The opinion of the court was delivered by: Laura Taylor Swain, Usdj
Pro se Plaintiff Joseph Martinez ("Plaintiff") brings this action against Defendant New York City Department of Education ("NYC DOE" or "Defendant"), alleging that Defendant engaged in discriminatory employment practices based on Plaintiff's sex and retaliated against him in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296. The Court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1331 and 1343, and supplemental jurisdiction of Plaintiff's state law claim pursuant to 28 U.S.C. § 1367.
Defendant's motion for summary judgment dismissing Plaintiff's complaint in its entirety is now before the Court. Defendant's motion papers were accompanied by a Statement pursuant to S.D.N.Y. Local Civil Rule 56.1, as well as a Notice to Pro Se Litigant Opposing Motion for Summary Judgment as required by Local Civil Rule 56.2, and a number of evidentiary submissions. Plaintiff submitted a series of letters and evidentiary proffers in response, which the Court has construed as his opposition to Defendant's motion. (Docket Entries Nos. 45, 48.) The Court notes that, although Plaintiff has not submitted the required response to Defendant's Rule 56.1 Statement and Defendant's factual proffers could for that reason be taken as admitted under Local Civil Rule 56.1(c), the Court has examined carefully Plaintiff's letters and evidentiary proffers in determining whether there are genuine issues of material fact. The Court has also considered carefully Defendant's memoranda and accompanying affidavits and exhibits. For the following reasons, Defendant's motion is granted.
Unless otherwise stated, the following material facts are undisputed to the extent that both parties submitted the same underlying evidence, or to the extent that they are premised on proffers by one party that are unrefuted by any proffer from the other.
Plaintiff is a male who was employed as a guidance counselor for most of the relevant period. (Declaration of Amy Grossberg, dated Jan. 29, 2007 ("Grossberg Decl.") Ex. H.) Dr. Ilisa Sulner ("Sulner"), the principal of P.S. 721X ("721X"), was Plaintiff's supervisor during his employment there.
April 2003 - McTaggart's claim of sexual harassment; OEO investigation
On April 15, 2003, Kim McTaggart ("McTaggart"), another guidance counselor at 721X, sent a letter to Sulner accusing Plaintiff of sexual harassment. (Grossberg Decl. Ex. K.) Sulner thereafter ordered Plaintiff to "cease and desist" from his efforts to establish a personal relationship with McTaggart and informed him that representatives from the Board of Education's Office of Equal Opportunity ("OEO") would discuss the charges of sexual harassment with Plaintiff on May 7. (Id. Exs. L-N; Pl.'s Br. Ex. 2.)
At his May 7 interview with OEO, Plaintiff disputed most of McTaggart's factual assertions. (Grossberg Decl. Ex. O; see also Pl.'s Br. Exs. 6, 8.) McTaggart repeated her allegations that she was being sexually harassed, and some witnesses, including another guidance counselor named Wanda Huertas ("Huertas"), corroborated McTaggart's factual claims. Sulner added that Plaintiff was contributing to "workplace disharmony," that he had not been keeping the incident quiet, and asked if Plaintiff could be transferred. (Grossberg Decl. Ex. O; Pl.'s Br. Ex. 5.)*fn1
On May 22, the OEO issued a report finding that, while Plaintiff's actions did not constitute unlawful sexual harassment, they were "boorish, pestering, and insensitive," and that his conduct contributed to "workplace disharmony." (Grossberg Decl. Ex. O.) As a result, the OEO directed Plaintiff to attend sexual harassment training, to cease and desist conduct contributing to workplace disharmony, and to have no further personal contact with McTaggart. The OEO further recommended that Sulner issue a "cease and desist letter" to Plaintiff to be placed in his file and that the superintendent transfer Plaintiff as soon as reasonably possible "so as to minimize contact between the parties [Plaintiff and McTaggart]." (Id. Exs. O, R; Pl.'s Br. Ex. 1.) A few weeks later, Superintendent Susan Erber ("Erber") instructed Plaintiff to "cease and desist behavior which contributes to workplace disharmony" and directed Plaintiff to attend sexual harassment training. (Grossberg Decl. Ex. U.)
Plaintiff asserted, and continues to assert, that the entire sexual harassment charge and resulting sanctions were purposefully orchestrated by Sulner and others because Sulner did not like Plaintiff. (Grossberg Decl. Ex. JJ at 83:13-24.) In a letter to OEO dated June 2, 2003, Plaintiff wrote:
The whole matter seems to have a tone of malicious intent. The situation seemed to be a set-up by the administrator and certain staff members of the school. It seems that certain teachers complaining of Ms. McTagg[a]rt's work and the meeting by Ms. Huertas precipitated sexual harassment charges. The union chapter chairman showed strong conflict of interest against me. I believe these factors show malicious intent and resulted in defamation of character. (Id. Ex. S.) Plaintiff repeated these allegations in sum and substance to co-workers, who in turn reported these conversations to Sulner. (Id. Exs. T, Z.) On June 19, Plaintiff wrote to the OEO that "[i]f anything I felt there was reverse harassment" with respect to McTaggart's allegations.*fn2 (Id. Exs. V-W; Pl.'s Br. Ex.) On July 3, Sulner noted to Plaintiff that she had become aware that Plaintiff was continuing to "engage in harassing behavior" associated with McTaggart, noted that Plaintiff's alleged remarks about McTaggart following the May 22 OEO report could be characterized as retaliation against McTaggart, ordered that Plaintiff "cease and desist" from any future conversations regarding McTaggart, and warned that failure to comply with her order might result in Plaintiff's removal from his position. (Grossberg Decl. Ex. CC.) Plaintiff told OEO about Sulner's July 3 letter and reiterated that he had "always felt that Ms. McTaggart filed sexual harassment [charges] because she felt pressure from Dr. Sulner. Once again I feel that I am being harassed by Dr. Sulner." (Id. Ex. DD; Pl.'s Br. Ex.)
On or about August 23, Plaintiff filed an employment discrimination charge with the EEOC. (Grossberg Decl. Ex. JJ at 41.) In addition, Plaintiff wrote to the EEOC*fn3 that, with regard to OEO decisions that find no unlawful sexual harassment but nonetheless impose sanctions, "[t]he overwhelming plaintiffs in a male-female scenario are males with no hope of appeal," appearing to suggest that it is predominately males who are sanctioned in some way by the NYC DOE as a result of alleged sexual harassment, even when no sexual harassment violation is found. (Id. Ex. MMM.) Chancellor's regulation A-830, which governs sexual harassment allegation investigations, is silent as to whether OEO had the authority to impose sanctions absent a finding that sexual harassment occurred.*fn4 (Id. Ex. N.) When asked at his deposition whether the alleged lack of an effective appeal system for OEO sanctions (where no finding of sexual harassment was made) was designed in such a way as to have an impact on one sex only, Plaintiff responded:
They should change article A830 and put a clause in there for an appeal system for a person that is accused. And I don't care if it is a man, a woman, two bisexual woman or anything, one woman to a straight woman or a gay woman to a straight woman, they have to have an appeal system for the person that is accused . . . . (Id. Ex. JJ at 127:18-24.)
May 2003 - transfer to 721M
On May 20, 2003, Superintendent Erber's office sent Plaintiff a letter indicating that Plaintiff would be tentatively assigned to work at P 721M ("721M") for the summer of 2003. (Pl.'s Supp. Ex.; Grossberg Decl. Ex. Q.) On June 12, Erber sent Plaintiff a confirmation letter expressing Erber's understanding that Plaintiff had worked at 721M for the summer session in the previous year, and that Plaintiff was accepting an assignment to 721M again for the 2003 summer session. (Id. Ex. U.) However, on July 1, Plaintiff filed a "Step II Grievance"*fn5 with the OEO and asserted that he was not aware of the 2003 summer assignment to 721M until that day. Plaintiff later testified, and in the grievance claimed, that the transfer was not permissible because he had seniority rights over Huertas, McTaggart, and Kennia Laucer ("Laucer") (another guidance counselor), none of whom was transferred to 721M that summer. (Pl.'s Br. Ex., Oct. 26, 2006 Pl.'s Dep. at 166:18-19; Grossberg Decl. Ex. BB.) The Step II Grievance did not allege discrimination on the basis of sex. Sulner responded that Plaintiff's assignment was based on the OEO's transfer recommendation and Sulner's assertion that Plaintiff's harassment conduct was ongoing. (Id. Ex. EE.) On or about July 8, the OEO concluded that Plaintiff failed to demonstrate that the 721M transfer was "arbitrary or capricious." (Id.)No copy of the union contract or any other written agreement addressing seniority is included in the record.
Plaintiff did not receive any cut in pay or benefits as a result of the transfer to 721M and 721M was close to Plaintiff's home, but he suffered emotionally because several 721M employees asked Plaintiff why he was transferred there. (Grossberg Decl. Ex. EE; Pl.'s Br. Ex., Oct. 26, 2006 Pl.'s Dep. at 169:1-14.) Plaintiff additionally testified that rumors with negative connotations about his transfer spread amongst guidance counselors from different districts, though he did not specify the basis of his knowledge of the rumors. (Id. at 172:1-15.)
September 2003 - Transfer Out of Counselors' Suite
On or about September 2, 2003, Plaintiff returned to 721X and was asked to meet with Sulner in her office. Sulner said, with the door open and speaking in a voice loud enough for others to hear, that Plaintiff's office was to be moved from the suite where guidance counselors and service providers worked because the suite had "a lot of female staff" and/or that "there were too many females there." (Pl.'s Br. Ex., Oct. 26, 2006 Pl.'s Dep. at 178:11-12.) She added that Plaintiff needed to be careful with what he said, and ordered ...