The opinion of the court was delivered by: Laura Taylor Swain, Usdj
Plaintiff Kyle Jiggetts ("Plaintiff"), a former school aide and substitute paraprofessional, filed this action pro se, alleging that Defendants Olga Diaz ("Diaz"),*fn1 The Board of Education of the City of New York ("BOE") and The United Federation of Teachers ("UFT") (collectively "Defendants") discriminated against him because of his race, national origin, and religion in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e - 2000e-17 ("Title VII"). Plaintiff also alleges that Defendants discriminated against him because of his disabilities in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112-12117 ("ADA"), and that Defendants discriminated against him in violation of Title VII,
42 U.S.C. § 2000e-3 in retaliation for filing a complaint with the New York City Commission on Human Rights. Before the Court are Plaintiff's motion for summary judgment as against Defendants BOE and UFT and Defendants BOE and UFT's cross-motions for summary judgment, pursuant to Federal Rule of Civil Procedure 56. The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331. For the following reasons, Plaintiff's motion is denied in its entirety and Defendants' motions are granted in their entirety.
The following material facts are undisputed unless otherwise indicated. Plaintiff describes himself as a Black American and Muslim who suffers from depression and anxiety. (Am. Compl. 3, 6.*fn2 ) He began working for the BOE in April 1999, as a probationary school aide, at P.S. 721X in District 75 in the Bronx. (BOE 56.1 Stmt. ¶ 3.) Plaintiff held this position for approximately seven weeks before he was notified via letter from Defendant Diaz that he was terminated as of June 14, 1999. (Am. Compl. 4; BOE 56.1 Stmt. ¶ 5.) Diaz's letter did not cite a reason for the termination. (Declaration of Rippi Gill ("Gill Decl."), Ex. 8.) Plaintiff appears to have worked at P.S. 181 for much of the period from the time of that termination until October of 1999. (Gill Decl., Ex. 15, Jiggetts Dep. p. 71.)
Plaintiff was rehired at P.S. 721X in October of 1999. (Id. at 72.) He was again terminated from P.S. 721X in early November 1999.*fn3 (Am. Compl. 4.) The BOE alleges that this termination was a result of letters received by the P.S. 721X Principal, Defendant Olga Diaz, from several employees concerning Plaintiff's conduct and performance. (BOE 56.1 Stmt. ¶¶ 10-11.) On or about September 13, 2000, Plaintiff filed a complaint with the New York City Commission on Human Rights ("NYCCHR") charging the BOE and Diaz with discrimination in violation of Section 8-107.1(a) of the Administrative Code of the City of New York. (UFT 56.1 Stmt. ¶ 42; Gill Decl., Ex. 2, NYCCHR Verified Compl.) Plaintiff alleged that he was perceived to be a drug abuser and that he was improperly terminated.*fn4 (Gill Decl., Ex. 2, NYCCHR Verified Compl.) After his termination in November 1999, there was a BOE hiring freeze. Plaintiff was out of work for 18 months and lost all of his benefits. (Am. Compl. 5.)
In June 2001, Plaintiff applied for a position as a substitute paraprofessional in District 75. (Id.; BOE 56.1 Stmt. ¶ 13.) Substitute paraprofessionals are hired to fill day-to-day absences on a rotating basis from the Substitute Paraprofessional Registry (the "Registry"). (Declaration of Linda Zimmerman ("Zimmerman Decl.") ¶ 3; BOE 56.1 Stmt. ¶ 16.) Substitute paraprofessionals are hired and assigned directly from the Registry rather than by the individual schools where they might be placed. (Zimmerman Decl., ¶ 3; BOE 56.1 Stmt. ¶ 17.) Plaintiff began work as a substitute paraprofessional on June 12, 2001, at Harry S. Truman High School ("Truman"). (Am. Compl. 5; BOE 56.1 Stmt. ¶ 21.) In September of 2001, Plaintiff was assigned to work at Fannie Lou Hamer Freedom High School ("Fannie Lou"). (Am. Compl. 5; BOE 56.1 Stmt. ¶ 23.) He worked one-on-one with a wheelchair bound student. (Am. Compl. 5.) Plaintiff worked at Fannie Lou on various dates throughout September and October 2001. (BOE 56.1 Stmt. ¶ 23.) Plaintiff was later contacted by the Registry and was told not to return to Fannie Lou and that he would be contacted concerning a new assignment. (Am. Compl. 7; BOE 56.1 Stmt. ¶ 25.) On October 24, 2001, Plaintiff was replaced by Malcolm Jones, a substitute paraprofessional whom Defendants contend had more seniority than Plaintiff. (BOE 56.1 Stmt. ¶ 27.)
At the end of October 2001, Plaintiff was contacted by the Registry, and he was placed in various schools, including 178, 181 and Truman, on a number of different days from late October 2001 through January 2002. (BOE 56.1 Stmt. ¶¶ 23, 29.) According to the BOE's evidentiary submissions, the Registry attempted to contact Plaintiff on various dates in March and April 2002, but was unable to reach Plaintiff. (BOE 56.1 Stmt. ¶ 30; Gill Decl., Ex. 10.) Plaintiff was removed from the Registry on May 8, 2002. (BOE 56.1 Stmt. ¶ 32.) Defendants contend that this removal was based solely on Plaintiff's failure to inform the Registry of his change of telephone number. (BOE 56.1 Stmt. ¶ 32; see also Gill Decl., Ex. 10 ("Could not contact" written in all caps next to the May 8, 2002, removal from Registry).) Plaintiff contended in his deposition that the Registry had his phone numbers, but admitted that the Registry told him that they had tried reaching him. (Gill Decl., Ex. 15, Jiggetts Dep. p. 152.) After contacting the Registry, Plaintiff was reinstated on June 25, 2002. (BOE 56.1 Stmt. ¶ 33.) Plaintiff received several placements in different schools beginning in October 2002 through December 2, 2002. (BOE 56.1 Stmt. ¶ 36.) Plaintiff's placement on December 2, 2002, was at Truman. (BOE 56.1 Stmt. ¶ 37.) Plaintiff was again removed from the Registry on December 2, 2002, this time with the notation "DNS," which, according to Defendants, means "Do Not Send." (BOE 56.1 Stmt. ¶ 56.)
According to Defendants, Plaintiff's removal from the Registry was the result of Plaintiff's behavior at Truman on December 2, 2002. (BOE 56.1 Stmt. ¶ 56.) Bonnie Brown, the Superintendent's representative for District 75, wrote to Linda Zimmerman, the Director of the Paraprofessional Registry, to request that Plaintiff be removed from the District 75 registry based upon information that Truman staff and administration had provided. (BOE 56.1 Stmt. ¶ 55; see also Zimmerman Decl. ¶ 15 (stating that Mr. Jiggetts was removed from the Registry for the second time "based on information received from the staff and administration from Truman").) Truman principal Rima Ritholtz (see BOE 56.1 Stmt. ¶ 48) wrote to the District 75 paraprofessional payroll, explaining that she had sent Plaintiff home on December 2, 2002, because of his "odd" and "disoriented" behavior, and because his eyes appeared bloodshot and there was an odor of alcohol about him. (Gill Decl., Ex. 12.) Other letters from Truman staff indicated that Plaintiff's eyes looked bloodshot and that he was found looking through lockers which contained student belongings. (Gill Decl., Ex. 13.) Plaintiff admitted in his deposition that he remembers going to work not feeling well, that he felt odd and disoriented and that his "mind was somewhere else." (Gill Decl., Ex. 15, Jiggetts Dep. pp. 170-72.) Plaintiff also admitted that he went to several classes looking for his coat. (Gill Decl., Ex. 15, Jiggetts Dep. pp. 176-77.)
Upon being removed and replaced at Fannie Lou in October 2001, Plaintiff went to the UFT to file a grievance against the BOE. (Am. Compl. 5.) Plaintiff met with UFT Representative Rose Dorsey, who told him that he did not have a grievance. (Id.) Plaintiff claims that Rose Dorsey refused to show him the UFT contract. (Id.) On or about December 3, 2001, Plaintiff filed an Improper Practice Charge with a labor board,*fn5 against BOE and UFT. (Am. Compl. 5, 6; UFT 56.1 Stmt. ¶ 39.) Plaintiff later obtained a copy of the UFT contract and entered into a settlement agreement with the UFT regarding the Improper Practice Charge. (Am. Compl. at 5-6; UFT 56.1 Stmt. ¶¶ 40-41.)
In the Amended Complaint, Plaintiff states that the UFT contract gives him the right to grieve and that the contract does not state that someone outside the title of paraprofessional could fill a paraprofessional position. (Am. Compl. 6.) Plaintiff asserts that "this" proves that he was being discriminated against, stating that he believes the discrimination is based upon his religious beliefs and retaliation for filing a complaint with the NYCCHR. (Id.) Plaintiff claims that members of the staff of Fannie Lou, including the principal Donald Friedman and a teacher by the name of Meghan, were aware of his religious belief. (Id.)
On February 8, 2002, Plaintiff filed a charge of religious discrimination with the New York State Division of Human Rights ("NYSDHR") against the BOE (the "February 8, 2002, charge"). (BOE 56.1 Stmt. ¶ 63; Gill Decl., Ex. 3.) Notice of this charge was sent to the EEOC for dual filing purposes. The NYSDHR found that the Plaintiff had "not substantiated the allegation that he was disparately treated by [BOE] because he is Muslim." (Gill Decl., Ex. 3.) The EEOC adopted the findings of NYSDHR and issued the Plaintiff a Notice of the Right to Sue on December 17, 2002. (Gill Decl., Ex. 4.) On March 11, 2002, Plaintiff filed another charge (which was dated February 14, 2002) with the EEOC (the "February 14, 2002, charge"). (Gill Decl., Ex. 5.) This charge asserted claims against both the BOE and the UFT, for allegedly retaliating against the Plaintiff for filing the September 13, 2000, charge with the NYCCHR. (Gill Decl., Exs. 2 & 5; Declaration of Antonio M. Cavallaro ("Cavallaro Decl."), Ex. 2.) Plaintiff then commenced the present action, alleging retaliation and discrimination based on race, national origin, religion and disability.
Summary Judgment Standard
Summary judgment may be granted if the submissions of the parties, taken together, "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." Fed. R. Civ. P. 56(c).
[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986) (emphasis in original). A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Mount Vernon Fire Ins. Co. v. Belize NY, Inc., 277 F.3d 232, 236 (2d Cir. 2002) (quoting Anderson, 477 U.S. at 248). When determining whether a genuine issue of material fact exists, the Court views all evidence in the light most favorable to the nonmoving party. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 465-66 (2d Cir. 2001), cert. denied, 534 U.S. 993. "When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its ...