The opinion of the court was delivered by: P. Kevin Castel, District Judge
The defendants have filed an unopposed motion for summary judgment in this employment discrimination case brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., New York State and City human rights laws, and 42 U.S.C. § 1983. For the reasons explained below, the defendants' motion is granted and the plaintiff's claims are dismissed.
Plaintiff Thomas Collier is an African-American male who commenced employment with the New York City Department of Education ("DOE") on September 27, 1999. (56.1 ¶¶ 2, 4.) His first DOE job was as a school aide in P.S. 30. (56.1 ¶ 4.) While at P.S. 30, he also worked as a YMCA site coordinator for an after-school program unaffiliated with the DOE. (56.1 ¶ 5.) Plaintiff worked at P.S. 30 from September 27, 1999 until May 17, 2005, when he was informed that due to budgetary constraints, he would be "excessed" from his position as a school aide. (56.1 ¶¶ 4, 6.) As an excessed employee, the plaintiff continued to receive his full salary, and he was instructed to continue reporting to P.S. 30 until another position became available. (56.1 ¶¶ 7-8.) Being excessed was not equivalent to termination, and instead required plaintiff to be reassigned to a different school. (56.1 ¶ 7; Melendez-Hutt Dec. ¶ 4.)
At a P.S. 30 staff meeting of September 9, 2005, plaintiff was told that he would be reassigned to the hours of 3:30 p.m. to 5:30 p.m., a schedule that conflicted with his YMCA employment. (56.1 ¶ 9.) Plaintiff left the staff meeting, clocked out of work, and traveled to the DOE's Regional Operations Center to request employment at a school where his hours would not conflict with his YMCA work. (56.1 ¶¶ 10-11.) He did not report to work at P.S. 30 from September 12-15, 2005. (56.1 ¶ 12.) Plaintiff did not announce or explain his absence to P.S. 30 principal, defendant Karen MelendezHutt, who concluded that he had abandoned his job and terminated his employment.
(56.1 ¶¶ 13-14.) She informed plaintiff of his termination in a letter dated September 15, 2005. (Chiu Dec. Ex. E.)
By October 20, 2005, Melendez-Hutt had agreed to compensate the plaintiff with back pay, which was to be transmitted through an emergency paycheck.
(56.1 ¶¶ 16, 25; Chiu Dec. Ex. M.) She also agreed to reinstate the plaintiff. (56.1 ¶ 16.) On October 26, 2005, plaintiff grieved his termination and sought immediate reinstatement with back pay for September 9, 2005 through September 19, 2005, at which point, the grievance was determined to be moot. (56.1 ¶ 15; Chiu Dec. Ex. G.)*fn1 Plaintiff subsequently transferred to P.S. 172 and was given a schedule that did not conflict with his YMCA employment. (56.1 ¶ 17.) While at P.S. 30, Collier's overall performance had been evaluated as "outstanding" by Melendez-Hutt. (56.1 ¶ 25; Collier Dep. at 91; Chiu Dec. Ex. L.)
On January 24, 2007, plaintiff commenced this action by filing a complaint and jury demand. The Complaint alleges that he was terminated for discriminatory reasons and that he was subjected to retaliation, thereby violating Title VII. (Complaint at 3.) It also asserts violations of 42 U.S.C. § 1983, New York Executive Law section 296, and New York City Administrative Code 8-107. (Complaint at 5.) According to the Complaint, Collier was improperly terminated, and his work records improperly state that he was terminated rather than excessed. (Complaint at 4.) Plaintiff testified at deposition that Melendez-Hutt never made any derogatory comments about his race. (56.1 ¶ 19; Collier Dep. at 92.) However, he asserted that Melendez-Hutt discriminated against him when she terminated his employment and investigated a student's claim that he engaged in corporal punishment. (56.1 ¶¶ 18, 20; Collier Dep. at 72-75.) As of the date that this motion was filed, Collier remains employed by the DOE as a school aide. (56.1 ¶ 3.)
Defendants filed their summary judgment motion on May 16, 2008. After the plaintiff failed to submit opposition papers within the scheduled deadline, I issued an order directing that any opposition papers be filed before July 16, 2008. In a letter dated July 18, 2008, counsel to defendants wrote the Court noting that the plaintiff's deadline for submissions had passed. To date, the plaintiff has not filed opposition papers or submitted any other communications to the Court.
SUMMARY JUDGMENT STANDARD
Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Rule 56(c), Fed. R. Civ. P. It is the initial burden of a movant on a summary judgment motion to come forward with evidence on each material element of a claim or defense, demonstrating that he or she is entitled to relief. A fact is material if it "might affect the outcome of the suit under the governing law . . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The evidence on each material element must be sufficient to entitle the movant to relief in its favor as a matter of law. Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).
The Court must "view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party." Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (internal quotations and citations omitted); accord Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). In reviewing a motion for summary judgment, the court must scrutinize the record, and grant or deny summary judgment as the record warrants. Rule 56(c), Fed. R. Civ. P. In the absence of any disputed material fact, summary judgment is appropriate. Id.
The Second Circuit has held that "summary judgment should not be entered by default against a pro se plaintiff who has not been given any notice that failure to respond will be deemed a default," but that an easily comprehensible notice to the non-moving party from the movant will suffice as adequate notice. Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Here, the defendants included in their moving papers an ...