The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.
MEMORANDUM OPINION AND ORDER
Plaintiff Colette Ragin claims that she was subjected to race discrimination, a hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., while employed as an assistant principal at the East Ramapo Central School District between August 2002 and December 2004.*fn1
Defendant moves for summary judgment on all of Plaintiff's claims, arguing, inter alia, that Plaintiff's claims are time-barred, that its actions were justified by legitimate concerns about Plaintiff's job performance, that Plaintiff was never subjected to a hostile work environment, and that it did not retaliate against her for engaging in protected activity. For the reasons stated below, Defendant's motion for summary judgment (Docket No. 25) will be GRANTED.
In August 2002, the School District hired Ragin, an African-American female, to serve as the assistant principal of Lime Kiln Elementary School. (Def. Rule 56.1 Stat. ¶ 5)*fn2 Neil Kaplicer, Lime Kiln's principal and a white male, recommended her for this position. (Id. ¶ 6) Plaintiff was employed by the District for two and a half years until her termination in December 2004. (Id. ¶ 7)
A.Custodian's Alleged Sexual Harassment
Plaintiff alleges that in November 2003, when she was in a supply closet obtaining construction paper, and in January 2004, when she was in a storage room obtaining binders, custodian Robert Manion's hand "grazed" her buttocks. (Pltf. Rule 56.1 Counter-Stat. ¶ 34; Johnson Aff., Ex. H.)Plaintiff alleges that she verbally complained to Principal Kaplicer after each incident. (Pltf. Rule 56.1 Resp. ¶ 56; Ragin Aff. ¶ 20) After the November 2003 incident,Kaplicer spoke with Manion, who explained that he had touched Ragin on the side "to try to get past her." Kaplicer told Manion to "be more careful" but was apparently satisfied that this contact was innocuous.
(Pltf. Rule 56.1 Counter-Stat. ¶¶ 42--45; Sussman Aff. Ex. 1 at 9--11, 15) Manion retired from the District in January 2004 (Def. Rule 56.1 Stat. ¶ 22; Johnson Aff., Ex. X at 15), and at about the same time, Kaplicer announced that he would retire at the end of the 2003--04 school year. (Def. Rule 56.1 Stat. ¶ 18; Johnson Aff., Ex. Y at 107)
On June 4, 2004 -- shortly before Kaplicer's June 30, 2004 retirement --Ragin sent a letter to him recounting her accusations against Manion, who had since retired. She "formally request[ed] [Kaplicer's] . . . prompt attention to this matter." (Johnson Aff., Ex. H; Pltf. Rule 56.1 Counter-Stat. ¶ 56; Def. Rule 56.1 Stat. ¶ 61)
B.January 2004 Performance Evaluation
During the 2002-03 school year, Ragin received two positive performance evaluations from Principal Kaplicer. (Pltf. Rule 56.1 Counter-Stat. ¶¶ 7, 14; Ragin Aff., Ex. 9, Ex. 10) Kaplicer's January 2004 mid-year review of Ragin continued to rate her as "satisfactory," but contained complaints about her scheduling and budgeting skills, and communications with the District's central administration. (Johnson Aff., Ex. W; see also Def. Rule 56.1 Stat. ¶ 24; Pltf. Rule 56.1 Resp. ¶ 24, Pltf. Rule 56.1 Counter-Stat. ¶ 17) Ragin filed a rebuttal to the January 2004 evaluation on February 13, 2004, in which she stated that she "accept[ed] the evaluation" but argued that it did not acknowledge "the full range of [her] accomplishments/contributions." (Johnson Aff., Ex. C; Def. Rule 56.1 Stat. ¶ 26; Pltf. Rule 56.1 Resp. ¶ 19; Johnson Aff., Ex. K at 245--46; see Ragin Aff., Ex. 2)
Plaintiff and Kaplicer later met with Assistant Superintendent Linda Cruz. (Def. Rule 56.1 Stat. ¶ 28; Pltf. Rule 56.1 Resp. ¶ 28; Cruz Aff. ¶ 7) The parties dispute what was discussed at this meeting. Defendant alleges that the "combative relationship" between Plaintiff and Kaplicer was discussed as well as Ragin's poor attendance, non-responsiveness to directives, and failure to notify the school about her absences (Def Rule 56.1 Stat ¶¶ 28-29; Cruz Aff. ¶ 7), while Ragin asserts that the only issue that was discussed was her complaints about Kaplicer's alleged withdrawal of support for a Motown production she had organized at the school to celebrate Black History Month. (Def. Rule 56.1 Stat. ¶ 30; Pltf. Rule 56.1 Resp. ¶¶ 28-30; Sussman Aff., Ex. 2 at 93--96; Cruz Aff. ¶ 7; Ragin Aff. ¶ 14)
C.Application for Promotion
On February 12, 2004, Ragin applied for three vacant principal positions within the District for the 2004--05 school year. (Def. Rule 56.1 Stat. ¶ 32) After proceeding through an initial screening process designed to narrow the applicant pool, Plaintiff was granted an interview on March 30, 2004 for the Lime Kiln principal vacancy only. (Id. ¶¶ 35-- 36; Sculnick Aff. ¶ 13, Johnson Aff., Ex. E) She was one of thirteen candidates selected for a second-round interview, which took place on April 27, 2004. (Def. Rule 56.1 Stat. ¶¶ 41, 44) Plaintiff was not selected as a finalist by the interview committee, however, and the position was ultimately offered to another female African-American candidate, Lori Lowe-Stokes. (Id. ¶¶ 46, 49--50) On May 21, 2004, Plaintiff received formal notification that she had not been selected to fill the Lime Kiln principal vacancy. (Id. ¶ 51)
D.Continuing Difficulties with Kaplicer
On May 12, 2004, Ragin met with Assistant Superintendent Mitchell Schwartz and Director of Personnel Mary Sculnick to discuss her strained relationship with Kaplicer. (Id. ¶ 55; Schwartz Aff. ¶ 5; Sculnick Aff. ¶ 5) At the meeting, Plaintiff told Sculnick and Schwartz that Manion had inappropriately touched her in November 2003 and January 2004. (Def. Rule 56.1 Stat. ¶ 56; Schwartz Aff. ¶ 5; Sculnick Aff. ¶ 5) Schwartz scheduled a meeting for Ragin with Assistant Superintendent Cruz on June 1, 2004 to discuss these allegations. (Def. Rule 56.1 Stat. ¶ 60) When Cruz came to Lime Kiln for the June 1 meeting, however, Plaintiff was not at the school. (Id.; Johnson Aff., Ex. K at 294--95) Cruz reprimanded Plaintiff for her absence. (Ragin Aff., Ex. 16) Plaintiff claims that she had obtained permission from Kaplicer to attend a wedding that day (Ragin Aff. ¶ 22, Ex. 3), and that Kaplicer should have explained this to Cruz when Cruz asked where Plaintiff was. (Pltf. Rule 56.1 Counter-Stat. ¶¶ 94--96)
On June 22, 2004, a Lime Kiln teacher brought Kaplicer four pages of pornographic images that a Lime Kiln student had allegedly printed out using a school computer. As Assistant Principal, Ragin was responsible for student discipline and for technology at Lime Kiln. (Def. Rule 56.1 Stat. ¶ 78) Accordingly, Kaplicer gave these images to Ragin and asked her to investigate the incident. (Id. ¶¶ 80-81) In doing so, Kaplicer warned her that the images were "disgusting and graphic." (Id. ¶¶ 76--82) After seeing the images, Plaintiff objected to conducting the investigation. Kaplicer then offered to take the material back. (Id. ¶ 85) Plaintiff refused to return the images, however, completed her investigation, and concluded that the incident had in fact involved student misconduct and misuse of school computers. (Id. ¶¶ 86--87)
E.June 25, 2004 Sexual Harassment Complaint
On June 25, 2004, Plaintiff sent a letter to Director of Personnel Sculnick complaining that Kaplicer had sexually harassed her when he asked her to investigate the pornographic images. (Johnson Aff., Ex. J) In the letter, Ragin also accused Kaplicer of "never investigat[ing] or address[ing]" an "outstanding sexual harassment complaint" she had made -- an apparent reference to the Manion incidents. (Id.) The District then conducted a formal investigation into Plaintiff's allegations concerning both the Manion incidents and the pornographic images, and issued a report on December 17, 2004, concluding that no sexual harassment had taken place. (Johnson Aff., Ex. Q; Def. Rule 56.1 Stat. ¶¶ 92--93, 99)
In rejecting Plaintiff's allegations against Manion, the District noted that he had denied purposefully touching her in an inappropriate manner, that her June 4 memorandum had alleged that Manion's hand had merely "grazed" her buttocks -- and that Webster's New Collegiate Dictionary defines "graze" as "to touch lightly in passing" -- and that in any event Manion had retired from the school six months earlier and accordingly "the School District could not impose any penalty against him." (Johnson Aff., Ex. Q at 10) In rejecting Ragin's claims concerning the pornographic images, the District noted that Ragin did not contest that she was responsible for student discipline and technology, and that, accordingly, Kaplicer did not commit sexual harassment in asking her to investigate an incident that involved potential misuse of a school computer by a student. (Id. at 11)
F.June 2004 Performance Evaluation
On June 17, 2004, Kaplicer gave Ragin a year-end evaluation that rated her performance as "unsatisfactory." (Def. Rule 56.1 Stat. ¶ 66; Johnson Aff., Ex. I, Ex. K at 333--34; Pltf. Rule 56.1 Resp. ¶ 66) In the evaluation, Kaplicer stated that Plaintiff had not completed her assigned work in a timely fashion, including certain teacher evaluations, had a record of poor attendance, had repeatedly failed to notify the District of her absences, interacted poorly with supervisors, and had failed to improve in the areas criticized in her January 2004 evaluation. (Def. Rule 56.1 Stat. ¶¶ 67--72; Johnson Aff. ¶ 5, Ex. I)
On June 21, 2004, Plaintiff wrote a rebuttal to the review, stating: "Please be advised this evaluation is a form of retaliation and it's evidence of Neil Kaplicer punishing me for being sick; i.e., observations not performed in a timely fashion."*fn3 (Def. Rule 56.1 Stat. ¶ 73; Johnson Aff., Ex. I, Ex. K at 333--34)
G.Transfer to Fleetwood Elementary School
In June 2004, the District reassigned a number of assistant principals for the 2004--05 school year and decided to transfer Ragin to Fleetwood Elementary School (Def. Rule 56.1 Stat. ¶¶ 100--01; Schwartz Aff. ¶ 7; Johnson Aff., Ex. Z at 44), allegedly to give her a fresh start at a new school. (Def. Rule 56.1 Stat. ¶ 102; Friedman Aff. ¶ 8; Simmons Aff. ¶ 3; Cruz Aff. ¶ 10) At Fleetwood, Ragin continued to serve as an assistant principal, but reported to Fleetwood Principal Patricia Simmons, an African-American woman. (Def. Rule 56.1 Stat. ¶¶ 103--05; Friedman Aff. ¶ 8; Simmons Aff. ¶¶ 1, 3)
On September 9, 2004, Principal Simmons gave Ragin a list of her job responsibilities and Simmons' expectations for the coming school year. Plaintiff repeatedly refused to sign or acknowledge the list, however, citing advice from her union. (Def. Rule 56.1 Stat. ¶¶ 108-09, 111; Simmons Aff. ¶¶ 4, 6, Ex. M; Simmons Reply Aff. ¶ 2; Johnson Aff., Ex. M; Pltf. Rule 56.1 Resp. ¶¶ 109--11; Ragin Aff. ¶ 31) Ragin's attendance at Fleetwood was -- in her words -- "inconsistent." (Johnson Aff., Ex. K at 259--60; Def. Rule 56.1 Stat. ¶ 114; Pltf. Rule 56.1 Resp. ¶ 114) During the three-and-a -half months between her September start date and mid-December, Ragin missed twenty-two days of work, her full yearly allotment of sick days under the union contract. (Def. Rule 56.1 Stat. ¶ 113; Simmons Aff. ¶ 5, Ex. N; Ragin Aff., Ex. 44) Ragin provided doctor's notes for many of these absences, however. (Pltf. Rule 56.1 Resp. ¶ 113; Ragin Aff. ¶32)
H.Ragin Accepts a Position with the Newburgh School District
During her first semester at Fleetwood, Plaintiff began searching for a new job, and by October 2004, she had "made inquiry" about a principal position in the Newburgh School District. (Def. Rule 56.1 Stat. ¶ 120; Pltf. Rule 56.1 Resp. ¶ 120) At some point between Thanksgiving and November 30, 2004, Ragin learned that the Newburgh School District superintendent was going to recommend to Newburgh's Board of Education that Ragin be appointed to a principal position, the duties of which would commence in January 2005. (Def. Rule 56.1 Stat. ¶ 122; Johnson Aff., Ex. A at 179)
On November 30, 2004, the Newburgh Board of Education officially appointed Ragin principal of the Horizons-on-Hudson elementary school. Ragin received formal written notice of this appointment in a December 1, 2004 letter from the Newburgh School District. (Def. Rule 56.1 Stat. ¶¶ 123, 125; Johnson Aff., Ex. A at 173--75, Ex. R) The appointment was for a three-year period, with salary and duties commencing on January 3, 2005. (Def. Rule 56.1 Stat. ¶¶ 123, 137; Johnson Aff., Ex. A at 176, Ex. R) By the first week of December 2004, Plaintiff had accepted the Newburgh principal position. (Def. Rule 56.1 Stat. ¶ 126; Pltf. Rule 56.1 Resp. ¶ 126) Ragin never disclosed to Defendant that she had accepted the Newburgh principal position*fn4 and instead -- on December 9, 2004 -- arranged for her union counsel to attempt to negotiate a settlement with Defendant in which Ragin would resign from her position at Fleetwood in exchange for a grant of tenure and $125,000. (Def. Rule 56.1 Stat. ¶¶ 127-29; Pltf. Rule 56.1 Resp. ¶¶ 127-29; Johnson Aff., Ex. B)
On December 14, 2004, at least one week after Ragin had accepted the Newburgh position, Principal Simmons sent a letter to Assistant Superintendent Cruz recommending that Plaintiff's employment be terminated. (Def. Rule 56.1 Stat. ¶ 131; Simmons Aff. ¶ 8, Ex. N; Cruz Aff. ¶ 12) In explaining her recommendation, Simmons cited, inter alia, Plaintiff's "frequent and unannounced absences, inability to focus on work, and erratic and unprofessional behavior." (Simmons Aff. ¶¶ 5, 8; Johnson Aff., Ex. N; see also Def. Rule 56.1 Stat. ¶ 132)
On December 15, 2004, Assistant Superintendent Cruz sent a letter to Superintendent Friedman concurring in Simmons' recommendation. (Def. Rule 56.1 Stat. ¶ 133; Friedman Aff. ¶ 9; Cruz Aff. ¶ 12; Johnson Aff., Ex. U) Later that day, Superintendent Friedman sent a letter to Ragin informing her that he would recommend to the East Ramapo Board of Education that Plaintiff's employment with the District be terminated. (Def. Rule 56.1 Stat. ¶ 134; Friedman Aff. ¶ 10; Johnson Aff., Ex. S) Friedman's letter instructed Ragin to no longer report to Fleetwood, but stated that she would receive full pay and benefits through her termination date of February 18, 2005. (Johnson Aff., Ex. S)
After Ragin demanded that Superintendent Friedman explain the reasons for his recommendation, Friedman sent Ragin a letter dated December 22, 2004, listing the deficiencies in her job performance. (Def. Rule 56.1 Stat. ¶ 135; Friedman Aff. ¶ 11; Johnson Aff., Ex. O) Friedman's letter notes, inter alia, that Ragin had failed to comply with directives from her superiors, was frequently absent without explanation, consistently arrived late to school and left early, had failed to complete a substantial amount of her assigned work, had shown consistently weak performance in the areas of "scheduling, budgets, and communications with the Central Administrative offices," and spent an excessive amount of time on her computer and cell phone attending to non-school related matters. (Friedman Aff. ¶ 11; Johnson Aff., Ex. O; Simmons Aff. ¶¶ 5, 8; Cruz Aff. ¶¶ 10--12; see also Def. Rule 56.1 Stat. ¶ 136) Friedman also noted that Plaintiff "often acted in an unprofessional manner with various staff members, demonstrating a pattern of negative interactions with them" (Friedman Aff. ¶ 11; Johnson Aff., Ex. O; Simmons Aff. ¶¶ 5, 8; Cruz Aff. ¶¶ 10--12; see also Def. Rule 56.1 Stat. ¶ 136), and that she had "show[n] an inability to compromise and accept input from others without becoming angry and defensive." (Friedman Aff. ¶ 11; Johnson Aff., Ex. O; Simmons Aff. ¶¶ 5, 8; Cruz Aff. ¶¶ 10--12; see also Def. Rule 56.1 Stat. ¶ 136)
On January 18, 2005, the District's Board of Education accepted Superintendent Friedman's recommendation and voted to terminate Ragin's employment. (Def. Rule 56.1 Stat. ¶ 143; Friedman Aff. ¶ 13; Johnson Aff., Ex. T) On February 18, 2005, Plaintiff's termination became official and she was removed from the District's payroll. (Def. Rule 56.1 Stat. ¶ 144; Friedman Aff. ¶ 13; Johnson Aff., Ex. T)
Plaintiff's appointment to the Newburgh school principal position became effective on January 3, 2005, and she began collecting a salary for this position on that date. (Def. Rule 56.1 Stat. ¶¶ 123, 137; Johnson Aff., Ex. A at 176, Ex. R) Between January 3, 2005, and February 18, 2005, Plaintiff held full-time administrative positions in both Newburgh and East Ramapo, and was receiving a salary for both positions. (Def. Rule 56.1 Stat. ¶ 140; Johnson Aff., Ex. A at 173--75, Ex. K at 241--42)
On January 6, 2005, Plaintiff filed a charge of discrimination with the EEOC alleging sexual harassment, hostile work environment, race discrimination, retaliation, and "disability accommodation concerns." (Johnson Aff., Ex. AA; Johnson Reply Aff., Ex. EE) On March 30, 2005, the EEOC dismissed Plaintiff's complaint, finding that she had failed to state a claim. Ragin commenced the instant action on June 29, 2005.*fn5 (Def. Rule 56.1 Stat. ¶¶ 148--49; Johnson Aff., Ex. BB; Docket No. 2)
I.SUMMARY JUDGMENT STANDARD
Summary judgment is warranted where the moving party shows that "there is no genuine issue as to any material fact" and that it "is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "A dispute about a 'genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). In deciding a summary judgment motion, the Court "resolve[s] all ambiguities, and credit[s] all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment." Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001).
"It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases," and that "the salutary purposes of summary judgment -- avoiding protracted, expensive and harassing trials -- apply no less to discrimination cases than to . . . other areas of litigation." Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (internal quotation omitted). As in any other case, "an employment discrimination plaintiff faced with a properly supported summary judgment motion must 'do more than simply show that there is some metaphysical doubt as to the material facts.' . . . She must come forth with evidence sufficient to allow a reasonable jury to find in her favor." Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
"Mere conclusory statements, conjecture or speculation" by the plaintiff will not defeat a summary judgment motion. Gross v. National Broad. Co., Inc., 232 F. Supp. 2d 58, 67 (S.D.N.Y. 2002); see also Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008) ("Even in the discrimination context ... a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment."). Instead, the plaintiff must offer "concrete particulars." Bickerstaff v. Vassar Coll., 196 F.3d 435, 451-52 (2d Cir. 1999) (disregarding plaintiff's Rule 56(e) affidavit because it lacked "concrete particulars"); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985) ("To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all Title VII cases.").
Defendant argues that Ragin's claims are time-barred because she did not commence this action within 90 days of receipt of a right-to-sue letter. See Sherlock v. Montefiore Medical Ctr., 84 F.3d 522, 525 (2d Cir. 1996) ("In order to be timely, a claim under Title VII . . . must be filed within 90 days of the claimant's receipt of a right to sue letter.") (emphasis added); 42 U.S.C. § 2000e-5(f)(1).
Ragin's right-to-sue letter from the EEOC is dated March 30, 2005. (Def. Rule 56.1 Stat. ¶ 148; Johnson Aff., Ex. BB) It may be assumed, in the absence of a challenge, that a notice provided by a government agency has been mailed on the date indicated on the notice. Sherlock, 84 F.3d at 526 (citing Baldwin County Welcome Center v. Brown, 466 U.S. 147, 148 & n.1 (1984) (per curiam)). "Normally it is assumed that a mailed document is received three days after its mailing." See id. at 525. Here, the parties do not dispute that the EEOC right-to-sue letter was mailed on March 30, 2005, and that Plaintiff received the letter three days later, on April 2, 2005. See Williams v. Salvation Army, 108 F. Supp. 2d 303, 307 (S.D.N.Y. 2000). Because the statutory clock is triggered by Ragin's receipt of the EEOC letter on April 2, 2005, she had until July 1, 2005, to commence this action.
Although this action was not officially commenced until July 18, 2005 -- after the ninety-day period had expired (Docket No. 2) -- Plaintiff filed her complaint with this Court's Pro Se office on June 29, 2005.*fn6 (Sussman Aff. Ex. 8) At that time, Plaintiff also filed an in forma pauperis application with the Court, which was eventually granted. (Docket No. 1)
In Toliver v. County of Sullivan, 841 F.2d 41, 42 (2d Cir. 1988) (per curiam), the Second Circuit held that "[a]t least when in forma pauperis relief is granted, the action should be treated as timely, provided the complaint was received by the clerk's office prior to the expiration of the limitations period." Defendant argues, however, that this equitable tolling rule should not apply here, because Ragin's in forma pauperis application is fraudulent, in that she affirmed under penalty of perjury (and dismissal of her case) that her income was only $4,600 per month when in fact she was earning $8,151 per month. (Def. Reply Br. at 4-5; see Johnson Aff., Ex. A at 173-74, Ex. R; Johnson Reply Aff., Ex. DD) Defendant further argues that Ragin is a highly experienced litigant, having sued four separate employers, including Defendant, for alleged discrimination and/or sexual harassment. (Def. Reply Br. at 5; see Def. Rule 56.1 Stat. ¶¶ 3-4, 154-56)
While Defendant's allegations are disturbing, they do not provide a basis for this Court to find that Plaintiff's claims are time-barred. As an initial matter, Defendant improperly raised this argument for the first time in its reply brief. See, e.g., Playboy Enters., Inc. v. Dumas, 960 F. Supp. 710, 720 n.7 (S.D.N.Y.1997) ("Arguments made for the first time in a reply brief need not be considered by a court."). Moreover, "[i]n the wake of Toliver, district courts are ruling that all complaints filed by pro se litigants are filed at the time of receipt by the Pro Se Office, regardless of whether they are accompanied by an in forma pauperisapplication." Smith v. Henderson, 137 F. Supp. 2d 313, 317 (S.D.N.Y. 2001) (citing Judge v. New York City Transit Auth., No. 99 Civ. 0927 (JGK), 1999 WL 1267462, at *1 (S.D.N.Y. Dec. 29, 1999); Johnson v. National Football League, No. 99 Civ. 8582 (DC), 1999 WL 892938, at *2 (S.D.N.Y. Oct. 18, 1999); Shabazz-Allah v. Guard Mgmt. Serv., No. 97 Civ. 8194 (LBS), 1999 WL 123641, at *1 n.1 (S.D.N.Y. Mar. 8, 1999)).
Because Plaintiff commenced this action as a matter of law on June 29, 2005, when she filed her complaint with the Pro Se Office, this action was initiated within the requisite ninety-day period after receipt of the EEOC's right-to-sue letter. Accordingly, Plaintiff's claims are timely.
B.Title VII Race Discrimination Claim
The framework for analyzing Title VII cases is well established: [Under] the familiar "burden-shifting" framework set forth for Title VII cases by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), . . . the plaintiff bears the initial burden of establishing a prima facie case of discrimination. If the plaintiff does so, the burden shifts to the defendant to articulate "some legitimate, non-discriminatory reason" for its action. If such a reason is provided, plaintiff may no longer rely on the presumption raised by the prima facie case, but may still prevail by showing, without the benefit of the presumption, that the employer's determination was in fact the result of . . . discrimination. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff."
Holcomb, 521 F.3d at 138 (quoting Burdine, 450 U.S. at 253).
To establish a prima facie case of race discrimination, Plaintiff must show: "(1) that she belonged to a protected class; (2) that she was qualified for the position she held; (3) that she suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent." Holcomb, 521 F.3d at 138. Here, Defendant asserts that Ragin cannot establish the third and fourth elements of a prima facie case, and that even if she could, the School District has articulated legitimate, non-discriminatory reasons for its actions, which Plaintiff has not rebutted. (Def. Br. 11)
Plaintiff's burden in establishing a prima facie case "'is not onerous'" -- indeed, it is "de minimis," Beyer, 524 F.3d at 163 -- and is satisfied by "'evidence that raises a reasonable inference that the action taken by an employer was based on an impermissible factor.'" Holcomb, 521 F.3d at 138 (quoting Burdine, 450 U.S. at 253). While a low standard applies to the prima facie case determination, "a plaintiff's case must fail if [she] cannot carry this preliminary burden." Beyer, 524 F.3d at 163.
Here, Plaintiff's claim that she suffered an adverse employment action rests solely on her termination.*fn7 Defendant argues that because Ragin had already accepted alternate employment when she was told that the Superintendent would be recommending her termination, she cannot be found to have suffered an adverse employment action. Defendant further argues that even if Plaintiff's termination could constitute an adverse employment action, it did not occur under circumstances giving rise to an inference of discriminatory intent. Each argument is considered separately below.
1.Adverse Employment Action
Defendant argues that it is entitled to summary judgment on Plaintiff's race discrimination claim because, at the time Plaintiff was suspended and notified of her impending termination, she had already accepted new employment as principal of the Horizons-on-Hudson Elementary School in Newburgh. (Def. Br. 9-10) Accordingly, Defendant asserts that Plaintiff cannot be said to have suffered an adverse employment action and therefore cannot state a prima facie case of race discrimination under the McDonnell-Douglas framework. (Id.) Neither party cites a case involving similar circumstances, and this Court has found no case directly on point.
As discussed above, it is undisputed that Plaintiff was appointed by Newburgh's board of education to fill a full-time principal position on December 1, 2004, and that she had accepted that position by the first week of December, before Defendant had taken any adverse employment action against her. (Johnson Aff., Ex. R, Ex. K at 241, Ex. A at 174-75) Ragin did not disclose to Defendant that she had accepted the Newburgh principal position and would have to resign from her East Ramapo job, however, because she was, at the same time, attempting to persuade Defendant to pay her to resign from a position that she had already effectively abandoned. Accordingly, on December 9, 2004, Ragin arranged for her union counsel to send a proposed settlement agreement to Defendant, pursuant to which Ragin would resign in exchange for, inter alia, a grant of tenure and $125,000. (Def. Rule 56.1 Stat. ¶¶ 127-29; Pltf. Rule 56.1 Resp. ¶¶ 127-29; Johnson Aff., Ex. B) Superintendant Friedman instead chose to recommend her termination on December 15, 2004 (Johnson Aff., Ex. S; Def. Rule 56.1 Stat. ¶ 134), and the East Ramapo Board of Education voted to terminate Plaintiff's employment on January 18, 2005, with an effective date of February 18, 2005. (Johnson Aff., Ex. T)
In the context of a race discrimination claim, for conduct to constitute "an adverse employment action" it must cause a "materially adverse change in the terms and conditions of employment." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000). This nation's discrimination laws speak of "material adversity" because "it is important to separate significant from trivial harm." Burlington Northern & Sante Fe R.R. Co. v. White, 548 U.S. 53, 68 (2006). Here, Ragin did not suffer any materially adverse change in the terms and conditions of her East Ramapo employment, because -- by accepting the fulltime principal position in Newburgh -- she had already effectively abandoned her East Ramapo assistant principal job. Cf. Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) ("Title VII . . . protects individuals from actions injurious to current employment or the ability to secure future employment"; holding "that the loss of an office and phone by an employee who has already been informed of a termination decision, and is waiting out his numbered days on the payroll . . . does not . . . amount to adverse employment action") (emphasis in original).
While Plaintiff argues that Defendant "has not shown that plaintiff would have left the District and commenced employment in Newburgh absent the adverse action which commenced with her December 14, 2004 suspension" (Pltf. Br. 11), this argument is misplaced. Ragin has not alleged in either her brief or her Rule 56.1 Statement that she intended to stay at East Ramapo. Indeed, all of the evidence is to the contrary. Ragin made her choice during the first week of December when she accepted the Newburgh position. (Johnson Aff., Ex. R, Ex. K at 241, Ex. A at 174-75) She chose not to disclose that choice as part of a campaign to extract a settlement from the School District, but Ragin's scheme does not change the fact that she had chosen to accept the Newburgh position and therefore surrender the East Ramapo position before Defendant took any adverse employment action against her.
In accepting the Newburgh position before Defendant had taken any adverse employment action against her, Ragin effectively voluntarily resigned from her East Ramapo job. In this Circuit, in the race discrimination context, once an employee has voluntarily resigned or informed their employer of their intention to resign, the employee cannot suffer an adverse employment action. See, e.g., Memnon v. Clifford Chance US, LLP, No. 08 Civ. 2874 (HB), 2009 U.S. Dist. LEXIS 99936, at *16-18 (S.D.N.Y. Oct. 27, 2009) (concluding that there had been no adverse employment action because all adverse acts took place after plaintiff had executed a settlement agreement that provided for her resignation); Regis v. Metropolitan Jewish Geriatric Ctr., No. 97 Civ. 0906 (ILG), 2000 U.S. Dist. LEXIS 2215, at *20-21(E.D.N.Y. Jan. 11, 2000) (finding that plaintiff had failed to make out a prima facie case of retaliation where the adverse actions took place after she tendered her notice of resignation); see also Evans v. Davie Truckers, Inc., 769 F.2d 1012, 1014 (4th Cir. 1985) (because the "evidence clearly established that [the employee] voluntarily resigned his employment with the defendant, [he] suffered no adverse employment action at the hand of the defendant" (internal quotation marks omitted)).
In Memnon v. Clifford Chance US, LLP, the plaintiff was a law firm associate who asserted race discrimination and retaliation claims. See Memnon, 2009 U.S. Dist. LEXIS 99936, at *2-3. After complaining about the firm's allegedly discriminatory practices, the plaintiff resigned pursuant to a settlement agreement. Id. The plaintiff later sued the firm for employment discrimination, however, claiming that it had refused to provide a recommendation letter and gave negative references to prospective employers. See id. The district court ruled that the plaintiff could not establish a prima faciecase: "there has been no adverse employment action taken against her because all of the conduct that gives rise to her allegations against Clifford Chance occurred after she resigned pursuant to the Settlement Agreement." Id. at *16-17.
Similarly, in Regis v. Metropolitan Jewish Geriatric Ctr., the court concluded that the plaintiff had failed to establish a prima faciecase of retaliation where she had tendered her notice of resignation before the asserted adverse employment action took place. Regis, 2000 U.S. Dist. LEXIS 2215, at *20-21.In Regis, the plaintiff -- a nurse -- resigned on July 18, 1994, with her resignation effective on August 26, 1994. Id. at *13. On July 25, 1994, the plaintiff accepted employment with another agency. After an altercation between the plaintiff and another of the defendant's employees on July 25, 1994 about whether Regis would complete certain work before she left, the employer decided that Regis' employment would be terminated immediately and that she would not work through August 26. Regis argued that she suffered an adverse employment action when the employer moved up her resignation date. Id. at *20. The court disagreed. In deciding that the plaintiff had suffered no adverse employment action, the court placed particular emphasis on the fact that the employee had already accepted new employment. Id. at *20 ("At that time, [plaintiff] already had one job in hand . . . [and] was offered a second new job.").*fn8 Similarly, by the time Ragin was informed of the Superintendant's decision to recommend her termination, she not only had been offered new employment, she had accepted it. (Def. Rule 56.1 Stat. ¶ 126; Johnson Aff., Ex. K at 241)
By accepting the fulltime Newburgh position, Ragin voluntarily gave up her East Ramapo position, although she chose not to disclose this to Defendant for strategic reasons.*fn9 Having taken steps that required her to resign from her East Ramapo position before Defendant took any adverse employment action against her, Ragin cannot be said to have suffered a "materially adverse change in the terms and conditions of employment" when Defendant announced that she would be terminated. Galabya, 202 F.3d at 640. Accordingly, Defendant is entitled to summary judgment on Ragin's race discrimination claim.
2.Inference of Discriminatory Intent
Even if this Court could find that Ragin suffered an adverse employment action, she has failed to offer evidence that could allow a reasonable jury to find that her termination occurred under circumstances giving rise to an inference of discrimination. "[D]rawing all inferences in Plaintiff's favor," Ragin has not met the "low threshold" and minimal showing necessary to make out the fourth element of a prima facie case. Holcomb, 521 F.3d at 139 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)).
"It is well-settled that an inference of discriminatory intent may be derived from a variety of circumstances, including, but not limited to . . . the employer's criticism of the plaintiff's performance in ethnically degrading terms; or its invidious comments about others in the employee's protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff's discharge." Leibowitz v. Cornell University, 584 F.3d 487, 502 (2d Cir. 2009). Here, the only evidence in the record that could possibly show racially discriminatory animus involves Kaplicer's alleged actions and comments.
Plaintiff alleges that Kaplicer yelled at her for inviting an NAACP official to address students at Lime Kiln (Ragin Aff. ¶ 143), and that after he was passed over for a promotion to superintendent, Kaplicer told her that the District favored minorities. (Pltf. Rule 56.1 Resp. ¶ 20; Ragin Aff. ¶ 8) Plaintiff also claims that Kaplicer "had distanced himself" from the planning of ...