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Noble v. Career Education Corp.

August 4, 2009


The opinion of the court was delivered by: Kenneth M. Karas, District Judge


Emilio Noble ("Plaintiff") brings this action alleging discriminatory termination by Career Education Corporation ("Defendant" or "CEC"), the parent company of Plaintiff's former employer, the Sanford Brown Institute ("SBI"). Plaintiff claims that Defendant fired him because of his race and national origin, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; the New York Human Rights Law ("NYHRL"), N.Y. Exec. Law § 290 et seq.; and 42 U.S.C. § 1981 ("Section 1981").*fn1 Defendant has moved for summary judgment. For the reasons stated herein, Defendant's motion is granted.

I. Background

A. Plaintiff's Employment and Termination

SBI is a post-secondary educational institution that offers "programs, degrees and certificates in a variety of healthcare fields." (Def.'s Rule 56.1 Statement of Undisputed Material Facts ("Def.'s 56.1") ¶¶ 1, 3.) Plaintiff, a Hispanic male of Dominican descent (Compl. ¶ 2), was hired by SBI on or about November 10, 2003, as an Admissions Representative (Def.'s 56.1 ¶ 14). On or about May 3, 2004, upon the recommendation of Lisa Masse, then a CEC Vice President, SBI promoted Plaintiff to the position of Director of Admissions, a "'senior management position.'" (Id. ¶¶ 15, 35; Affirmation of Stephen Bergstein in Opp'n to Def.'s Mot. for Summ. J. ("Bergstein Aff.") Ex. 2 (Dep. of Lisa Masse ("Masse Dep.") 8).) In that position, as the "most senior person in the... Admissions Department," Plaintiff was responsible for, inter alia, monitoring the performance of Admissions Representatives, developing the Admissions Department's budget, ensuring compliance with Defendant's policies and state and federal laws, and "overseeing the collection of student application fees." (Def.'s 56.1 ¶¶ 7-8.) According to Masse, she believed Noble to be "a true professional" and "a real gentleman," and she was "very happy with his performance as [Director of Admissions]." (Masse Dep. 8.) Larry Stieglitz, who was the President of SBI during part of Plaintiff's tenure as Director of Admissions, said that he "thought [Plaintiff] was a decent Admissions director."

(Bergstein Aff. Ex. 4 (Dep. of Larry Stieglitz ("Stieglitz Dep.") 10).)

On October 29, 2004, Masse received an email from Howard Henson, a former SBI employee, "indicating that Plaintiff had been convicted of grand larceny in connection with his prior employment." (Def.'s 56.1 ¶ 16; Bergstein Aff. Ex. 1 (Dep. of Emilio Noble ("Pl. Dep.") 55).) Masse forwarded the email to two other CEC officials - John Regan, CEC Regional Director of Human Resources, and Ron Kimberling, another CEC Vice President - and asked for their advice on how to proceed. (Def.'s 56.1 ¶ 17; Decl. of Amber Kagan in Supp. of Mot. for Summ. J. ("Kagan Decl.") Ex. 10, at first unnumbered page.) According to Stieglitz, he also learned of the allegation, possibly from Masse, and told Masse to "[k]eep [him] posted." (Stieglitz Dep. 12-13.) Plaintiff also received a copy of Henson's email on the same day that it was sent to Masse. (Pl. Dep. 56-57.) "Almost immediately" after Masse received Henson's email, Plaintiff approached Stieglitz and admitted that he had been convicted of grand larceny in or around July 2004.*fn2 (Def.'s 56.1 ¶ 18; Pl. Dep. 56 (stating that Plaintiff "confronted" Stieglitz "after this e-mail was sent, I think it was the day after").)

Following Masse's receipt of Henson's email, a decision was made to terminate Plaintiff. (Def.'s 56.1 ¶ 21.) According to Masse and Stieglitz, they were not involved in the decision, which they believed was made by Human Resources or "corporate" staff at Defendant's home office in Illinois. (Masse Dep. 11; Stieglitz Dep. 17.) On November 1, 2004, Kimberling forwarded Masse's email to Regan, along with the message, "We need to talk about this today." (Kagan Decl. Ex. 10, at fifth unnumbered page.) On November 12, 2004, Regan sent Masse an email with a "brief script" for notifying Plaintiff of his termination. (Id. at sixth unnumbered page; id. at seventh unnumbered page ("Lisa: 'You are aware of our management's review of the information we became recently aware of with regard to your guilty plea in the felony conviction. We have carefully reviewed this information [and] have made the business decision to terminate your employment effective today.'").)

It was Masse's "understanding that [Plaintiff] was fired based on [his grand larceny] conviction," pursuant to the CEC "policy with respect to employees with criminal convictions... that the home office HR team used in conjunction with background clearances." (Masse Dep. 12.) According to Defendant's written hiring policies, among the "'firm' reasons not to hire a candidate" for any position is "[a]ny felony conviction in the last seven years." (Kagan Decl. Ex. 11.) According to Winn Sanderson, who replaced Stieglitz as President of SBI in White Plains in February 2005, "CEC policy is that [employees or applicants] are terminated or not hired" if they have a felony "criminal conviction." (Kagan Decl. Ex. 2 (Dep. of Winn Sanderson ("Def.'s Sanderson Dep.") 11; Bergstein Aff. Ex. 3 (Dep. of Winn Sanderson ("Pl.'s Sanderson Dep.") 5, 11).)*fn3 According to Regan, Defendant has "a policy... concerning the employment of individuals with felony convictions." (Decl. of John Regan in Supp. of Def.'s Mot. for Summ. J. ("Regan Decl.") ¶ 9.)

According to Regan, the decision to terminate Plaintiff's employment was "based on" Defendant's "conviction policy" as well as its "concern[] that Plaintiff's conviction, if discovered by [the Accrediting Bureau of Health Education Schools ('ABHES')], could have created issues with the [ABHES] certification visit" scheduled at that time. (Id. ¶¶ 6, 8, 10.) SBI must comply with ABHES requirements to maintain its accredited status and remain eligible for certain federal funding. (Def.'s 56.1 ¶ 11.) ABHES conducts at least one certification visit every six years for institutions such as SBI. (Id. ¶ 10.) During a certification visit to a school, ABHES evaluates, inter alia, "the qualifications of the school's management team." (Id.) In "the fall of 2004," SBI was "on probation and at risk of losing its accredited status," and was scheduled for an ABHES certification visit. (Id. ¶ 12.) The SBI Admissions Department was of "primary concern" to ABHES, as the department had been "perceived as experiencing ethical problems." (Id.) SBI's probationary status made it "particularly important" that the "ABHES certification visit ran smoothly" and without any "significant issues." (Id. ¶ 13.)

Plaintiff was informed of his termination on or about November 30, 2004. (Id. ¶ 22.) At this time, Plaintiff did not believe that his termination was discriminatory. (Id.) Carlos Arias, a Hispanic employee of CEC, was appointed to replace Plaintiff as SBI Director of Admissions. (Id. ¶ 23; Pl.'s Reply to Def.'s Local Rule 56.1 Statement ("Pl.'s 56.1") ¶ 23.) At least one other Hispanic employee, Michael Mangual, held a senior management position at SBI during Plaintiff's employment and remained employed there at the time of Plaintiff's termination.*fn4

(Def.'s 56.1 ¶ 36; Pl.'s 56.1 ¶ 36.)

B. Employment and Termination of Marlene Shemtob-Battocchio

Marlene Shemtob-Battocchio ("Battocchio"), a white former SBI employee, worked as an Instructor at SBI.*fn5 (Def.'s 56.1 ¶¶ 24-25.) Her position as an Instructor included "administrative responsibilities for [student] externship placements." (Id. ¶ 25; Pl.'s 56.1 ¶ 25.) According to Sanderson, Battocchio was also responsible for "teaching the program curriculum [and] providing academic advisement and career-related counseling to students," but did not "handle cash." (Decl. of Winn Sanderson in Supp. of Mot. for Summ. J. ("Sanderson Decl.") ¶¶ 18-19.)

On or about May 25, 2005, various SBI and CEC employees received an email indicating that Battocchio had been convicted of grand larceny on or around September 11, 1996. (Def.'s 56.1 ¶ 26.) The email was apparently carbon-copied to "" (Def.'s Sanderson Dep. Ex. 1.) The first line of the body of the email was "Article Reprint," the second line began "Date=09/11/1996," and the third line stated "Secretary pleads guilty to stealing from doctors." (Id.) According to the email, "37-year-old Marlene Shemtob-Battacchio of Yonkers" pled guilty "[y]esterday" to "second-degree grand larceny in [a] scheme" to steal $464,000 from two named doctors who had been her employers. (Id.) By the time the email was sent, SBI had completed the ABHES certification visit that had been scheduled as of fall 2004. (Def.'s 56.1 ¶ 26.) Subsequent to this email being sent, Battocchio approached Sanderson on "several occasions" and "denied that she had been convicted of grand larceny." (Id. ¶ 27.) According to Sanderson, Battocchio "emphatically and repeatedly denied having been convicted of any crime." (Sanderson Decl. ¶ 21.) Sanderson testified that he discussed the email with Regan, who did not ask him to take any action to determine the truth of the email's contents. (Pl.'s Sanderson Dep. 18-19.)

On or about July 6, 2005, Battocchio provided Sanderson with a letter from her attorney, stating, "'I am not aware of any criminal charges currently pending against Ms. Battocchio.'" (Def.'s 56.1 ¶ 28.) According to Sanderson, he faxed the letter to Regan. (Pl.'s Sanderson Dep. 19.) Noting the phrase "'currently pending,'" Sanderson "decided to run a search of the public records to verify that Battocchio did not have a criminal conviction." (Def.'s 56.1 ¶ 28 (emphasis added).) On or about August 17, 2005, Sanderson "ran a criminal background search" on Battocchio, identifying her as "Shemtob-Battacchio, Marlene," born December 10, 1955. (Id. ¶ 29; Def.'s Sanderson Dep. Ex. 4.) The search cost of $52 was billed to SBI. (Def.'s Sanderson Dep. Ex. 5.) The search produced a "Job Status Report" from the New York State Office of Court Administration ("OCA") stating "No Results Found" for "Shemtob-Battacchio, Marlene." (Def.'s Sanderson Dep. Ex. 3; Def.'s 56.1 ¶ 29.) The report also stated: "Search results are based on finding an exact match of the name and date of birth submitted." (Def.'s Sanderson Dep. Ex. 3.)

According to Sanderson, following his receipt of this report, he "did not see any cause to take any action." (Pl.'s Sanderson Dep. 22.) He did not contact the Westchester District Attorney's office (which had been mentioned in the email as the office that had prosecuted "Marlene Shemtob-Battacchio"), or the doctors named in the email as victims, or the doctors' lawyer, or Battocchio's lawyer (who had written the July 6, 2005 letter), or the White Plains courthouse, or any of the other individuals who had received the email. (Id. 22-23, 25-26.)

The Parties agree that "[i]f Sanderson had been aware that Battocchio [had been] convicted of a felony, he would have terminated her ...

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