. (See Rule 56.1, ¶ 18). NYU established good cause because Boise engaged in grading practices in violation of school policy, improperly tampered with faculty mailboxes, and harassed members of the University community. (See Rule 56.1, ¶ 20). The decision of the panel of faculty representatives from NYU, as well as the appeal panel, concluded the termination of tenure was appropriate. (See Rule 56.1, ¶¶ 18-23).

  Universities are entitled to a degree of deference in the exercise of academic judgment. Boise I, 2003 WL 22390792, at *6 (citing Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985) ("When judges are asked to review the substance of a genuinely academic decision, . . . they may not override it unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.")); accord Univ. of Penn. v. EEOC, 493 U.S. 182, 199 (1990) ("[C]ourts have stressed the importance of avoiding second-guessing of legitimate academic judgments."). "It is [the Court's] task . . . to steer a careful course between excessive intervention in the affairs of the university and the unwarranted tolerance of unlawful behavior." Powell v. Syracuse Univ., 580 F.2d 1150, 1154 (2d Cir. 1978); cf. Tripp v. Long Island Univ., 48 F. Supp. 2d 220, 224 (E.D.N.Y. 1999), aff'd, 201 F.3d 432 (2d Cir. 1999) (holding that, where plaintiff student challenged defendant's exercise of academic judgment, conclusory allegations of discrimination without additional proof were insufficient to sustain burden on summary judgment to prove intentional discrimination).

  By the time Dean Schall assumed the deanship, the Wagner School had received numerous complaints from the students enrolled in a course taught by Boise. Boise had failed to publish a scholarly work for many years and had not given a grade other than "A" for completed course-work at any time since the fall of 1992. (See Rule 56.1, ¶¶ 5-7).

  Boise had also been observed tampering with and removing the mail of other faculty members on several occasions. (See Rule 56.1, ¶¶ 8, 16-17). No reason has been put forth not to defer to the University's considered judgment based on good cause and reasonable factors other than age.

  Boise has failed to adduce any evidence to rebut these legitimate non-discriminatory reasons for his termination. The termination of tenure was undertaken consistent with the elaborate procedures identified in the NYU Faculty Handbook, he was given notice of the proceedings, a hearing, and the opportunity to present his own witnesses and to cross-examine the University's witnesses. (See Rule 56.1, ¶¶ 18-19, 23). Boise conceded the appropriateness of this procedure at his deposition when he stated that "they followed this procedure," and that he was given "internal due process." (See Rule 56.1, ¶ 23). Consequently, Boise has failed to present any evidence of an improper motivation by any of the numerous actors at NYU who played a role in the decision to terminate his tenure.

  The case cited by Boise, Smith v. City of Jackson, 125 S.Ct. 1536 (2005), is inapplicable to this case because it involved a disparate impact claim. The amended and supplemental complaint does not raise a claim of disparate impact. Boise has cited no employment practices of NYU that have a disparate impact on older workers, nor has he submitted any statistical disparities resulting from an employment practice or test at NYU. Indeed, in Smith, the Supreme Court held that the plaintiffs had not stated a claim for disparate impact due to their failure to identify the specific test, requirement, or practice being challenged. See Smith, 125 S.Ct. at 1545.

  Based on the foregoing, there is no genuine issue of material fact regarding Boise's discrimination claim, and NYU is entitled to summary judgment. See Schnabel, 232 F.3d at 88, 91 (upholding grant of summary judgment where plaintiff presented no evidence beyond his prima facie case upon which a reasonable trier of fact could conclude that age was a determinative factor in the plaintiff's termination); Newsom-Lang v. Warren Int'l, Inc., 249 F. Supp. 2d 292, 301 (S.D.N.Y. 2003) (granting summary judgment where plaintiff failed to present evidence to rebut the defendant's facially legitimate non-discriminatory reasons for his termination), aff'd, 80 Fed. Appx. 124, 2003 WL 22490366 (2d Cir. Nov. 4, 2003).

  The Retaliation Claim Is Dismissed

  A viable claim for retaliation requires that plaintiff show:

that he engaged in protected activity, that the employer was aware of this activity, that the employer took adverse action against the plaintiff, and that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action.
Boise I, 2003 WL 22390792, at *8 (citing Sands v. Runyon, 28 F.3d 1323, 1331 (2d Cir. 1994); accord Torres v. Pisano, 116 F.3d 625, 639 (2d Cir. 1997); Van Zant v. KLM Dutch Royal Airlines, 80 F.3d 708, 714 (2d Cir. 1996); Weixel v. Board of Educ. of City of New York, 287 F.3d 138, 148 (2d Cir. 2002)).

  In order to survive this motion, a plaintiff in Boise's situation must present some evidence of a causal connection between his first age discrimination suit and the adverse employment actions complained of herein. A causal connection, may be established either indirectly by showing that the protected activity was followed closely by discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or directly through evidence of retaliatory animus directed against a plaintiff by the defendant.

  Boise I, 2003 WL 22390792, at *9 (quoting Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991) (internal quotations omitted)).

  Boise has not presented direct evidence of any retaliatory motivation on the part of the University. He admitted at deposition that he does not have any evidence that the filing of the present suit caused NYU to take action against him, instead testifying that the retaliation against him was only due to his first age discrimination lawsuit. (See Rule 56.1, ¶ 26). Regarding his first suit, Boise stated at his deposition that his retaliation claim was based exclusively on his own speculation. (See Rule 56.1, ¶ 34). He has offered no evidence that fellow faculty members were treated differently for engaging in similar conduct.

  At best, Boise has presented only a temporal proximity as an indirect basis for the causal connection to support his retaliation claim.

  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." Clark Co. Sch. Dist. v. Breeden, 532 U.S. 268, 2273-74 (2001) (citing Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (holding three-month period insufficient to establish causal connection), and Hughes v. Derwinski, 967 F.2d 1168, 1174-75 (7th Cir. 1992) (four-month period insufficient)); accord Hollander v. Am. Cyanamid Co., 895 F.2d 80, 82, 85-86 (2d Cir. 1990) (three-month period insufficient); Contes v. Porr, 345 F. Supp. 2d 372, 383 (S.D.N.Y. 2004).

  Here, NYU's purportedly retaliatory actions were undertaken between the spring of 2003 and September 2004, while Boise's first lawsuit was commenced on or about October 16, 2000. The nearly three-year time difference fails to establish a link between Boise's first suit and the allegedly retaliatory actions that took place sufficient to prove retaliation. A claim of causal connection is further undermined by the evidence of his unprofessional conduct leading up to his termination. See, e.g., Carr v. WestLB Admin., Inc., 171 F. Supp. 2d 302, 310 (S.D.N.Y. 2001) (noting that defendant's well-documented dissatisfaction with plaintiff's performance undermined the plausibility of a causal connection).

  Boise has not established that there was a causal connection to any purported retaliatory conduct. Even if Boise had stated a prima facie case of retaliation, which he has not, the University had legitimate, non-discriminatory reasons for its actions. As set forth above, the University is afforded a degree of deference for its exercise of academic judgment. See, e.g., Grutter, 539 U.S. at 328; Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985); accord Univ. of Penn. v. EEOC, 493 U.S. 182, 199 (1990) ("[C]ourts have stressed the importance of avoiding second-guessing of legitimate academic judgments."); see, also Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (recognizing "who may teach" as one of the "essential freedoms" of a university). Furthermore, the express language of the ADEA affords employers the ability to take actions for good cause or reasonable factors other than age. See 29 U.S.C. § 623(f)(1) & (f)(3).

  NYU was legitimately concerned that Boise could no longer provide the level of scholarly rigor or safety that students expect from the Wagner School and that he could no longer set a good example for those students. (See Rule 56.1, ¶¶ 5-9, 20, 21). Boise has offered no evidence that these reasons were a pretext for retaliation.

  As there is no genuine issue of material fact regarding Boise's retaliation claim, NYU is entitled to summary judgment.

  Conclusion NYU is entitled to summary judgment dismissing the amended and supplemental complaint.

  It is so ordered.


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