The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.
MEMORANDUM OPINION AND ORDER
Tuckahoe Union Free School District -- at the recommendation of Superintendent of Schools Michael Yazurlo -- hired Carl G. Smith as its Director of Finance in August 2001, and four months later -- again at Yazurlo's recommendation -- fired him. (Def. R. 56.1 Statement ¶¶ 38, 41; Yazurlo Aff. ¶ 3) Smith claims that Yazurlo's recommendation that he be fired stemmed from Yazurlo's racial animus and desire to retaliate against Smith for complaining about Yazurlo's sexual harassment of another African-American School District employee. Defendants contend, however, that Smith was fired for poor job performance.
Defendants have moved for summary judgment as to all of Plaintiff's claims. Because there are disputed issues of material fact regarding the reasons for Smith's termination and the events that led up to it, Defendants' motion as to Smith's Title VII wrongful discharge and retaliation claims will be denied. Defendants are entitled to summary judgment concerning Smith's parallel state law claims, however, because they are time-barred.
A. The School District Hires Smith
During the summer of 2001, Smith submitted a job application to the School District for the position of Director of Finance. (Def. Ex. O) After an initial screening, Smith was interviewed by Superintendent Yazurlo and Assistant Superintendent for Personnel and Curriculum Barbarann Tantillo. (Def. R. 56.1 ¶¶ 19, 47, 54*fn1 ; Yazurlo Aff. ¶¶ 1, 5; Tantillo Aff. ¶ 1) Yazurlo and Tantillo selected Smith and a white applicant for a final interview round with the Board of Education. (Id. ¶¶ 60, 61)
After these interviews, Yazurlo and Tantillo met with the Board to discuss the two finalists. The Board asked Yazurlo -- who had daily contact with the Finance Director -- for his recommendation, and Yazurlo recommended that Smith be hired. (Id. ¶¶ 62, 65-66) The Board accepted Yazurlo's recommendation and hired Smith as a probationary Director of Finance.*fn2 (Id. ¶¶ 67, 68) Smith began work for the School District in August 2001. (Yazurlo Aff. ¶ 3; Def. Ex. U at 35:12)
B. Evidence Concerning Smith's Job Performance
Defendants claim that, from the outset, Smith was incapable of performing the duties and responsibilities of the finance director. For example, Defendants have offered evidence that Smith failed to prepare a fixed asset inventory, a simplified budget report, and an accurate budget calendar, and was unable to answer simple questions about the School District's budget (Def. R. 56.1 Stat. ¶¶ 69-70, 72, 83); prepared an inaccurate comparison of the cost of health insurance coverage offered by competing carriers (id. ¶ 71); represented -- incorrectly -- that no state aid was available for a School District construction project (id. ¶ 73); failed to obtain required training for a School District clerk (id. ¶ 75); contacted the School District's legal counsel without Yazurlo's approval and in violation of School District policy (id. ¶ 76); pretended to be sick to avoid giving a budget presentation (id. ¶ 77); had serious disputes with several co-workers and was the subject of a sexual harassment complaint (id. ¶ 78); fired a secretary without authorization (id. ¶ 79); reduced a co-worker, Joanna Scrivo, to tears (id. ¶ 80); improperly intercepted a telephone call from Board President Reich to Yazurlo and complained to Reich about Yazurlo, thereby violating the chain of command outlined in School District policy (id. ¶¶ 81-82); and caused Assistant Superintendent Tantillo to repeatedly express concerns to Yazurlo that he was incompetent. (Id. ¶ 84)
Smith, however, has offered admissible evidence that puts into dispute most of the allegations listed above. With respect to Defendants' complaints about his failure to complete various reports, Smith offered admissible evidence that other employees were responsible for the report in question (Pltf. R. 56.1 Stat. ¶ 69, Ex. 13) (fixed asset report), that he produced the required report (Pltf. R. 56.1 Stat. ¶¶ 70, 72, Ex. 1 at 145:20-146:25, Ex. 14) (budget report and budget calendar), or that other employees in the School District refused to give him information that was essential to the preparation of the report. (Pltf. R. 56.1 Stat. ¶ 71, Ex. 1 at 298:5-300:12) (health insurance comparison) Smith testified that his report regarding state aid was not erroneous and relied on information obtained from the State Education Department (Pltf. R. 56.1 Stat. ¶ 73, Ex. 1 at 326:17-327:14), and offered evidence that the School District clerk did not receive any formal training because "BOCES does not offer any formal training for this job title." (Pltf. R. 56.1 Stat. ¶ 75, Ex. 16)
With respect to contacting the School District's legal counsel, Smith testified that Yazurlo had previously told him that he did not have "a problem with [Smith] going to [the] School District's attorneys. . . ." (Pltf. R. 56.1 Stat ¶ 76, Ex. 3 at 192:14-193:18) As to feigning illness to avoid giving a budget presentation, Smith testified that he was in fact sick that day. (Pltf. R. 56.1 Stat. ¶ 77, Ex. 1 at 342:8-24, Ex. 17) Smith denies firing the secretary (Pltf. R. 56.1 Stat. ¶ 79, Ex. 3 at 176:8-23, Ex. 18) and likewise denies reducing Johanna Scrivo to tears, claiming instead that Scrivo become "irate because [he] asked her to complete an assignment and she refused to." (Pltf. R. 56.1 Stat. ¶ 80, Ex. 1 at 92: 4-11)
Finally, Smith concedes that a sexual harassment complaint was filed against him, but testified that Yazurlo said he believed the complaint was "bullshit." (Pltf. R. 56.1 Stat. Ex. 1 at 230:2-11)
After parsing through the record, the undisputed material facts regarding Smith's job performance are: (1) Smith had strained relationships with Yazurlo, Tantillo, and the Assistant Superintendent for Special Education, Abbey Deschappelles.(Def. R. 56.1 Stat. ¶ 78; Pltf. Ex. 1 at 252:13-20); (2) a sexual harassment complaint was made against Smith (Def. R. 56.1 Stat. ¶ 78); (3) Smith violated School District protocol by directing complaints about his employment to Board President Reich instead of his supervisor, Superintendent Yazurlo (id. ¶¶ 80-81); (4) Smith was unable to answer certain questions that Tantillo asked him about a "Zero-Based Budget" (id. ¶ 84); and (5) Tantillo expressed concerns to Yazurlo that Smith "was not competent or capable." (Id.)
C. Evidence of Yazurlo's Racial Animus and Retaliatory Motive
Smith has also offered evidence of two incidents demonstrating Yazurlo's alleged racial animus and retaliatory motive. In November 2001, near the Thanksgiving holiday, Smith was standing outside the high school talking to Yazurlo. (Pltf. R. 56.1 Counterstat. ¶ 28) Justine Redding, an African-American teacher in the School District, approached. (Pltf. R. 56.1 Counterstat. ¶ 29) According to Smith, Yazurlo turned to her, grabbed her by the arm, told her to give him "some of the brown sugar," and forcibly kissed her on the mouth. (Pltf. R. 56.1 Counterstat. ¶ 29) Shocked by Yazurlo's conduct, Smith alleges that he told the Superintendent that his conduct was "inappropriate" and that it was "a sexual harassment act." (Pltf. Ex. 1 at 225:4-8, 23-25, Ex. 3 at 85:8) Smith claims that Yazurlo responded, "Who are you to question what I do?" (Pltf. R. 56.1 Counterstat. ¶ 36) Redding -- who filed an EEOC charge concerning this incident -- corroborates Smith's account.*fn3 (Pltf. Ex. 4 at 38:4-6, 43:19-23, 55:14)
Smith further alleges that on December 6, 2001 -- the day before Yazurlo told Smith that he was going to recommend to the Board that Smith be fired -- Smith saw Yazurlo talking to middle-school principal Anthony DiCarlo as Smith was exiting the high school building. (Pltf. Ex. 1 at 170:7-8, 21-22) As Smith approached, Yazurlo allegedly "looked directly at [him]" and called him a "fucking or freaking nigger." (Id. at 171:4-6, 191:16-18) Smith alleges that Yazurlo then added, "Carl, oh shit!"*fn4 (Id. at 171:5-6)
D. Smith's Termination and Lawsuit
On December 3, 2001, Yazurlo told Smith that he had grave concerns about his job performance. (Pltf. R. 56.1 Stat., Ex. 8 at 181:22-23, 182:6-8) That same day, Smith sent Yazurlo a memo in which he asked for permission to speak with the Board about issues Smith had with Yazurlo. (Pltf. R. 56.1 Stat., Ex. 6) Yazurlo denied this request on December 5, 2001. (Pltf. R. 56.1 Stat., Ex. 7)
On December 7, 2001, Yazurlo and Assistant Superintendent Tantillo informed Smith that Yazurlo would be recommending to the Board that Smith be fired. (Yazurlo Aff. ¶ 21; Pltf. Ex. 12) The Board terminated Smith's employment on January 7, 2002, effective February 7, 2002. (Yazurlo Aff. ¶ 3)
On January 8, 2002, Smith sent Board President Reich a letter alleging that the reasons used to justify his termination were fabricated. (Pltf. Ex. P) In his letter, (Id.) Buonocore testified that he witnessed Yazurlo's remark, that Smith was not present, that Yazurlo and Redding "peck[ed]" each other on the cheek, and that Redding wished Yazurlo a "good Thanksgiving" as she walked away. (Buonocore Aff. ¶ 15)
Smith claimed that Yazurlo had referred to him as a "nigger" shortly before he was fired. Smith also revealed that he had been tape-recording conversations with his co-workers since at least November 2001. (Id.)
After Smith's termination, Yazurlo learned that Smith was asked to resign from his prior position. (Def. R. 56.1 Stat. ¶ 2) In his application for the Director of Finance position, Smith had stated ...