The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiff Abdel Raheim is a former employee of defendant New York City Board of Education (the "BOE"). In this consolidated case, Raheim, who is an Egyptian Muslim, contends that the BOE and defendant Greenberg violated his rights under Title VII by discriminating against him because of his religion and national origin by (1) firing him twice, (2) failing to hire him again, (3) failing to promote him, (4) failing to provide equal terms and conditions of employment, and (5) retaliating against him.
Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure to dismiss both complaints in their entirety. For the reasons that follow, the motion for summary judgment is granted and the complaint is dismissed.
The facts, construed in a light most favorable to plaintiff, the non-moving party, see Capobianco v. City of New York, 422 F.3d 47, 50 (2d Cir. 2005), are as follows:*fn1
1. Raheim's Background, Employment, and Dismissal From P.S. 4
Raheim was born in Egypt, and is a Muslim.*fn2 (Defs.' 56.1 Statement ¶ 1.) Raheim is a bilingual teacher who speaks Arabic. (Id.)
Raheim was hired by defendant Greenberg and the BOE to work as a substitute teacher at P.S. 4 in September 1990. (Id. ¶ 2; Pl.'s 56.1 Resp. ¶ 2.) Greenberg, a Roman Catholic, was the principal at P.S. 4 during Raheim's employment. (Defs.' 56.1 Statement ¶¶ 2, 8.)
On November 13, 1990, Greenberg visited Raheim's classroom to observe his performance. (Id. ¶ 3.) On that day, there were approximately twelve students in Raheim's classroom and no assistant teacher, even though there is supposed to be an assistant whenever there are more than ten students in the classroom. (Pl.'s 56.1 Resp. ¶ 3.) In a written report dated November 19, 1990, Greenberg gave Raheim an unsatisfactory report. (See Defs.' 56.1 Statement ¶¶ 3, 4, Ex. F.) In Greenberg's report, she wrote, inter alia, that she observed Raheim "physically restraining a child, [and] mark[ing] that [student's] work was correct when it was [not]." (Id. Ex. F.) Greenberg also observed "inappropriate behavior displayed by the students . . . [and] no consistent management plan." (Id.) Raheim signed the unsatisfactory evaluation report. (Id.) Raheim claims in his 56.1 response that Greenberg "deleted" certain portions of the evaluation, see Pl.'s 56.1 Resp. ¶ 4, but he does not indicate when or in what context Greenberg deleted the references in this report. In any event, Raheim does not contest that he was shown the report or that he signed it.*fn3 (Id.)
On November 13, 1990, Greenberg wrote a letter to Raheim informing him P.S. 4 "no longer requires your services effective November 30, 1990." (Pl.'s 56.1 Resp. Ex. 3) Raheim was fired from his position at P.S. 4 on November 30, 1990. (Defs.' 56.1 Statement ¶ 6.)
As part of Raheim's opposition papers, he submitted a "Daily Memo" dated November 26, 1990, that he claims was written by Greenberg. The Daily Memo appears to contain a number of announcements for the day, and states, in part, that "Mr Raheim will be assisting in both gym classes today." (Pl.'s 56.1 Resp. Ex. 6.) Raheim argues that this was done by Greenberg to "humiliate" him "in front [sic] the school teachers" because his position at P.S. 4 was that of a "teacher and not an assistant teacher." (Id. ¶ 6.)
A per diem teacher, "Ms. Aisiku," was hired by Greenberg at P.S. 4 as a substitute teacher at some point before Raheim was fired. (Pl.'s Dep. at 49-50.) After Raheim was fired, Aisiku took over Raheim's classroom. (Id. at 50-51.) According to Raheim, Aisiku is a "black American" and Greenberg's "girl friend" (Id. at 50; Pl.'s Opp. Mem. at 12.) Raheim submits that of the twenty-four employees at P.S. 4 when he was there, twenty-two were women, which he argues shows Greenberg's "racial policy." (Pl.'s 56.1 Resp. ¶ 7, at 11.)
On or about May 8, 1991, Raheim filed a charge of discrimination with the New York State Division of Human Rights ("NYSDHR") relating to the 1990 termination. (Defs.' 56.1 Statement ¶ 9; Pl.'s 56.1 Resp. ¶ 9.) On April 13, 1995, the NYSDHR issued a no probable cause determination. (Defs.' 56.1 Statement ¶ 10.)
2. Raheim Grieves His Dismissal From P.S. 4
After Raheim was fired from P.S. 4, he filed a grievance with the BOE alleging that, after he was fired, he was not appointed to an open position elsewhere, in violation of the collective bargaining agreement between the Union and the BOE. (Defs.' 56.1 Statement ¶ 13, Ex. L.) Raheim claims that, in April 1991, P.S. 102 was seeking an Arabic teacher. According to Raheim, Gary Barton, Deputy Executive Director of the BOE, refused to give him a letter allowing him to be appointed to the teaching position at P.S. 102. (Pl.'s 56.1 Resp. ¶ 13.) Instead, Barton wanted Raheim to serve as a substitute teacher. (Id.) By letter dated September 22, 1991, Raheim was informed by the BOE that (1) although he had interviewed for the position, the district did not want to employ him; (2) he was not eligible for the position because he had not been appointed in accordance with the BOE's agreements with the Union; and (3) even if he was eligible, he does not have any contractual right to be appointed to a specific school. (Id. Ex. 20.)
On December 16, 1992, Raheim's Union agreed to grieve the BOE's failure to place Raheim in a permanent position. (Id. ¶ 13.) Following a hearing, on or about February 1, 1993, the BOE, the Union, and Raheim entered into an agreement whereby Raheim would be assigned as a "regular substitute" to fill the vacancy at P.S. 102. (Id. Ex. 14.) In return, Raheim agreed to withdraw the grievance. (Id.)
3. Raheim's Employment and Dismissal From P.S. 102
On or about February 1, 1993, Raheim was hired as a regular substitute teacher at P.S. 102. (Defs.' 56.1 Statement ¶ 15.) a. Allegations of Sexual Harassment While Raheim was employed at P.S. 102, several female staff members made allegations that he engaged in inappropriate conduct by making unwelcome sexual advances towards them. (Id. ¶ 16.) According to a letter from the BOE Community Superintendent to Raheim, four women complained about inappropriate conduct by Raheim. (Id. Ex. Q.) Specifically, (1) the P.S. 102 school secretary complained that Raheim tried to kiss her, and that she told him to stop; (2) a teacher complained that Raheim repeatedly put his arms on her shoulder and patted her back; (3) a secretary complained that Raheim rubbed her back after she gave him his paycheck; and (4) an assistant principal complained of several incidents involving gifts and cards from Raheim, unwanted touching, and inappropriate conversations about "love between a man and a woman." (Id.) According to the letter outlining the complaints, when Raheim was questioned about these incidents, he stated to the investigators that he was just trying to be friendly and was show appreciation. (Id.) Raheim signed the letter and wrote "answers will follow" below his signature. (Id.)
Plaintiff's reply to defendant's 56.1 statement concerning allegations of his inappropriate conduct and unwelcome sexual advances goes on for six pages. (See Pl.'s 56.1 Resp. ¶ 16, at 21-27.) In his reply, however, he does not deny that the allegations were made. Instead, he disputes them and describes an acrimonious relationship with one of the complainants, his supervisor Theresa Dovi. (Id.) In particular, Raheim submits a letter from Dovi to the Principal of P.S. 102 wherein Dovi states that Raheim gave Dovi a sterling silver chain and two decorative dishes, along with a card that "spoke of the love a husband has for his wife." (Id. Ex. 16.) According to the letter, Dovi returned the gifts to Raheim. In addition, the letter describes an incident in May 1993 where Raheim "put his arm on [Dovi's] shoulder and also proceeded to rub [Dovi's] back." (Id.) According to the letter, Dovi reported the incident to the school Principal and informed Raheim that she did not appreciate him putting his arms on her. (Id.) Finally, the letter describes a telephone call between Raheim and Dovi that was overheard by a third person wherein Raheim allegedly spoke about "love between a man and a woman." (Id.)
The incidents described by Dovi were later part of an investigation by the NYSDHR, where Dovi restated in substance the allegations described in the letter to the P.S. 102 Principal, in addition to other incidents involving allegedly inappropriate conduct by Raheim. (Id. Ex. 16.)
Raheim disputes that he sexually harassed the four women at P.S. 102. He describes the letter written by Dovi as "false allegations," and that "Dovi had not showed [sic] any emotional distress of such substantial quantity or enduring quality that `no person in a civilized society should be expected to endure it.'" (Id. ¶ 16.) Raheim goes on to assert, without submitting any admissible evidence, that the other females who submitted written complaints about his actions were "forced by Dovi" to complain. (Id.)
b. Allegations of Cheating on Standardized Tests and Corporal Punishment by Raheim
On or about June 17, 1993, two investigators from the BOE made a site visit to P.S. 102 in response to an allegation of a breach of citywide testing protocol. (Defs.' 56.1 Statement Ex. R.) The investigation determined the following:
Seven students from [Raheim's class] said that Mr. Raheim read each test to the class. Students raised their hands and provided an answer for each problem. If the student gave a right answer, Mr. Raheim would instruct the class to bubble in the correct answer. If the answer given was wrong, Mr. Raheim would provide the class with the right answer.
(Id.) Raheim's 56.1 response states that he has been teaching since 1967 in private and public schools, and he had never before been accused of cheating on city or state-wide tests. (Pl.'s 56.1 Resp. ¶ 17.) He states that "teachers should make certain that students darken bubbles and completely erase errors and stray marks." (Id.) He also claims that he was not accused of cheating on several other test dates in 1993, and that his students were not provided the proper English speaking programs to allow them to pass the various tests. (Id.) Raheim claims that the P.S. 102 Principal "did not mention any words concerning the allegations of cheating on the English-speaking citywide tests of reading and math of 1993 on his notice of termination . . . which confirms the defendants' false and fraudulent representations."*fn4 (Id.) Raheim submitted handwritten notes from several students, some accusing him of cheating, and some saying he did not cheat. (Id. Ex. 18.) In addition, Raheim suggests that an apparent inconsistency in the investigator's report - that he had been working as the students' teacher since September 1992 instead of February 1, 1993 - is evidence of the investigator's "knowledge of falsity." (Id. ¶ 18.)
In addition to the allegations that Raheim cheated on city-wide tests, the investigators reported that they learned in their investigation that two third-grade students witnessed Raheim "slap Student A on the face on June 15, 1993." (Defs.' 56.1 Statement Ex. R.) As a result of this report, the investigators interviewed students from Raheim's class, including Student A. Student A reported to the investigators that Raheim
[S]lapped his face because he was talking to his friends. Mr. Abdel-Raheim punches him in the arm every day. Mr. Abdel-Raheim calls his home and tells his parents that he is bad, fights, curses, and bothers other students. As a result, his parents have placed him on punishment.
(Id.) In addition to Student A, seven other students, including six from Raheim's class, stated to investigators that they had witnessed Raheim hit Student A during the school year. (Id.) These students also reported to the investigators that Raheim "calls them animals and screams at them." (Id.) The investigators ...