MEMORANDUM-DECISION AND ORDER
On December 14, 2007, Plaintiff, pro se Xiang Li ("Plaintiff") initiated the instant employment discrimination action against Defendants Morrisville State College and David Rogers (collectively, "Defendants"). Compl. (Dkt. No. 1). Plaintiff alleges that Defendants violated Title VII of the Civil Rights Act of 1964, as amended, see 42 U.S.C. § 2000e et seq., when, based upon his race and national origin, they terminated his employment contract, undermined his performance, refused to hire him for a tenure track position, and otherwise retaliated against him. Compl. ¶¶ 4-7.
Plaintiff has sought on three occasions to amend his Complaint so as to add additional defendants and, pursuant to 42 U.S.C. § 1983, to allege violations of his constitutional right to due process. See Dkt. Nos. 57, 64, 75. In each case, leave to amend was denied. Presently before the Court are Defendants' second Motion for summary judgment (Dkt. No. 80); Plaintiff's appeal of a December 29, 2009 Order by Magistrate Judge George H. Lowe denying him leave to amend his Complaint (Dkt. No. 101); and Plaintiff's Motion to compel discovery pursuant to Federal Rule of Civil Procedure 56(f) (Dkt. No. 95).
Plaintiff is a Chinese man and a Canadian citizen. He holds a Master's Degree in Information Systems. In August of 2005, Defendant Morrisville State College ("Morrisville" or "the College") hired Plaintiff as an Assistant Professor in the Computer Information Technology Department ("CIT"); he was terminated on May 19, 2006. The basis for that termination and for the College's failure to offer or interview Plaintiff for a tenure track position form the context of this dispute.
Morrisville State College is one of 64 colleges operated by the State University of New York ("SUNY"). At all relevant times, Defendant David Rogers ("Rogers") was the Dean of the School of Business at the College, having overall supervisory responsibility for that School. In this capacity, Rogers oversaw 25 full-time faculty members. Plaintiff asserts that during the relevant period, of these 25 faculty members, he was the only one who was non-white and the only non-U.S. citizen. Pl.'s Statement of Material Facts (Dkt. No. 104-1) ("Pl.'s SMF") ¶ 3.
According to the College, during 2005-2006, the CIT employed ten faculty members, divided into two distinct categories: tenured faculty, of which there were two; and non-tenured faculty, comprising the remainder. The decision to hire faculty is typically made after a process involving the solicitation of candidates, review by a search committee, interviews, review first by the Dean and then the Provost, whose Office extends the offer to the chosen candidate. Rogers Aff. ¶ 6 (Dkt. No. 80-4). In some cases, however, employment offers for temporary positions are made outside this process and without convening a search committee. Id. ¶ 7. In such cases, the offer is extended directly by the Dean with consultation of the Provost. Id. According to the College, such offers are for year-to-year employment, are subject to annual review, and "do not represent offers that extend to tenure-track positions." Id.; Mills Aff. ¶ 3.
In January 2005, Plaintiff was interviewed for a tenure track position in the CIT, but the position was ultimately awarded to another candidate. Mills Aff. ¶ 5. That candidate resigned shortly before the fall 2005 semester. In response, Dr. Kim Mills*fn1 telephoned Plaintiff, who was then working at Emory & Henry College as an Instructional Technologist, to ask if Plaintiff was interested in the position. Id. ¶¶ 5-7. Dr. Mills claims he made clear to Plaintiff that, while the position being offered was only temporary, a full search for the tenure track position would be conducted the following year, and a positive record of employment at the College would strengthen Plaintiff's candidacy for that position; Mills asserts he never told Plaintiff that by accepting the temporary position he would be entitled to the tenure-track position. Id. ¶¶ 8-9. Plaintiff characterizes his communication with Mills differently, alleging that the latter intentionally and deceitfully induced him into leaving his full-time position at Emory & Henry College by assuring him that "at the end of the academic year, the Department would conduct a search and Plaintiff would be said the best candidate." Pl.'s SMF ¶ 10.
Following the conversation with Mills and various communications between Plaintiff and Rogers, College President Ray Cross extended Plaintiff an agreement letter (Dkt. No. 80-4, Ex. 2), offering Plaintiff an Assistant Professorship "effective September 1, 2005, such appointment to cease August 31, 2006." The letter stated, "This is a temporary appointment subject to and in accordance with the laws of this State and the Policies of the Board of Trustees. Please note that Article XI, Title F and Article XIV, Title A of the Policies are particularly applicable to this appointment."*fn2 Id. Plaintiff accepted the appointment by signing this letter on August 12, 2005.*fn3 Id.
Plaintiff's initiation to Morrisville proved difficult. Due to problems associated with securing a TN visa which Plaintiff attributes to slow processing by SUNY, he missed orientation. Plaintiff also had some trouble securing housing, and he experienced delays in getting a laptop and textbooks, and in getting to observe other faculty members' interaction with students. Pl.'s SMF ¶¶ 15-17. Upon arrival, Plaintiff was assigned to two 400-level capstone courses, which he claims was unprecedented for a newly hired professor. Id. Defendants assert that whatever delays and difficulties occurred, they were not attributable to Plaintiff's race or national origin. Mills Aff. ¶ 13. Plaintiff contends otherwise responding simply that as the only faculty member who was not white and of United States national origin, he "was the only faculty member [for whom] Defendants and Mills created so many difficulties." Pl.'s SMF ¶¶ 16, 18.
Defendants assert that shortly after Plaintiff began teaching, Mills and Rogers began receiving feedback from students complaining about Plaintiff's classroom demeanor and grading policies, including allegations that he shouted at and, in one incident physically shoved a student.
Mills Aff. ¶¶ 17-19; Rogers Aff ¶ 14; Dkt. No. 80-13, Exs. K, L. Mills and Rogers met with Plaintiff to discuss the incidents. At one meeting Plaintiff allegedly remarked that he was accustomed from his teaching experience in China to working with more motivated students, to which Mills responded that Morrisville students may behave differently and less deferentially than those Plaintiff taught in China. Mills Aff. ¶ 20. The three met several more times during the year to discuss Plaintiff's performance, which Mills and Rogers found not to be a good fit for the College. Plaintiff largely denies these allegations regarding student complaints and contends that the allegations demonstrate Mills and Rogers' discriminatory attitude.*fn4 Pl.'s SMF ¶¶ 19-21.
In March 2006, the College publicly posted Plaintiff's temporary position as a tenure track position, thereby soliciting candidate applications and effectively alerting Plaintiff that, if he desired to apply, he would need to compete with others for the position. The job notice included a "Qualifications" section stating, "A strong record of industry experience and a Master's degree required. Ph.D. [sic] preferred." Dkt. No. 80-13, Ex. V.
Plaintiff continued to meet with Mills and Rogers to discuss his allegedly poor performance. One such meeting occurred on April 4, 2006. The parties disagree as to whether Plaintiff, at that time, inquired about extending his employment at the College; at some point, Plaintiff stood up, said "End of conversation!, . . . walked out of the office and closed the door  hard." Li Aff. (Dkt. No. 104-2) ¶ 37. Defendant's allege that Plaintiff returned briefly and threatened them; Plaintiff claims that he only stated that he would "take action." Mills Aff. ¶ 31; Rogers Aff. 20; Li Aff. ¶ 37. On May 19, 2006, Rogers informed Plaintiff that he would not be re-hired and was barred from campus. Shortly thereafter, the College filled two tenure track positions in the CIT. Plaintiff was not interviewed. Both successful applicants hold Ph.D.'s; the national origin of one of those new hires is Taiwan, Republic of China, the other's national origin is the United States. Rogers Aff. ¶ 24. Plaintiff asserts a third person with only a B.A. and no teaching experience was also hired. Pl.'s SMF ¶ 36.
Following Plaintiff's discharge, Rogers, Mills, and other faculty began receiving, by email and telephone, anonymous threats including death threats toward themselves and their families. These continued over a period of eight months. Plaintiff was arrested for these threats, and after a jury trial, was convicted of eleven counts of transmitting death threats in violation of 18 U.S.C. § 875. See U.S.A. v. Li, Case No. 5:07-cr-0272 (Dkt. No. 109) (sentencing Li to 114 months of imprisonment, restitution, and supervised release). Plaintiff maintains his innocence.
Plaintiff never filed a complaint with the College's Affirmative Action Office, but he claims to have complained to the College administration. On July 17, 2006, after being terminated, he filed a complaint alleging discrimination with the State Division of Human Rights ("SDHR") and Equal Employment Opportunity Commission ("EEOC"). The EEOC issued a Notice-of-Right-to-Sue Letter on October 30, 2006. Plaintiff initiated the instant action on December 14, 2007. Defendants moved for summary judgment on November 20, 2009. Dkt. No. 80.
On November 30, 2009, in response to Defendants' Motion for summary judgment and four months after discovery closed, see Uniform Pretrial Scheduling Order (Dkt. No. 35) (setting discovery deadline of July 20, 2009), Plaintiff filed a Motion (Dkt. No. 83) requesting the issuance of subpoenas on two non-parties: his prior employer, Emory & Henry College, and his previous counsel, Wong, Wong, and Associates. Plaintiff explained his rationale for this request in a separate Letter Brief (Dkt. No.90) wherein he alleged that information held by these parties, as well as that of the SDHR, which he also seeks to subpoena, is essential for him to respond to allegations in the Defendants' summary judgment motion. Plaintiff additionally seeks records held by the College detailing the hiring dates of CIT faculty and student contact information. Dkt. No. 95-1.
By Order dated December 29, 2009, Magistrate Judge Lowe found that "Plaintiff simply has failed to show that the materials being sought are relevant to the issues raised in the summary judgment motion. However, in his opposition to that motion Plaintiff may submit to Senior Judge Kahn an affidavit pursuant to Rule 56(f) of the Federal Rules of Civil Procedure." Dkt. No. 92 at 1-2. Plaintiff has now submitted an affidavit and Motion pursuant to Rule 56(f) requesting this Court reconsider the Magistrate Judge's determination, issue the third-party subpoenas, and stay the Defendants' Motion for summary judgment for at least five weeks after her receives the subpoenaed materials. Dkt. No. 95.
In addition to his Motion to compel further discovery, on February 22, 2010, Plaintiff submitted a letter in which he expresses that he "strongly disagree[s]" with Magistrate Judge Lowe's February 9, 2010 Order (Dkt. No, 97) denying Plaintiff's third motion for leave to amend his Complaint (Dkt. No. 75). In that proposed amended complaint (Dkt. No. 75-1), Plaintiff again seeks to join various additional defendants and allege an additional due process claim pursuant to 42 U.S.C. § 1983. In his February 9, 2010 Order, Magistrate Judge Lowe explained that, as with Plaintiff's previous attempts, in his third proposed amended complaint "Plaintiff again has failed to allege facts plausibly suggesting a constitutional violation by the persons he seeks to join." Dkt. No 97 at 3. In his letter, which the Court construed as a Motion to appeal an order of a magistrate judge, Plaintiff contends that 1) in his Memorandum of law in opposition to Defendants' summary judgment motion (Dkt. No. 104) (which was not filed at the time of his Letter Motion), he alleges facts plausibly suggesting a constitutional violation; 2) that the "Supreme Court does not require [him] to 'allege facts plausibly suggesting" such violation; and 3) requesting, that if this Court disagrees, that it specify how Plaintiff can fix the deficiency.
II. APPEAL OF THE MAGISTRATE JUDGE'S ORDER
In reviewing appeals of a magistrate judge's rulings, the Court is to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made . . . [and] may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b). Where, however, an objecting "'party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error.'" Farid v. Bouey, ...