The opinion of the court was delivered by: Gerard E. Lynch, District Judge
Plaintiff Cindy Koumantaros brings this action pursuant to Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, 42 U.S.C. § 1981, 42 U.S.C. § 1983, the New York State Human Rights Law, N.Y. Exec. Law §§ 296 et seq. ("SHRL"), the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-107 et seq. ("CHRL"), and the due process and equal protection clauses of the federal and New York state constitutions, alleging discriminatory dismissal from the Physician Assistant Program (the "Program"), an educational curriculum operated by the City College of New York ("CCNY"). Plaintiff also alleges that defendant took adverse action against her in retaliation for engaging in protected activity under Title VI, and that defendant maintained a racially hostile educational environment. Defendant moves for summary judgment dismissing plaintiff's claims in their entirety. Plaintiff cross-moves for partial summary judgment on her due process claims. Defendant's motion will be granted in part and denied in part. Plaintiff's motion will be denied.
The following facts are undisputed or established by undisputed documentary evidence. Additional factual contentions will be addressed in later portions of this opinion.
Plaintiff, a white woman, applied for admission to the Program in September 2001. (Def. Exh. G.) The Program is a curriculum within CCNY, which is a branch of the City University of New York ("CUNY"). (Def. Exh. D.) CUNY is a public university established under the Education Law of the State of New York. (Id.) Plaintiff was initially waitlisted for admission to the Program, but she was eventually admitted as a student in the Class of 2004. (Pl. Dep. 26; Def. Exh. H.) Plaintiff began attending classes in March 2002. (Pl. Dep. 40.)
The Program consists of 18 months of classroom instruction, followed by 13 months of clinical training in various medical fields. (Def. Exh. F at 16.) The Program's rules require students to obtain a grade of "C" or better in all pre-clinical courses to progress to the clinical year of the Program. (Def. Exh. F at 25; see also Pl. Dep. 36 (stating plaintiff's understanding that "the minimum exam grade" to remain in the Program is 70).) One of the Program's required courses is Physiology II, which is offered in the Spring semester each year. (Def. Exh. F at 17). Physiology II is "a major component [of the Program], which no one is supposed to move forward without [passing]." (Wright Dep. 150.)
Plaintiff enrolled in Physiology II during the Spring 2003 semester. (Def. Exh. K.) On May 27, 2003, plaintiff was informed that she had failed the Physiology II final exam with a grade of 60, thereby giving her a failing final course grade of 68 in Physiology II. (Def. Exh. J; Def. Exh. K; Wright Aff. ¶ 18.) Shortly thereafter, on June 5, 2003, a Physiology II make-up exam was given to students who had failed the final exam, including plaintiff. (Pl. Dep. 36; Stugensky Aff. ¶ 10.) Students who receive a passing grade on a make-up exam are considered to have passed the course. (Garvey Aff. ¶ 9.) Plaintiff was informed that she "must pass this [make-up] exam to continue in the Summer semester." (Def. Exh. J.)
Plaintiff failed the make-up exam with a grade of 49, thereby giving her a failing grade in Physiology II. (Def. Exh. K.) As a result of her Physiology II failure, plaintiff was referred to the Course and Standing Committee ("CSC"). (Wright Aff. ¶ 12.) The CSC is responsible for enforcing the Program's academic standards, assessing the academic and clinical progress of all students, and making recommendations to the Program Director, Assistant Dean Adrian Llewellyn, with respect to remedial action or academic sanctions where appropriate. (Def. Exh. F at 36; Wright Aff. ¶ 5.) However, the Program Director has sole final authority with respect to academic sanctions or decisions affecting the standing or matriculation of a student in the Program. (Llewellyn Aff. ¶ 15; Stugensky Aff. ¶ 7; Wright Aff. ¶ 7.)
The CSC considered plaintiff's Physiology II failure during meetings held on July 11 and 16, 2003. (Def. Exhs. L, O.) The CSC recommended that the instructor of Physiology II, Dr. Maureen Garvey, offer plaintiff a second Physiology II make-up exam with a two-week preparation period and review assistance from Edwin Eustaquio, the Program's Senior Clinical Coordinator. (Def. Exh. O.) However, Dr. Garvey did not offer second make-up exam to plaintiff.*fn1 As a result, plaintiff's Physiology II failure remained in place. (Def. Exh. P.)
Thereafter, by letter of July 30, 2003, the CSC advised plaintiff that, due to her failure in Physiology II, she would be placed on academic probation for one year. (Id.) In addition, the Program's official policy, as outlined in the Student Handbook, is to place a student who fails a pre-clinical course in a sort of educational limbo -- a student who fails a pre-clinical course "must return the following year to repeat the course, and may not progress to other program courses until the failed course has been successfully completed."*fn2 (Def. Exh. F at 26.) This policy is known as "recycling" or "serving a prescriptive year." (Stugensky Aff. ¶ 8.) Thus, because plaintiff failed a pre-clinical course, the Program's official policy was to "recycle" her, that is, to postpone her progress until she passed Physiology II. As pre-clinical courses are only offered once a year, had plaintiff in fact been "recycled," she would not have been allowed to progress in the Program until after the Spring 2004 semester, when Physiology II was next offered. (Def. Exh. F at 19.)
But the Program did not apply its official policy to plaintiff, and plaintiff was never "recycled." Instead, plaintiff was allowed to progress in the Program and enroll in classes in the Summer 2003 semester. (Stugensky Aff. ¶ 17.) As a result of plaintiff's Physiology II failure, however, the Program delayed plaintiff's entry into clinical rotations for six weeks during the Summer 2003 semester. (Def. Exh. P.) During this six-week delay, plaintiff was required to meet with Dr. Aftab Hassan, the Program's Educational Specialist, "to demonstrate competency in Physiology [II]." (Stugensky Aff. ¶ 17; see id. ("It was the CSC's expectation that plaintiff . . . would demonstrate a satisfactory level of Physiology II knowledge after six-weeks of exclusive, intensive review with [Academic Skills Enhancement Program] assistance, and progress to her clinical year thereafter.").) In addition, plaintiff was advised that, should she fail any of the summer courses, "[she would be] brought before the [CSC] for review and recommendation for dismissal." (Def. Exh. P.)
Plaintiff enrolled in the Geriatrics course during the Summer 2003 semester. (Def. Exh. T.) In August 2003, plaintiff was informed that she had failed the Geriatrics final exam with a grade of 59, thereby giving her a failing grade in the course. (Pl. Aff. ¶¶ 58, 62.) On September 4, 2003, plaintiff was called before the CSC. According to the Program's official policy, any student who fails two or more courses "will be dismissed," subject to the Program's discretion. (Def. Exh. F at 26.) Therefore, according to the Program's official policy, plaintiff's failure in Geriatrics -- occurring less than three months after her failure in Physiology II -- put her at risk of dismissal from the Program.
However, at the September 4, 2003 meeting, plaintiff claimed that her Geriatrics exam had been erroneously graded. (Def. Exh. R; Pl. Aff. ¶ 68; Stugensky Aff. ¶ 20.) The CSC adjourned the meeting for a short time to allow plaintiff to review her exam. (Pl. Aff ¶ 68; Stugensky Aff. ¶ 21.) Plaintiff's review of the exam confirmed that she had indeed failed the exam. (Id.)*fn3 Accordingly, on September 4, 2003, the CSC unanimously voted to dismiss plaintiff from the Program. (Def. Exhs. R, S; Pl. Aff. ¶ 68.)
On December 23, 2003, plaintiff filed the complaint that initiated the present action. On March 16, 2006, defendant moved for summary judgment. Plaintiff submitted her response and cross-motion for partial summary judgment on June 9, 2006. Defendant submitted its reply and its response to plaintiff's cross-motion on October 4, 2006. Plaintiff submitted her reply on October 18, 2006.
I. Summary Judgment Standards
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The Court's responsibility is to determine if there is a genuine issue to be tried, and not to resolve disputed issues of fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court must draw all reasonable inferences and resolve all ambiguities in the nonmoving party's favor, and construe the facts in the light most favorable to the nonmoving party. Id. at 254-55. However, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted).
The party seeking summary judgment bears the burden of showing that no genuine factual dispute exists. See Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995). Once the moving party has made a showing that there are no genuine issues of material fact, the burden shifts to the nonmoving party to raise triable issues of fact. Anderson, 477 U.S. at 250. A genuine issue for trial exists if, based on the record as a whole, a reasonable jury could find in favor of the nonmoving party. Id. at 248.
Rule 56 also provides that an affidavit submitted in opposition to summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed. R. Civ. P. 56(e). "[P]ersonal knowledge" does not include hearsay: "[H]earsay testimony . . . that would not be admissible if testified to at the trial may not properly be set forth in [the Rule 56(e) affidavit]." Beyah v. Coughlin, 789 F.2d 986, 989 (2d Cir. 1986) (alterations in original) (citation and internal quotation marks omitted). In addition, "conclusory statements or mere allegations [are] not sufficient to defeat a summary judgment motion." Davis v. State of New York, 316 F.3d 93, 100 (2d Cir. 2002); see also id. ("The nonmoving party must go beyond the pleadings and by [his or] her own ...