United States District Court, S.D. New York
November 3, 2005.
WILLIAM B. BOISE, Plaintiff,
NEW YORK UNIVERSITY, Defendant.
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 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, ¶¶
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
At best, Boise has presented only a temporal proximity as an
indirect basis for the causal connection to support his
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
It is so ordered.
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