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Shub v. Westchester Community College

April 7, 2008


The opinion of the court was delivered by: Conner, Sr. D.J.


Plaintiff, Michael Shub, brings suit against Joseph N. Hankin, President of Westchester Community College ("WCC"), in his individual capacity, WCC and the County of Westchester (the "County"). Plaintiff, who was an Associate Professor of Mathematics at WCC until 1999, alleges he was denied a position as an Adjunct Professor for the Spring 2006 semester in retaliation for his protected First Amendment activities at WCC and due to his age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621, et seq. He also alleges that he was denied an Adjunct position for the Fall 2006 semester and thereafter in retaliation for having filed a Charge of Discrimination under the ADEA with the Equal Employment Opportunity Commission ("EEOC").*fn1 Defendants now move for summary judgment. They argue that plaintiff did not engage in protected First Amendment activities, the reason he was not hired was not retaliatory, the person they hired was more qualified than plaintiff and plaintiff cannot establish that he was not hired because of his age. Defendants also argue that plaintiff cannot bring his retaliation claims under the ADEA because he did not file timely charges with the EEOC. For the following reasons, defendants' motion is granted in part and denied in part.


The contentious history between these parties dates back many years and involves several prior litigations and arbitrations. Plaintiff was hired by WCC in 1970 and worked in the Mathematics Department as an Assistant and later Associate Professor. (Def. R. 56.1 Stmt. ¶¶ 1, 7.)

He left that position in August 1999; the parties contest whether he resigned or retired. Plaintiff states he retired pursuant to New York's Early Retirement Option. (Pl. R. 56.1 Stmt. ¶ 1.) Defendants state he resigned pursuant to a 1999 Settlement agreement between the parties. (Def. R. 56.1 Stmt. ¶ 1.) The events leading to the Settlement form the background for the contentious relationship.

I. Plaintiff's First Amendment Activities at WCC

Plaintiff was a member of the teacher's union and served on the executive board in the early 1970's at a time when, he claims, the union had "a very controversial and adversarial relationship with [Hankin]" and opposed his reappointment as President of WCC. (Pl. R. 56.1 Stmt. ¶¶ 60-61.) In the 1980's plaintiff was still an active member of the union and participated in several public demonstrations with respect to ongoing contract negotiations. (Id. ¶ 62.) These demonstrations were covered by the media. (Id.)

Plaintiff also served as Chair of the Academics Committee of the Faculty senate. (Id. ¶ 63.) In the mid to late 1970's the Committee recommended that no credit be offered for a mathematics open enrollment course, a position with which Hankin disagreed. (Id.) Hankin and plaintiff appeared before the WCC Board of Trustees to present their opposing viewpoints; plaintiff presented documentation to show the course was the equivalent of a junior high school class. (Id.) Plaintiff felt his relationship with Hankin "turned sour after that time." (Id.)

Plaintiff pursued an issue with Hankin in the early 1980's involving "inequitable treatment at WCC whereby members of the English Department received the benefit of a four-day schedule but other departments were denied the same benefit." (Id. ¶ 64.) Also during the 1980's plaintiff was an "outspoken" member of a committee that investigated whether Hankin inappropriately used Faculty Student Association funds in a preferential manner for events that would benefit only select faculty members. (Id. ¶ 65.) Plaintiff claims Hankin was the "subject of extensive criticism in the Faculty Senate surrounding this highly publicized controversy." (Id. ¶ 66.) Plaintiff contends that after these activities he stopped receiving positive letters and other accolades from Hankin. (Id. ¶ 68.)

II. WCC Prefers Charges Against Plaintiff

In 1989 plaintiff was charged with conduct unbecoming a member of the staff based on allegations that he sexually harassed female students. (Def. R. 56.1 Stmt. ¶ 8.) Pursuant to the Collective Bargaining Agreement ("CBA") between the union and Westchester County, a neutral arbitrator was appointed and determined that plaintiff did act in a manner unbecoming a member of the faculty and should be suspended one semester without pay. (Id. ¶ 9; Poppick Decl., Ex. 5.) Plaintiff claims these charges were preferred in retaliation for his earlier First Amendment activities, and points out that the arbitrator felt that discharging plaintiff for his misconduct, as urged by Hankin, was excessive. (Pl. R. 56.1 Stmt. ¶¶ 8-9; Poppick Decl., Ex. 5.)

In July 1994 plaintiff was again charged with sexually harassing female students. (Def. R. 56.1 Stmt. ¶ 10.) He was suspended from classroom teaching pending the outcome of the charges and was reassigned to several curriculum projects with no reduction in basic salary. (Id.) During the course of the arbitration of these charges, plaintiff testified about Hankin's inappropriate use and written compilation of sexual jokes on or off campus. (Pl. R. 56.1 Stmt. ¶ 71.) Also, during the arbitration testimony plaintiff's lawyer asked Louis Rotando, Chairman of the Mathematics Department, about his sale of textbooks for large sums of money.*fn2 (Id. ¶ 72; Berg Aff., Ex. 1 at 132 & Ex. 3 at 184-85.) Plaintiff states his relationship with Rotando changed after that and Rotando became "very cold" to him. (Pl. R. 56.1 Stmt. ¶ 73.)

In November 1994 plaintiff commenced an action in this Court alleging that defendants violated his First and Fourteenth Amendment rights by denying him procedural due process when he was suspended as a result of the 1994 charges. (Def. R. 56.1 Stmt. ¶ 11); Shub v. Hankin, 869 F. Supp. 213 (S.D.N.Y. 1994). The court granted defendants' motion to dismiss, concluding that defendants did not violate procedural due process by acting pursuant to the CBA, notwithstanding plaintiff's claim of retaliation for exercising his rights of free speech and association. Shub, 869 F. Supp. at 220. The court additionally concluded that the impartiality of the arbitrator in the prior misconduct proceedings "remove[d] any taint from the fact that [] Hankin has previously charged [plaintiff] with sexual harassment." Id.

A. The Settlement Agreement

The parties entered into a Settlement in 1999, in which WCC agreed to withdraw with prejudice the charges against plaintiff and expunge the charges from his file in exchange for plaintiff's resignation from WCC on or before August 31, 1999 and avoidance of contact with students between the date of the agreement and the resignation date. (Def. R. 56.1 Stmt. ¶¶ 13-14; Poppick Decl., Ex. 9.) The Settlement also provided that if the State of New York offered an early retirement incentive in 1999 plaintiff could avail himself of the incentive at his discretion. (Def. R. 56.1 Stmt. ¶ 14) Pursuant to the Settlement plaintiff provided WCC with a general release and WCC paid plaintiff $75,000 in salary to which he was entitled. (Id.) In the general release, plaintiff released defendants from all actions, claims and demands that he "ever had, now [has] or hereafter can, shall or may, have for, upon, or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date of this release." (Poppick Decl., Ex. 10.)

Plaintiff submitted to the County a written notice of intent to participate in the 1999 Early Retirement Incentive on August 9, 1999. (Pl. R. 56.1 Stmt. ¶ 1; Berg Aff., Ex. 8). Hankin sent plaintiff a letter on September 7, 1999 congratulating him on taking the Early Retirement, and again on October 19, 1999 notifying him that the Board of Trustees accepted his notice of retirement. (Berg Aff., Ex. 8)

B. Plaintiff's Return to WCC

At the time of the Settlement, plaintiff did not intend to return to WCC after August 31, 1999 because he had accepted a position to teach at Norwalk Community College for the Fall 1999 semester. (Def. R. 56.1 Stmt. ¶ 15; Poppick Decl., Ex. 3, 59-60.). He understood that Hankin did not want him on the WCC campus interacting with students. (Def. R. 56.1 Stmt. ¶ 16.) Hankin agreed to settle the second charges against plaintiff because he believed that in exchange plaintiff would never return to WCC to teach or interact with students. (Id. ¶ 18; Hankin Decl. ¶ 9(f).) This, however, was clearly not plaintiff's understanding. Plaintiff thought he was not to come on campus and interact with students only during the time period specified in the Settlement, between July 23, 1999 and August 31, 1999. (Pl. R. 56.1 Stmt. ¶ 16; Poppick Decl., Ex. 3 at 58-59.)

In fact, in November 1999, plaintiff applied to teach as an Adjunct at WCC for the Spring 2000 semester. (Def. R. 56.1 Stmt. ¶ 19.) Rotando received plaintiff's request and was unsure how to proceed because of the legal proceedings at the time; he testified that he may have sent copies to Mignogna, the academic dean and Hankin. (Pl. R. 56.1 Stmt. ¶ 19; Berg Aff., Ex. 1 at 140-41.)*fn3 Hankin was not sure how he received plaintiff's request to teach but he imagines that whoever received the request passed it along to him because the settlement and the issue of sexual harassment on the campus was "fair knowledge." (Berg Aff., Ex. 4 at 52-53, 59.) He does not recall discussing plaintiff's request to teach or the prior sexual harassment allegations with Rotando or Raymond Mignogna, Associate Dean for the Division of Mathematics, but he probably discussed it with his cabinet and the county attorney's office. (Id. at 56-57.) Hankin replied to plaintiff's request by letter dated December 2, 1999 stating that his request could not be honored because his "retirement was a term of the settlement in an arbitration in which [he was] charged with 'Conduct Unbecoming A Member of the Staff.'" (Def. R. 56.1 Stmt. ¶ 19.) The union thereafter filed a grievance on plaintiff's behalf in January 2000. (Id. ¶ 20.)

While the grievance was pending, the County filed a proceeding in the Supreme Court of the State of New York, County of Westchester, seeking a declaration that the grievance was barred by the 1999 Settlement. (Id. ¶ 21.) The County's petition was denied by the court on May 31, 2000, and the judge determined that the Settlement did not explicitly preclude plaintiff from consideration for future employment at WCC. (Id.)*fn4

In April 2002, an arbitrator sustained the union's grievance, determining that plaintiff qualified as a retiree under the CBA and, therefore, was entitled to be considered for a position and back pay for the semesters WCC declined to assign courses to him. (Id. ¶ 22.) As a result WCC paid plaintiff approximately $65,000 in back pay and assigned courses to him as an Adjunct beginning in the Fall 2002 semester. (Id. ¶ 23.) Because of plaintiff's retiree status he was put on a priority list to teach adjunct classes, pursuant to the CBA. (Pl. R. 56.1 Stmt. ¶ 23.)*fn5

Plaintiff taught statistics as an Adjunct during the Fall 2003 semester and the Spring and Fall 2004 semesters. (Id.; Def. R. 56.1 Stmt. ¶ 23.) He did not teach for the Fall, Spring and Summer 2005 semesters. (Def. R. 56.1 Stmt. ¶ 23.)

III. WCC's Need for an Adjunct Professor in February 2006

During the early part of the Spring 2006 semester WCC was in need of an Adjunct to teach statistics because the professor teaching the class, Professor Mel Bienenfeld ("Bienenfeld"), took an unexpected leave of absence. (Id. ¶ 33.) On January 27, 2006, Sean Simpson ("Simpson"), Assistant Chair and Adjunct Coordinator for the WCC Mathematics Department, sent a memo, that plaintiff received, stating that immediate coverage was needed for two statistics classes and one algebra class for the remainder of the semester. (Id. ¶ 34.) The memo explained that courses would be assigned according to priority under the CBA and qualifications to teach the course. (Id.)

A. The Applicants

Plaintiff, Peter Mucci ("Mucci") and one other person, applied to teach the two statistics classes. (Id. ¶ 39.) At this time Mucci was thirty-seven years old and plaintiff was sixty-two years old. (Pl. R. 56.1 Stmt. ¶¶ 165-66.) Mucci was already teaching a section of the same statistics course that semester, having applied to teach as an Adjunct for the prior semester. (Def. R. 56.1 Stmt. ¶¶ 24, 39.) Mucci earned a Bachelor of Science degree, summa cum laude, in mechanical engineering from the State University of New York at Buffalo and a Master of Science degree in mechanical engineering from Ohio State University, where he was a teaching/research assistant and taught undergraduate courses that had mathematical content. (Id. ¶ 25.) His undergraduate and graduate school curriculums included several mathematics courses. (Id.) Mucci also took graduate level courses in mathematics and pedagogy at City University of New York during 2002 and 2003, including a statistics course in which he received an "A" grade. (Id. ¶ 26.) He taught high school courses in New York City in algebra, geometry, probability and trigonometry from 2002 to 2004. (Id. ¶ 27.) He was employed by The Trane Company from 1994 to 1999 and General Electric Company ("GE") from 1999 to 2001 as a mechanical engineer; at GE he had training in statistical methodology and used math in his employment. (Id. ¶ 28.)

Plaintiff earned a Bachelor of Science and a Master of Arts in Mathematics from New York University. (Pl. R. 56.1 Stmt. ¶ 144.) Plaintiff took more courses in mathematics than Mucci. (Id. ¶¶ 145-46.)*fn6 Plaintiff was also certified to teach mathematics at the high school level. (Id. ¶ 147.) All in all, plaintiff had approximately thirty years of full-time teaching experience plus four years of adjunct teaching experience. (Id. ¶ 152.)

Mucci interviewed for a position to teach at WCC with Joyce McQuade ("McQuade"), the Adjunct Coordinator at the time, during the summer of 2005. (Def. R. 56.1 Stmt. ¶ 29; McQuade Decl. ¶ 2; Mucci Decl. ¶ 6.) He provided her with a copy of his resume, his transcripts and the application and background data check forms. (McQuade Decl. ¶ 2; Mucci Decl. ¶ 6.) Mucci was hired as an Adjunct in the Mathematics Department for the Fall 2005 semester. (Def. R. 56.1 Stmt. ¶ 29.) During the Fall 2005 semester McQuade told Rotando that Mucci had the qualifications to teach statistics, she thought highly of him and he should be considered for teaching that course. (Id. ¶ 30; McQuade Decl. ¶ 4; Rotando Decl. ¶ 2.) Rotando reviewed Mucci's resume and transcripts, spoke with Mucci about the work he did for GE that involved statistics and was impressed with him. (Def. R. 56.1 Stmt. ¶ 31; Rotando Decl. ¶ 3; Poppick Reply Decl. ¶ 6.)*fn7 Mucci was re-hired to teach for the Spring 2006 semester and was assigned the statistics course before anyone knew there would be a need for additional coverage for other sections due to a professor's emergency leave of absence. (Def. R. 56.1 Stmt. ¶ 32; Poppick Reply Decl. ¶ 5.)

Plaintiff believed that he was entitled to priority for the position under the CBA as a "retiree," even though he did not teach for three consecutive semesters during 2005. (Def. R. 56.1 Stmt. ¶ 41.) In addition to the clause regarding the priority list for Adjuncts, section 3.9(f)(3) of the CBA provides that "[t]hose adjunct faculty who choose not to teach at all for three consecutive semesters (including summer) will be removed from the priority list." (Poppick Decl., Ex. 16.) Plaintiff, however, believed that retirees were in a different category. (Def. R. 56.1 Stmt. ¶ 41.)

B. Defendants' Decision

After Simpson heard from plaintiff, Mucci and the other applicant, he told Rotando and Mignogna the names of the interested candidates. (Simpson Decl. ¶ 3.) Mignogna asked Simpson if plaintiff had taught in the last three semesters. (Berg Aff., Ex. 6 at 52-53.) During a second conversation Simpson told Mignogna that plaintiff had not taught in the last three semesters and Mignogna then told Simpson that plaintiff was therefore not on the priority list. (Id.) Simpson told Mignogna that he preferred Mucci because Mucci was already teaching a section of the same course. (Id.; Simpson Decl. ¶ 4.)

Rotando and Mignogna thought that since plaintiff had not taught for three consecutive semesters in 2005 he was not automatically entitled to teach the courses based on priority. (Def. R. 56.1 Stmt. ¶ 42; Mignogna Decl. ¶ 3; Rotando Decl. ¶¶ 5-6.)*fn8 To confirm this, Mignogna asked Marjorie Glusker, Vice President and Dean of Continuing Education, whether an Adjunct who had not taught for three consecutive semesters was on the priority list. (Def. R. 56.1 Stmt. ¶ 43; Mignogna Decl. ¶ 5; Glusker Decl. ¶ 2.)*fn9 He also wanted to check whether or not the county executive orders regarding background checks would impact the college's hiring decision. (Berg Aff., Ex. 2 at 33.)*fn10 Glusker asked WCC labor relations specialist Michael Wittenberg the question Mignogna posed to her about the priority list and Wittenberg responded that the Adjunct was eligible to teach but was not on the priority list. (Def. R. 56.1 Stmt. ¶ 44; Glusker Decl. ¶ 3; Wittenberg Decl. ¶¶ 2-3.) Glusker conveyed this to Mignogna who conveyed the information to Rotando. (Def. R. 56.1 Stmt. ¶ 44; Glusker Decl. ¶ 3; Mignogna Decl. ¶¶ 6-7; Rotando Decl. ¶ 6.) Rotando told Mignogna he wanted to hire Mucci and Mignogna said he could hire whomever he preferred. (Mignogna Decl. ¶ 7; Rotando Decl. ¶ 6.)*fn11 Simpson was told by Rotando or Mignogna to tell Mucci he was selected to teach the statistics classes and to tell plaintiff that he was not. (Simpson Decl. ¶ 5.) Mucci was then hired to teach the two statistics classes. (Def. R. 56.1 Stmt. ¶ 45.)

Rotando states that he hired Mucci because Mucci was already teaching a section of the same statistics course, graduated summa cum laude, received an "A" in a graduate statistics course, taught undergraduate engineering courses with mathematical content, had training in statistics at GE and received a favorable recommendation from McQuade. (Def. R. 56.1 Stmt. ¶ 46; Rotando Decl. ¶¶ 3, 5, 8.) Additionally, although Mucci did not have a mathematics degree, his undergraduate and graduate course-work included courses in mathematics and applied mathematics. (Poppick Reply Decl., Ex. 22 at 166.) Hankin was not consulted nor did he participate in the decision made in February 2006 to hire Mucci instead of plaintiff. (Def. R. 56.1 Stmt. ¶ 48; Hankin Decl. ¶¶ 3, 7; Mignogna Decl. ¶ 10; Rotando Decl. ¶ 6.) Rotando and Mignogna did discuss whether to hire Mucci or plaintiff. Rotando told Mignogna that since they were not obligated to hire plaintiff because he was no longer on the priority list, he thought Mucci was the better choice and Mignogna agreed because Mucci was currently teaching the course and had an outstanding record and Mucci would not need a background check as plaintiff would, and they needed coverage for the class quickly. (Berg Aff., Ex. 2 at 55-56.)*fn12

At his deposition, Rotando stated he did not compare plaintiff and Mucci directly, and he had not seen plaintiff's academic record in years. (Pl. R. 56.1 Stmt. ¶ 25; Berg Aff., Ex. 1 at 153.) He knew, however, that plaintiff had taught this statistics course previously for many years. (Pl. R. 56.1 Stmt. ¶ 151; Berg Aff., Ex. 1 at 71.) He testified that he compared Mucci and plaintiff in a general way because he recalled plaintiff's graduate work and compared it to Mucci's recent graduate courses and Mucci's industrial statistical experience; he felt Mucci was "a good person to try." (Poppick Reply Decl., Ex. 22 at 152.) Mignogna testified that he had never reviewed plaintiff's resume, however he did not question plaintiff's qualifications. (Pl. R. 56.1 Stmt. ¶ 25; Berg Aff., Ex. 2 at 88-89.) Simpson testified that he did not know anything about plaintiff's background in terms of his education or experience. ...

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