The opinion of the court was delivered by: Joseph F. Bianco, District Judge
In this employment discrimination case, plaintiff Vincent Valenti is a special education teacher at defendant Massapequa Union Free School District (the "School District"). Plaintiff is suing the School District for (1) intentional infliction of emotional distress ("IIED"), (2) for discriminating against him because of his gender, (3) for discriminating against him because he advocated for his disabled students, and (4) for retaliation. Plaintiff filed two separate actions in the Eastern District of New York, which are consolidated for purposes of this motion. The complaints are similar in that they both allege gender discrimination and retaliation. The second complaint adds a claim for a violation of the Americans with Disabilities Act. Defendant moves 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 complaints are dismissed.
The facts, construed in the 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:
Vincent Valenti has been employed as a special education teacher in Massapequa Union Free School District ("Massapequa" or the "District") since in or about September 1984. (Def.'s 56.1 Statement ¶ 1.)*fn1 Valenti has taught at the high school level since 1987. (Id. ¶ 2.)
1. Valenti's Evaluation and Late Proctoring Assignments in June 2001
During the 2000/2001 school year, Valenti was absent eighteen days. (Pl.'s Counter 56.1 Statement ¶ 39.)
In 2001, Valenti's supervisor, Lori Saland, discussed Valenti's attendance record with him, and wrote in the "General Comments" section of Valenti's evaluation the following:
Mr. Valenti is an excellent English teacher. He is an asset to the Special Education Department. He was frequently absent due to family issues. Hopefully, his attendance will be better next year.
(Id. ¶¶ 3, 4.) Valenti signed the evaluation on June 4, 2001. (Id. ¶ 5.) Because of the number of absences Valenti had in 2000/2001, James Maloney, the principal of Massapequa High School, asked Saland to ask Valenti about his health. (Pl.'s Counter 56.1 Statement ¶ 44.)
A female Special Education Teacher, Geri Bennett, was absent fourteen days during the 2000/2001 school year. (Id. ¶ 40.) Saland did not make any reference to the number of absences Bennett had during 2000/2001 in Bennett's evaluation. (Id. ¶ 41.)
Pursuant to the applicable Collective Bargaining Agreement, teachers were allotted ten sick days and two personal days per year. (Pl.'s Counter 56.1 Statement ¶ 42.) On or about June 7, 2001, Valenti wrote a memorandum to Saland asking her why she incorporated his attendance into his evaluation, and not into the evaluations of his female colleagues. (Id. ¶ 47.) Valenti requested that his evaluation be changed. (Id.) Saland refused to change Valenti's evaluation. (Id. ¶ 53.)
In June 2001, Saland assigned Valenti three late proctoring assignments during the final exam period. (Id. ¶ 48; Def.'s Ex. C.) Valenti wrote a letter, in red, to Saland stating the following:
In regards to the Final Exam Schedule, I can not have PM assignments because I have commitments after work. This was an issue last year. This was an issue the year before. This was also an issue the year before the year before. Why do you keep assigning me PM assignments when you know I can't stay.?? [sic] Also, I would like to know why Jack and I are the only two that have been assigned three late assignments? In addition, why do the travelling teachers have the most PM assignments?
(Id.) Saland responded on June 8, 2001, stating, inter alia, the following:
As this is the first time I worked on the assignments of teachers in our department, I have no knowledge of what has transpired in the past . . . . Your assignment for June 14th can be switched with Donna Fanning, thereby reducing one of your late assignments. In the future it would be more appropriate to see me and discuss these matters, rather than sending me a memo typed in "RED". I find that tactic totally disrespectful.
(Id.) Thereafter, on June 12, 2001, Dr. Thomas A. McKillop, Jr., one of Valenti's supervisors, wrote Valenti a memorandum, stating, inter alia, the following:
Mrs. Lori Saland has just informed me that you are refusing to proctor upcoming exams . . . on June 15th and . . . June 19th. According to Mrs. Saland your refusal is based on the fact that 2:35 PM is the contractual sign out time and you are not required to stay beyond that time . . . . [Y]our proctoring is no different than any other resource room teacher who is expected to stay for the additional hours that a student may require. May I point out also that regular education teachers are also assigned to extended time proctoring and they too will be expected to stay the additional hours . . . . I certainly hope your response to Mrs. Saland was made in haste, before you had time to analyze all the facts, and have since had the time to reconsider and retract those remarks. If not, and you continue to maintain your erroneous position, I will treat this as a direct act of insubordination and pursue the outcome to the highest level.
Thereafter, on July 3, 2001, Valenti filed a complaint with the New York State Division of Human Rights ("DHR") alleging that he had been discriminated against because of his sex by the District when Saland placed a negative comment on his evaluation form. (Def.'s 56.1 Statement ¶ 6.)
2. Valenti is Asked to Provide Lesson Plans & is Given Late Proctoring Assignments in Late 2001 and 2002
On November 13, 2001, Saland asked Valenti to provide lesson plans and other materials before his upcoming evaluation. (Id. ¶ 8.) Valenti alleges that no other teacher of equal seniority was required to provide this material. (Id. ¶ 11.)
During the week of January 22 - 25, 2002, Valenti was given late proctoring assignments. (Id. ¶ 9.) According to the January 2002 proctoring schedule, two male teachers (including Valenti), and two female teachers received late proctoring assignments in January 2002. (Id. ¶¶ 10, 11.) In June 2002, nine of the ten female teachers in the Special Education Department received late proctoring assignments, and both of the male teachers received late proctoring assignments. (Id. ¶ 12.)
Thereafter, on February 2, 2002, Valenti amended his DHR complaint to include allegations that the District had discriminated against him based on his sex by requiring him to provide lesson plans and other materials, and by assigning him late proctoring assignments. (Id. ¶ 11.)
On or about May 2002, Valenti and Fanning organized a Health Fair for students. (Pl.'s Counter 56.1 Statement ¶ 70.) During the Fair, Saland and Valenti had "difficulty communicating with each other." (Id. ¶ 71.)
On March 11, 2003, after receiving a "right to sue" letter from the EEOC, Valenti filed an action in this Court, and was assigned docket number 03-CV-1193. (Def.'s 56.1 Statement ¶¶ 14, 15.)
3. Valenti is Given Late Proctoring Assignments in June 2003 and is Subjected to Increased Observation
In June 2003, six female teachers received late proctoring assignments. (Id. ¶ 16.) One female teacher received a late proctoring assignment on two days in June 2003. (Id.) Valenti was given a late proctoring assignment on June 17, 2003, and was on standby for proctoring on June 16, 2003. (Id. ¶¶ 17, 18.) The other male teacher in the Special Education Department did not receive any late proctoring assignments in June 2003. (Id. ¶ 16.)
On October 27, 2003, Valenti received notice from Saland that he would have an inclass observation and that he would have to attend a pre-observation conference. (Id. ¶ 19.) Another of Valenti's supervisors, Colleen Terriberry, scheduled a meeting with the parent of one of Valenti's students for November 25, 2003, at 10:00 a.m., the same time Valenti was scheduled to be observed by Saland. (Id. ¶¶ 19, 20.) Valenti testified in his deposition that Terriberry told him that Saland had requested that Terriberry schedule a meeting with the parent and Valenti on that date. (Valenti Dep. at 202, 205-06.) Valenti does not recall whether Terriberry told him that Saland requested that Terriberry schedule the meeting with the parent for a particular time that day. (Id.) Terriberry testified that she was not told by Saland to schedule the meeting at the same time as Saland was observing Valenti. (Terriberry Dep. at 13.) Terriberry also testified that she never told Valenti that Saland directed her to schedule the meeting. (Id. at 14.)
On December 2, 2003, Saland told Valenti that she needed to arrange for another in-class observation with him because she did not receive a written lesson plan from Valenti prior to the previous in-class observation. (Def.'s 56.1 Statement ¶ 11.) On January 26, 2004, Valenti was notified that he would have a second classroom observation on February 9, 2004. (Id. ¶ 23.) A female teacher in the District, Donna Fanning, was required to submit lesson and grade plans prior to her classroom observations more than half of the times during her career. (Pl.'s Counter 56.1 Statement ¶ 24.) Over the course of Fanning's career, she was observed more than once in four different school years. (Id. ¶ 56.) Only one of these occasions was after she was tenured, and this was at her request. (Id.)
On February 27, 2004, Jeff Silberman, a school psychologist, entered Valenti's classroom while Valenti was administering a science test and attempted to speak with Valenti about his annual review meetings and recommendations for the placements of Valenti's students. (Id. ¶ 25.) When Valenti told Silberman he could not speak to him during class, Silberman remained in the classroom. (Id.) Silberman unsuccessfully tried ...