The opinion of the court was delivered by: Wall, Magistrate Judge
Before this court, on consent of the parties, is a motion for summary judgment by defendants State University of New York ("SUNY"), State University of New York College at Farmingdale ("SUNY Farmingdale")*fn1, Long Island Educational Opportunity Center ("LIEOC"), Veronica Henry, Jonathan Gibralter, and Robert Reganse. Plaintiffs Rita Hegde and Diane Martin have opposed the motion.*fn2 For the reasons set forth herein, defendants' motion for summary judgment is denied as to Martin's Title VII retaliation claims pertaining to her non-renewal as associate dean and her transfer to a different site, and denied as to Hegde's Title VII retaliation claims pertaining to her demotion from assistant dean, failure to promote her to associate professor, and failure to award adequate discretionary salary increase for 2002-2003. Defendants' motion is granted as to all other claims.
The material facts, drawn from the Complaints and the parties' Rule 56.1 Statements, are undisputed unless otherwise noted.
Defendant LIEOC is one of several educational opportunity centers established throughout New York State for the purpose of providing educational and vocational services to disadvantaged individuals. It has facilities in Brentwood, Hempstead, and on the grounds of SUNY Farmingdale, a campus of the State University of New York ("SUNY"). Defendants' Rule 56.1 Statement ("Def. Stmt") ¶¶ 1-2, DE [34-1]. SUNY Farmingdale maintains a supervisory relationship over the LIEOC. Gibralter Dep. 38:12-39:5.
Defendant Jonathan Gibralter served as President of SUNY Farmingdale from June 2001 through August 2006. Defendant Veronica Henry ("Henry"), who describes herself as an African American woman of Jamaican national origin, became dean of the LIEOC in 1998. At all times relevant to this action, Dr. Henry reported to the president, Gibralter.
Defendant Robert Reganse is an associate professor at the LIEOC who works in the college preparation department teaching both basic and high school equivalency mathematics. Reganse has worked at SUNY Farmingdale for more than 33 years. For roughly 28 years, he has been a member of his union at the university, held the position of vice president of academics, and acted as a key figure in labor management meetings. Def. Stmt ¶ 18; Plaintiffs' Rule 56.1 Counter Statement ("Pl. Stmt") ¶ 18, DE [34-11]. Based on the nature of their arguments, plaintiffs apparently surmise that Reganse used whatever influence he possessed by virtue of his union position to influence others to take allegedly discriminatory actions against the plaintiffs.
Plaintiff Rita Hegde ("Hegde"), a woman of East Indian origin, has been employed by the LIEOC since 1987, when she worked as an adjunct teacher in the English as a Second Language ("ESL") Program. Pl. Stmt ¶ 3. She began working full-time as an instructor at the LIEOC in 1990, teaching ESL, and later worked as an assistant dean from September 2000 through June 2002, when she returned to teaching full-time. Def. Stmt ¶ 3.
Plaintiff Diane Martin ("Martin") is an African-American woman who served a term appointment as associate dean at the LIEOC from August 16, 2001 to December 15, 2002. During her time as associate dean, the three assistant deans at LIEOC, including plaintiff Rita Hegde, reported directly to her. Martin, in turn, reported to defendant Veronica Henry. Plaintiff Hegde's Hiring as Assistant Dean
In the summer of 2000, Hegde, along with other LIEOC faculty, received a memorandum from Henry stating that she was seeking applicants for 10-month and 12-month positions as assistant deans at the LIEOC. Def. Stmt ¶ 218; Pl. Stmt ¶ 218. Hegde, not interested in the positions, chose not to apply. Hegde Dep. 108:24-109:1. However, after Reganse recommended Hegde for the position of assistant dean,*fn3 Henry telephoned Hegde at home and asked her to apply. Henry told Hegde she was the best person for the job and offered her the job. Hegde accepted the offer and began serving as an assistant dean on September 1, 2000.
Martin's Hiring as Associate Dean
In the Spring of 2001, Henry drafted an advertisement and convened a search committee to fill the position of associate dean at the LIEOC. The search committee conducted interviews and recommended three applicants to Henry for a second interview. Of those three, Martin was the only African-American. Henry interviewed all three and selected Martin as her first choice. Def. Stmt ¶ 230.*fn4 She recommended to Gibralter that Martin be hired, and Gibralter approved Henry's recommendation without interviewing Martin himself. SUNY Farmingdale extended Martin an offer of employment as associate dean by letter dated August 2, 2001. Martin's appointment was classified as "Appendix A," and was subject to the laws of New York State and the Policies of the Board of Trustees. According to Martin, she maintained an office on the Farmingdale campus until the end of August 2002. Martin Aff. ¶ 69.
In March of 2002, Vijay Macwan, a Vice-Chancellor at SUNY who was responsible for the EOC programs for the entire state, told Henry she had to cut money out of the LIEOC budget. In total, Henry was responsible for implementing cuts of approximately 5%, over $300,000, of the LIEOC budget.*fn5 Defendants have provided few specifics as to the budget process, offering only Henry's testimony that her "principle" in implementing the cuts was to eliminate administrative positions first and preserve teaching positions to the extent possible. Def. Stmt ¶ 82. Martin counters that this principle is "mere pretext" and was never relayed to her despite her status as Chief Academic Officer of the LIEOC. Pl. Stmt ¶ 82.
Hegde's Encounter with Reganse
On March 20, 2002, Henry brought Gibralter to visit the Brentwood unit of the LIEOC. As assistant dean at Brentwood, Hegde took Gibralter on a tour of the facility's labs and classrooms. Later that day, Hegde traveled to the Farmingdale campus to discuss Gibralter's impression of the Brentwood operation with assistant dean Abraham Sabbas. She located him in the office of Professor Robert Reganse. Upon seeing her, Reganse said to Hegde, "Oh, so tell me what did the president think of the Indian woman running the unit?" Hegde testified that she found the remark offensive.
According to Hegde, this was not the first time Professor Reganse had made comments that she found offensive or embarrassing. Hegde Aff. ¶ 46-50. Hegde avers that, in the Spring of 2000, "in the course of some conversation with me about his knowledge of Hindi words," Reganse used the words "madrchod" ("mother-fucker"), "behnchod" ("sister-fucker"), "lund" ("penis"), "chute" ("vagina"), "gandu" ("homosexual"), "lundvash" ("the person who does it to the homosexual"), "rundi" ("prostitute") and "pokachokedu" ("stud"). Id. at ¶ 46. Reganse admits to having this conversation, but states that it was in the context of telling her about an "extremely embarrassing situation" in which he related his knowledge of Hindi obscenities to a gentleman who turned out to be a priest. Reganse Dep. at 70:6-8; 71-72:19-12.
Around the same time in the Spring of 2000, Reganse allegedly asked Hegde "How come Indian women have voluptuous breasts?" and "when are you going to introduce me to an Indian woman with big breasts?" Hegde Aff. ¶ 47. Reganse did not recall ever saying that. Reganse Dep. at 76:7-10. On another occasion, Hegde avers that Reganse told her about an Indian friend of his who kept a dirty apartment with mouse droppings in it. Hegde Aff. ¶ 50. Reganse acknowledges sharing this information with Hegde. Reganse Dep. at 67-68:20-3.
Hegde never made any formal complaint about any of the incidents that occurred prior to the March 20, 2002 comment. She testified at her deposition that she told assistant dean Donna Scarella about Reganse's earlier remarks from the Spring of 2000 on April 26, 2002. Hegde stated that Scarella was the first person she told. Hegde Dep. 156:18-158:4.
Hegde brought up Reganse's "Indian woman in charge" remark in a telephone conversation with Dr. Henry on April 3, 2002. Henry responded by recommending that Hegde ask Reganse why he made the remark. Hegde felt "hurt and discouraged" by Henry's suggestion and apparently did not speak to Reganse about his remark. Pl. Stmt¶ 58. Martin Becomes Involved in Hegde's Complaint regarding Reganse
On or about April 24, Hegde told Martin about Reganse's March 20 comment at a meeting of the assistant deans. After learning what Reganse said, Martin immediately called Gibralter's office to schedule a meeting. Martin testified that she later found out that Reganse had made other comments to Hegde that she had found offensive. Martin Dep. 216:2-4.
Martin met with Gibralter in his office on April 29 and told him about Reganse's remark regarding an Indian woman running the Brentwood unit. Gibralter responded by telling Martin that if Hegde felt she was being discriminated against, Hegde should file a complaint with the Office of Administrative Action and Diversity.
Martin claims that on April 26, prior to her meeting with Gibralter, she informed Henry that Hegde was still upset about the remark Reganse had made regarding her being in charge of Brentwood. Martin Aff. ¶ 16. Defendants assert that this conversation occurred "on or about May 1, 2002." Def. Stmt ¶ 57. Henry testified that she had not heard from Hegde since she had spoken to her on April 3, and responded to the news from Martin by making an appointment to see Hegde as soon as she returned to her office. Def. Stmt ¶ 58-59.
The parties have differing versions of the sequence of the next few events. According to plaintiffs, Martin informed Henry that Hegde was still upset about the remark Reganse had made regarding her being in charge of Brentwood on April 26, prior to her meeting with Gibralter. Martin Aff. ¶ 16. After that meeting, Martin says she asked Henry to join her for lunch on April 30th. During that lunch, she told Henry that she had reported Reganse's remarks to Gibralter and had asked for his advice as to how to handle the matter. Martin states that Henry responded very angrily to the news that Martin had gone to Gibralter and accused her of going to him to discuss her career and employment status. Martin Aff. ¶ 22-23. Martin testified that Henry remained upset even after Martin assured her that she had gone to Gibralter to discuss Hegde, and not herself. Martin Dep. 236:3-237:8. Plaintiffs contend that it was only after this lunch and after she learned that Martin had already gone to Gibralter with her complaint that Henry scheduled a meeting with Hegde for May 2nd.
Defendants' version of these events differs somewhat. They claim that the conversation between Martin and Henry about Hegde still being upset occurred "on or about May 1, 2002." Def. Stmt ¶ 57. Henry testified that she had not heard from Hegde since she had spoken to her on April 3, and that she responded to the news from Martin by making an appointment to see Hegde as soon as she returned to her office. Def. Stmt ¶ 58-59. As to the lunch with Martin, Henry testified that she recalled going to lunch with Martin, but that neither Hegde, nor Martin's meeting with Gibralter, was discussed. Indeed, Henry maintains that, at that time, she had no idea that Martin had met with Gibraltar. Henry Dep. 129:20-131:3.
The parties agree that a meeting was held on May 2, 2002. Pl. Stmt ¶ 59. Prior to that meeting, Henry told Reganse that Hegde was very upset about the remark he had made to Hegde. Def. Stmt ¶ 60. When Hegde arrived at Henry's office on May 2nd, she asked that Martin participate in the meeting. Present at the meeting were Martin, Reganse, Henry, and Hegde. Reganse began the meeting by saying, "I don't want to mince words, waste time. I apologize." Hedge does not dispute that Reganse made this statement, but felt that his apology was not sincere. Hegde Dep. at 164. Henry then said, since Reganse had apologized, "[L]et's move on." Hegde replied that, "It is too little, too late. Dr. Henry, this is the straw that broke the camel's back." According to Hegde, she then attempted to tell Henry about prior remarks Reganse made, but Henry said "I don't want to hear any of that; if you go to the court I would become an unwilling witness." Hegde Aff. ¶ 80.*fn6 It is undisputed that Henry told Hegde that she had the right to file a complaint with the affirmative action office.
Hegde went to see SUNY Farmingdale's Interim Affirmative Action Officer Patricia Hill-Williams on May 6, 2002. Hegde told Hill-Williams that Reganse had said to her, "So tell me, what did the president think of this Indian woman running the unit?" Def. Stmt ¶ 72-75. Hegde also testified that she told Hill-Williams about the lewd Hindi words used by Reganse in the Spring of 2000. Pl. Stmt ¶ 75. Hill-Williams told Hegde what her rights were, and gave her a complaint form to fill out. Hegde did not send the completed complaint form to affirmative action until October 8, 2002. While Hegde does not dispute that she waited until October to file her formal complaint, her responsive Rule 56.1 statement says only that she "felt overwhelming discouragement to bring the complaint as Ms. Hill-Williams appeared to be protecting Henry." Pl. Stmt ¶ 81.
Martin's Non-Renewal as Associate Dean
Events regarding Martin's continued employment with the LIEOC were occurring during the same time period as the meetings regarding Hegde's complaints of discrimination. Martin does not dispute that she was the last administrator hired by the LIEOC and that her position was non-essential. In mid-April, Henry informed Martin that the State budget would be "the determinative factor" with respect to her continued employment. Def. Stmt ¶ 25; Pl. Stmt ¶ 25. Dr. Henry offered Martin a part-time teaching position to be funded with external money such as grants. Although Henry claims that Martin responded by telling her that she would never teach at LIEOC, Def. Stmt ¶ 29, Martin denies ever making such a statement. Pl. Stmt ¶ 29. To the contrary, Martin testified that on or about April 15th, Henry extended her an offer to continue serving as "Associate Dean of Academic Support Services," and that this offer was taken "off the table" after Martin attempted to confirm the offer in an e-mail to Henry on April 16th. Martin Dep. 160:23-24.
On May 3, 2002, the day after the meeting between Henry, Hegde, Martin, and Reganse regarding Hegde's complaints, Henry sent Martin a Term Appointment Notice indicating that she would be reappointed for four months instead of the "customary" year. Martin Aff. ¶51. Martin alleges that Henry's decision to not renew her appointment was in retaliation for Martin's efforts in opposing discrimination. Id. ¶ 56. Moreover, Martin claims that defendants were obligated to provide notice of non-renewal no later than March 31, 2002, and that the four month appointment was their attempt to "cure" the breach. Id. ¶¶ 48, 54.
Henry ultimately recommended to Gibralter that Martin not be re-appointed as associate dean.*fn7 According to Gibralter, the only reason Henry provided for Martin's non-renewal was the budget. Def. Stmt ¶ 89. Martin does not dispute what Gibralter was told, but strongly disputes Henry's "budgetary reason" as "purely pretextual." Pl. Stmt ¶ 89. Gibralter had the final decision as to whether or not Martin should be renewed, and on May 17, 2002, he sent Martin a non-renewal letter. The letter informed Martin that her term appointment was being extended until December 15, 2002, at which point she would not be renewed.
As to Reganse's involvement in Martin's non-renewal, Henry claims that she never discussed her decision not to renew Martin with Reganse. Def. Stmt ¶ 93. Martin does not provide evidence to specifically contradict this statement, but generally argues that "at one point during my time at LIEOC, it was brought to my attention that [Henry] said if anybody is having problems with Dr. Martin, let her know, document it." Martin Dep. 131-32:20-8. The parties agree that Henry and Gibralter never asked Reganse for input about Martin's job performance. Def. Stmt ¶ 94. Nor do plaintiffs dispute defendants' contention that Reganse never spoke with Gibralter about Martin's involvement in Hegde's complaint. Def. Stmt ¶ 96.
Hegde Demotion from Assistant Dean
On May 30, 2002, Henry told Hegde that due to budgetary constraints, one of the three assistant dean positions at the LIEOC was going to be eliminated. Both Hegde and assistant dean Abraham Sabbas came from the LIEOC's ESL department. Each of these assistant deans also served as teachers, and each was removed from the classroom for twelve hours per week in order to fulfill his or her responsibilities as assistant dean. Def. Stmt ¶ 98-100. According to Henry, when she realized in February 2002 that the budget cut-backs would prevent her from hiring more ESL teachers, she told Hegde and Sabbas that one of the two would have to return to the classroom to teach. Henry Aff. ¶ 57. Henry avers that, "[a]bout two months later," Sabbas told her that he would continue as assistant dean. Id. at ¶ 58. Henry testified that, in contrast, Hegde never voiced a desire to remain in the deanship. Def. Stmt ¶ 101-103. Hegde denies that any such conversation with Henry ever took place, asserts that she learned an assistant dean position was being eliminated for budgetary reasons for the first time on May 30, 2002, and contends that she was never given an option to remain in the deanship. Pl. Stmt ¶ 101. After Hegde ceased serving as an assistant dean, she returned to full-time teaching.
Martin's Transfer to the Brentwood Unit
Notwithstanding the reason for Hegde's demotion, the parties agree that her departure from the deanship created a coverage problem at the Brentwood site. Def. Stmt ¶ 117; Pl. Stmt 117. In mid-June of 2002, Henry informed Martin that someone, perhaps Martin herself, was going to have to be moved to the LIEOC's Brentwood site. According to Henry, it was Martin's responsibility to provide coverage if the assistant deans were unavailable. Def. Stmt ¶ 118. Martin disagrees, arguing instead that her transfer was retaliatory. She avers that she was never told she would be responsible for filling gaps in coverage and points out that oversight of a facility, here the Brentwood campus building, was not included in the brief description of duties listed in the advertisement for the LIEOC associate dean position. Pl. Stmt ¶ 118. Moreover, a transfer to Brentwood would entail a significantly longer commute. Martin Compl. ¶ 41.
Despite Martin's protests, Henry subsequently assigned her to oversee the LIEOC Brentwood facility during the last four months of her employment. Though Henry claims that Martin maintained her office at the Farmingdale campus while overseeing Brentwood, Def. Stmt ¶ 122, Martin contends that she moved all her personal effects out of the Farmingdale office shortly after being transferred, and did not work out of Farmingdale after August 30, 2002. Pl. Stmt ¶ 122.
Hegde's Non-Promotion During the 2001-2002 Cycle
Hegde applied for promotion to associate professor during the 2001-2002 promotions cycle. Defendants assert that the criteria governing Hegde's promotion application were the same criteria which applied throughout Farmingdale State College. Def. Stmt ¶ 126. According to Henry, the LIEOC faculty had unanimously voted, in or about 1997, to be bound by college-wide promotions criteria. Def. Stmt ¶ 127. During the 2001-2002 promotion cycle, the college-wide criteria changed, placing more emphasis on scholarship than in previous years. Def. Stmt ¶ 128. Hegde disagrees that she was bound by college-wide criteria, and contends that SUNY Farmingdale's bylaws mandate that the LIEOC candidates be judged differently. Pl. Stmt ¶ 126.
Hegde was the only faculty member from the LIEOC who applied for promotion to associate professor during the 2001-2002 promotion cycle. The LIEOC promotions committee recommended Hedge for promotion and forwarded its recommendation to the college-wide promotions committee. Def. Stmt ¶ 136.*fn8 The parties disagree about how the college-wide promotions committee evaluated candidates for promotion. According to defendants, the college-wide committee applied current college-wide criteria to applicants for promotion, and created a list giving point scores to applicants. Def. Stmt ¶ 136. Hegde claims that the university's practice was to evaluate LIEOC candidates differently. Hegde Aff. ¶ 116. She also claims that application of the point system was arbitrary. Pl. Stmt ¶139.
Upon completion of the evaluation, the college-wide promotions committee generated a numeric score for each candidate. See Henry Aff., Ex. E. The college-wide promotions committee awarded Hegde a numerical score of 72.9, the sixth highest score of the nine candidates for promotion to associate professor. Def. Stmt ¶¶ 138, 139. These scores are reflected in a document that lists the candidates alphabetically, not in "rank" order by score. According to Henry, this document was published to the faculty and president. Def. Stmt ¶ 140. Hegde contends that no document containing the scores was ever published to the faculty. Pl. Stmt ¶ 140.
The college-wide promotions committee also generated a second document setting forth its priority recommendations for promotion. Brewington Decl., Ex. JJ. On this document, LIEOC candidates were listed separately and Hegde was the only, and hence the top, LIEOC candidate for promotion to associate professor.*fn9 There does not appear to be any dispute that Gibralter received this document from the college-wide committee.
Henry also avers that, around the time this list was published, the President and Provost informed the deans that there would be only four promotions to associate professor.*fn10 The Deans' Council met to discuss the list produced by the college-wide promotions committee. During her deposition, Henry testified that she could not recall whether she was present at that meeting. Henry Dep. at 61:6-25.*fn11 On August 9, 2002, the Deans' Council recommended to Gibralter the four individuals for associate professor from the list generated by the college-wide promotions committee, in fact the four individuals with the highest scores. See Henry Aff., Ex. F. Hegde was not among them. The Deans' Council ranked the four individuals it was recommending for promotion to associate professor in the exact order these individuals were ranked by the college-wide promotions committee.
After the Deans' Council made its recommendations to Gibralter, Henry told Gibralter that she could not recommend Hegde for promotion to associate professor because Hegde did not meet college-wide criteria for scholarship. Def. Stmt ¶ 151. Hegde claims that her supposed lack of scholarship was a pretext. Pl. Stmt ¶ 151. Gibralter concurred with Henry's belief that Hegde's scholarship was dated or weak, and in August 2002, he sent Hegde a letter stating that her promotion had not been recommended to him.
During the 2002-2003 promotions cycle, Hegde's application for promotion to associate professor was not forwarded to the college-wide promotions committee. Plaintiff was ultimately promoted to associate professor on September 1, 2004. Hegde claims that she received the promotion "despite little change in my scholarly ability from the previous promotion cycle." Hegde Aff. ¶115.
Plaintiffs' Internal Grievance Complaints
On October 8, 2002, Hegde and Martin, along with several other LIEOC employees, filed a joint grievance with the college affirmative action office. Both Martin and Hegde requested hearings before a Tripartite Committee, a committee of faculty and staff that is trained by the affirmative action officer. The committee conducts informal hearings of complaints that come in through the affirmative action ...