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Frierson-Harris v. Hough

August 24, 2007

MICHAEL WESLEY FRIERSON-HARRIS, PH.D., A/K/A MICHAEL WESLEY HARRIS, PH.D., PLAINTIFF,
v.
JOSEPH C. HOUGH, JR., PH.D., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, L. ROBERT BATTERMAN, ESQ., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, EUGENE EISNER, ESQ., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, DAVID E. FRAZER, ESQ., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, JOHN F. FULLERTON, III, ESQ., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, EUAN K. CAMERON, PH.D., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, DAVID M. CARR., PH.D., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, ANA MARIA DIAZ-STEVENS, PH.D., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, JOHN A. MCGUCKIN, PH.D., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, CHRISTOPHER L. MORSE, PH.D., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, ANN B. ULANOV, PH.D., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, JANET R. WALTON, ED.D., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, RANDALL H. BALMER, PH.D., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, MICHAEL MALONEY, AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, NICK ZUHUSKY, AS AN OFFICER OF DESPATCH MOVING AND STORAGE COMPANY, INC., AS AN INDIVIDUAL AND AS A CO-CONSPIRATOR, AND DESPATCH MOVING AND STORAGE COMPANY, INC., DEFENDANTS.



The opinion of the court was delivered by: Denise Cote, District Judge

OPINION & ORDER

Pro se plaintiff Michael Wesley Frierson-Harris, Ph.D. ("Harris"), a former professor at Union Theological Seminary ("Seminary"), brought this civil rights action against Seminary President Joseph C. Hough, Jr., Ph.D. ("Hough"), seven Seminary professors, Seminary attorneys L. Robert Batterman ("Batterman") and John F. Fullerton, III ("Fullerton"), David Frazer and another attorney who once represented Harris, a Barnard College professor, an employee of the firm that managed Seminary buildings, a moving company retained by the Seminary, and the moving company's owner. Harris filed his original complaint on March 21, 2005 and first amended it on July 27. Motions to dismiss by defendants Batterman, Fullerton, and Frazer were granted, and Harris was granted leave to amend his Section 1985 claim against Frazer. See Frierson-Harris v. Hough, No. 05 Civ. 3077(DLC), 2006 WL 298658 (S.D.N.Y. Feb. 7, 2006); Order of March 17, 2006. The five Seminary professors and administrators named in the first amended complaint received an extension of time to answer that complaint and answered on September 1. On April 14, 2006, Harris filed a motion to amend his complaint. His motion was granted, and he filed a second amended complaint on May 5, 2006. The second amended complaint named defendants whom Harris had not previously named, as well as a defendant against whom the charges in the first amended complaint had been dismissed. All of the defendants except one of Harris's former attorneys, who is not at issue in this Opinion, filed motions to dismiss the second amended complaint. By Opinion and Orders of December 5, 2006 ("December Opinion and Orders"), certain claims were dismissed. See Frierson-Harris v. Hough, No. 05 Civ. 3077(DLC), 2006 WL 3511881 (S.D.N.Y. Dec. 5, 2005); Orders of December 5, 2006. The following claims remain following the December Opinion and Orders: (1) Section 1981 claims against Hough and Batterman; (2) Section 1985 conspiracy claims against Hough and professors Euan K. Cameron, John A. McGuckin, Janet R. Walton, Ana Maria Diáz-Stevens, Ann B. Ulanov, David M. Carr, and Christopher L. Morse (collectively, "Seminary defendants"); and (3) the New York State Human Rights Law ("NYSHRL") § 296 claim against Batterman. The Seminary defendants move for summary judgment on all claims against them. Their motion is granted.

Before addressing the merits of the summary judgment motion, it is necessary to describe the procedural context for the motion and Harris's objections to the entry of a decision on the motion. Pursuant to an Order of March 21, 2006 ("March 2006 Scheduling Order"),*fn1 fact discovery closed on November 17, 2006, and expert discovery closed on February 23, 2007. An Order of December 27, 2006 confirmed that the March 2006 Scheduling Order remained in effect. Pursuant to the March 2006 Scheduling Order, Harris's opposition to this motion for summary judgment was due on April 27, 2007. By letter dated April 25, Harris requested an extension of time to file his opposition on the grounds that he had faced delay in obtaining certification of documents from a New York State Article 78 proceeding and that he had encountered difficulties in combing through the facts and legal arguments that the Seminary defendants had asserted in support of their motion for summary judgment. He represented that he would "be able to submit opposition papers supported by ample documentary evidence and by citation to relevant jurisprudence as mandated by the court's rules, should the court see fit to grant the enlargement." By Order dated May 2, Harris's opposition deadline was extended to May 18, 2007.

To this date, however, Harris has not submitted a Rule 56.1 statement, affidavits or any substantive arguments in opposition to the motion. On May 18, he filed a document that he characterized as objections to filing opposition papers. He argued therein that the Seminary defendants' motion should not be considered because they failed to make initial disclosures pursuant to Rule 26(a)(1), Fed.R.Civ.P., and thus rested their summary judgment arguments on evidence that they had not previously disclosed. He also argued that the defendants had not filed timely answers to the second amended complaint.

Neither of these arguments has merit. First, Harris had ample opportunity prior to receipt of this motion to complain that the defendants were not complying with their initial disclosure or other discovery obligations. He did not do so, although he demonstrated an ability to communicate with the Court regarding many other matters. Secondly, the defendants did make initial disclosures to him. Additionally, he does not identify any specific documents or information which he requested and the Seminary defendants failed to produce.*fn2

As to Harris's second argument, he offers no theory on which Batterman's failure to respond to the second amended complaint should prevent a summary judgment motion by the Seminary defendants.*fn3 The Seminary defendants filed answers to the second amended complaint in February 2007. Those Seminary defendants who had been named in the first amended complaint had filed an answer to that complaint.*fn4 Regardless of whether the answers to the second amended complaint were timely filed, Harris has not previously complained about the delay. More importantly, he had nearly three months to peruse the answers before the May 18 deadline for filing an opposition to the motion to dismiss.

The Order of May 2, 2007 clearly informed Harris that no extension of the May 18 deadline for opposing the motion for summary judgment would be granted. The notices the Seminary defendants and this Court gave to the plaintiff explained that a failure to submit affidavits or documentary evidence contradicting the material facts asserted by the defendants could result in the Court accepting the defendants' factual assertions as true and granting judgment in the defendants' favor without a trial. Harris's letter of April 25 showed that he understood his obligation to submit evidence pursuant to Federal Rule 56 and Local Rule 56.1. Therefore, for the purposes of this motion, the Court treats all of the Seminary defendants' Rule 56.1 assertions as true to the extent that they are supported by the defendants' evidentiary submissions. See LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 211 n.3 (2d Cir. 2001). The following facts are undisputed.

Harris's Initial Housing Assignment

The Seminary is governed by a Board of Trustees, which has the exclusive power to hire and fire faculty and set the terms and conditions of their employment. The Seminary hired Harris in April 1998. The Seminary requires faculty to live on campus and provides them with housing at no cost. At the time of Harris's hiring, the Seminary did not have a policy governing the manner in which a newly hired professor's housing would be chosen. It offered Harris either of two apartments in McGiffert Hall. Harris requested an assignment to a different apartment, in Knox Hall apartment 6E ("Knox 6E"). Knox 6E was ultimately assigned to Diáz-Stevens, who had been teaching at the Seminary for about six years. Harris grieved his assignment in a letter to the Chair of the Seminary's Board of Directors.

In December 1998, Harris and the Seminary resolved their housing dispute. As reflected in an agreement that Harris and the Seminary executed on December 10, 1998, Harris and his family were assigned to apartment 4W in Knox Hall ("Knox 4W"). Harris and one dependent moved into Knox 4W in early 1999. All of these events occurred before Hough assumed the title of Seminary President, which occurred in July 1999.

Changes to the Ph.D. Program and Lease of Knox Hall

On September 6, 2001, in response to serious financial difficulties, the Executive Committee of the Board of Trustees adopted a resolution declaring that the Seminary was "in a state of financial exigency." Around the same time, partly in response to the financial crisis, the faculty began the process of changing the Ph.D. program. Harris largely absented himself from meetings at which the faculty discussed changes to the Ph.D. program and curriculum. At Hough's suggestion, the faculty decided to decrease the number of Ph.D. candidates to be admitted to the Seminary in order to increase the stipend offered to each candidate. They also changed the requirements for Ph.D. candidates, requiring them to engage in more cross-disciplinary study than the Seminary had previously required.

Additionally, after faculty and other members of the Seminary community discussed various options to address the Seminary's financial difficulties, the Seminary decided to lease out Knox Hall, thus requiring that the faculty members living there relocate. According to the Seminary defendants' accounting expert, leasing Knox Hall was a "reasonably prudent step" for the Seminary to take to address its financial difficulties.

Hough drafted procedures for reassigning the faculty who would be forced to move from Knox Hall ("Reassignment Procedures"). On November 21, 2002, the faculty voted unanimously to approve the Reassignment Procedures. Harris did not attend faculty meetings during the 2002-2003 academic year. He was on sabbatical during the vote and did not participate even though he was living in New York at the time. On December 5, the Seminary's Board of Trustees approved the Reassignment Procedures. The Reassignment Procedures provided in part that All new apartment ...


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