The opinion of the court was delivered by: Block, Senior District Judge
Plaintiffs, Anthony Isenalumhe ("Isenalumhe") and Jean Gumbs ("Gumbs"), are tenured nursing professors at Medgar Evers College ("MEC"), part of the City University of New York ("CUNY"). Proceeding under 42 U.S.C. § 1983, they allege that defendant Georgia McDuffie ("McDuffie") retaliated against them for exercising their First Amendment rights, and that defendant Edison O. Jackson ("Jackson") condoned McDuffie's actions. They seek compensatory and punitive damages, as well as an injunction prohibiting further retaliation.*fn1
Pursuant to Federal Rule of Civil Procedure 56, defendants move for summary judgment. As explained below, the Court concludes that plaintiffs' suit is nothing more than an attempt -- regrettably all too common -- to dress an internecine feud in First Amendment garb; whatever the merits of the dispute, it is not one of constitutional magnitude. Accordingly, defendants' motion is granted.
Isenalumhe has been a professor at MEC since 1993, with tenure since 1999. Gumbs was hired as a professor in 1998 and received tenure in 2000. Jackson has been the president of MEC since 1989.
The genesis of this lawsuit was the hiring of McDuffie as an associate professor and chairperson of the Nursing Department in 2001. She was elevated to the rank of full professor later in 2001 and reappointed with tenure in 2004. Isenalumhe and Gumbs opposed McDuffie's appointment and took issue with her administration shortly after her arrival. Their discontent manifested itself in a series of statements, emails, memos and letters opposing McDuffie's actions.
In enumerating the list of complaints and their allegedly retaliatory consequences, plaintiffs' complaint takes a blunderbuss approach. In addition, the list is something of a moving target, with new allegations arising in the course of discovery and, most recently, in plaintiffs' affidavits opposing defendants' motion for summary judgment.
In such cases, oral argument provides much-needed focus and insures that the Court does not overlook matters that may take on new life in a motion for reconsideration or on appeal. Accordingly, the Court held oral argument on September 29, 2009, and took great pains to establish a binding, exhaustive list of plaintiffs' claims. See Tr. of Sept. 29, 2009, at 24 ("THE COURT: Do we have everything now. MS. POLIAS [plaintiffs' counsel]: I think so, Your Honor. THE COURT: You will be held to it."); see United States Trust Co. v. Shapiro, 835 F.2d 1007 (2d Cir. 1987) (attorney bound by concession made at oral argument). That list forms the basis for the following background, presented in the light most favorable to plaintiffs. See Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003) ("When ruling on a summary judgment motion, the district court must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.").*fn2
A. Isenalumhe's Individual Complaints
In 2002, Isenalumhe accused McDuffie of falsifying the results of the Nursing Department's elections for departmental and college-wide committees. The accusation was made at a department meeting at which most of the faculty was present. Shortly thereafter, Isenalumhe repeated his accusation in a letter to Jackson; MEC's Provost, Dominic Nwasike ("Nwasike"); and the grievance officer of CUNY's faculty union, Dr. John Flowers ("Flowers").
In the spring of 2003, McDuffie reassigned Isenalumhe's preferred courses, which he "had taught for years," Isenalumhe Aff. ¶ 11, to other faculty members with less seniority. That semester, McDuffie assigned Isenalumhe to teach only clinical sections, a course load that, according to Isenalumhe, was more befitting an adjunct than a full professor. See id. Isenalumhe complained about the assignment in a February 10, 2003 memo to McDuffie, with copies to Jackson, Nwasike and Dr. Hiroko Karan ("Karan"), the dean of the School of Science, Health and Technology. See Ofodile Affirmation, Ex. 22.
For the fall semester of 2003, McDuffie assigned Isenaluhme to teach a clinical course in medical-surgical nursing. Believing himself unqualified to teach the course, on July 9, 2003, Isenaluhme left McDuffie a phone message questioning the assignment; receiving no response, he wrote her a letter on August 11, 2003, urging her to reconsider her decision. Isenalumhe then repeated his concerns in (1) an August 26, 2003 letter to Jackson (with copies to McDuffie, Nwasike, Karan and Flowers), and (2) an October 14, 2003 letter to Jackson (with copies to McDuffie, Nwasike, Karan and Flowers, as well as CUNY Vice Chancellor, Dr. L. Mirrer ("Mirrer"), and the chairperson of the MEC chapter of the faculty union, Dr. E. Catapane ("Catapane")).
For the spring semester of 2004, McDuffie assigned one assistant instructor to Isenalumhe's 22-student clinical course; according to Isenalumhe, "State law/regulations" require an instructor for every 10 students. Isenalumbe Aff. ¶ 41. He complained orally to McDuffie, Catapane and Flowers.
The understaffing resulted in several student complaints. Isenalumhe contends that the deputy department chair, Helen Murray ("Murray"), encouraged the students to write "blasphemous" allegations against him. Isenalumhe Aff. ¶ 43. He further contends that Murray violated protocol by not first referring the students to him, and by allowing the students to submit their written complaints anonymously. Finally, he contends that McDuffie "spirited" the complaints to Jackson without first attempting to resolve them at lower levels, in violation of school practice. Isenalumhe orally complained about the handling of the complaints to Catapane and Flowers.
As a result of the complaints, McDuffie assigned Dr. Eileen McCarroll ("McCarroll") to conduct a peer evaluation of Isenalumhe. Isenalumhe avers that such evaluations are unheard of for tenured professors and, further, that the evaluation was carried out without prior notice to him and in a way that humiliated him in front of his students. Isenalumbe contends that Murray's handling of the student complaints and McCarroll's handling of the peer evaluation caused his students to lose respect for him and to become "unruly." Isenalumhe Aff. ¶ 45.
On May 29, 2004, Isenalumhe wrote a lengthy email to Flowers grieving the understaffing of his class, the handling of the student complaints and the peer evaluation. In the email, Isenalumhe claimed that he had been "the victim of systematic witch hunting, harassment and intimidation, perpetrated by the authorities of the Department of Nursing and the College." Ofodile Affirmation, Ex. 11. He asserted that he was "entitled to the performance of [his] duties in an atmosphere free of such contrived adversities." Id.*fn3
For the fall semester of 2004, McDuffie once again assigned Isenalumhe to teach medical-surgical nursing, while assigning his preferred courses to faculty members with less seniority. In a May 29, 2004 email to McDuffie (with copies to Jackson, Nwasike and Karan), Isenalumhe asked to "be allowed to teach the courses [he] usually [taught]." Ofodile Affirmation, Ex. 24. In June 2004, he repeated his request to Karan in person. The medical-surgical course was eventually reassigned to someone else.
B. Gumbs's Individual Complaints
While serving on the department's Curriculum Committee in 2003, Gumbs accused McDuffie, in private, of falsely representing to the college-wide committee that the departmental committee had voted favorably on proposed curriculum changes. Gumbs, along with other faculty members, then complained orally to Karan.*fn4
On January 11, 2005, Gumbs wrote to Nwasike (copying the acting registrar and the new Dean of the School of Science, Health and Technology, Dr. Moshin Patwary ("Patwary")) to complain that someone had, without her authorization, entered grades for one of her courses into MEC's computer system. Gumbs suspected McDuffie, the only other person who knew Gumbs's password to the system.
For the spring semester of 2005, Gumbs was assigned to a non-teaching, administrative position in MEC's Office of Research and Special Initiatives; she received a memorandum from Jackson informing her of the assignment. On February 1, 2005, Gumbs complained to Flowers, who then filed a formal grievance asserting that Gumbs's assignment violated CUNY's bylaws and its collective bargaining agreement with the faculty union. Gumbs eventually hired an attorney to pursue the grievance through the administrative process. Although the final result of the grievance proceeding is not clear from the record, counsel represented at oral argument that Gumbs returned to a teaching assignment. See Tr. at 15 ("MS. POLIAS: I don't know when the process happened, but it was that she was reinstated to teaching.").*fn5
C. Joint Complaints Regarding the Personnel and Budget Committee
Between 2003 and 2005, both Isenalumhe and Gumbs served on the Nursing Department's Personnel and Budget ("P&B") Committee. Throughout their respective terms on this committee, they complained numerous times to McDuffie that she was bypassing the committee and unilaterally hiring, in their opinion, less qualified candidates. Plaintiffs repeated their complaints to Nwasike, Catapane, Flowers and colleagues in the Nursing Department.
In September 2003, Isenalumhe told Nwasike that McDuffie had reported false committee votes regarding hiring and promotion recommendations to the college-wide P&B Committee. At Nwasike's request, Isenalumhe, Gumbs and another committee member then sent the committee's voting record to Nwasike under a cover letter repeating the accusation. See Ofodile Affirmation, Ex. 6. The three professors raised the same accusation in September 2004, this time in conversations with, and in a letter to, Dr. Wilbert Hope ("Hope"), a member of the college-wide P&B Committee.
Also in September 2004, Isenalumhe and Gumbs, along with the two other members of the departmental P&B Committee, sent McDuffie a memo complaining about bias in her handling of faculty evaluations. They contended that McDuffie overlooked weaknesses in faculty members she favored, and strengths in faculty members she did not. They further claimed that instead of submitting all student evaluations to the committee, McDuffie had selectively submitted only those that bolstered her predilections. On November 8, 2004, the four wrote a memo to Nwasike (copying Jackson and Patwary), accusing McDuffie of tampering with the evaluation process.
D. Joint Complaints Regarding the Departmental Reorganization
By July 2005, the bad blood within the Nursing Department had motivated MEC to split the department into a Department of Nursing Bachelor of Science ("BSN") and a Department of Nursing Associate of Applied Sciences in Nursing and Practical Nursing Certificate Program ("AAS/PN"). McDuffie was appointed chairperson of the AAS/PN Department. Isenalumhe was assigned to the BSN Department, Gumbs to the AAS/PN Department.
The departmental reorganization generated another spate of complaints from Isenalumhe and Gumbs. Both complained to McDuffie, Jackson, Patwary, Catapane, Flowers and others that McDuffie had unceremoniously packed their belongings and evicted them from their respective offices. Isenalume avers that he was forced to use cubicles meant for adjuncts, without regular phone or computer access, while his books, teaching materials and personal belongings were kept in a separate room to which McDuffie refused to provide a key; he finally obtained a new office in the ninth week of the semester. For her part, Gumbs states that the filing cabinet containing her teaching materials was locked in her old office for several weeks, and that McDuffie refused to provide a key to the new office, causing Gumbs to leave her door unlocked; she complained several times that someone had apparently rummaged through her belongings.
On November 2, 2005, Isenalumhe and Gumbs co-wrote a letter to CUNY Chancellor Matthew Goldstein ("Goldstein"). The letter reiterated Isenalumhe's complaint regarding his office space and Gumbs's complaint regarding her assignment to a non-teaching position the previous spring.*fn6 The letter concluded by asking Goldstein to "(1) grant [Isenalumhe and Gumbs] a short audience to explain [their] desperate situation and (2) do whatever is necessary to end Dr. McDuffie's harassment and its trauma on all affected." Ofodile Affirmation, Ex. 16.
The Chancellor's Office of Faculty and Staff Relations referred the complaint to MEC's Affirmative Action Officer, Dr. Charlotte Phoenix ("Phoenix"). Phoenix was to investigate the complaint, with the Chancellor's Office "monitor[ing] the process of the investigation." Id. The investigation apparently stalled because Isenalumbe and Gumbs did not believe that "a reliable investigation of the issue [could] be conducted by any staff of Medgar Evers College." Id.
Isenalumhe declined Phoenix's invitation to meet with her. Gumbs, however, met with Phoenix to request a transfer from the AAS/PN Department to the BSN Department, and a promotion to associate professor. The request for a transfer with granted in 2006; the request for a promotion apparently ...