The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM-DECISION AND ORDER
On June 29, 2004, Plaintiff Abdul-Raoof Mustafa, f/k/a Randolph Thompson, filed this action asserting a First Amendment retaliation claim pursuant to 42 U.S.C. § 1983; a Title VII claim for religious discrimination and failure to accommodate religious practices; and a state constitutional tort claim pursuant to Article I, Section 8 of the New York State Constitution. Plaintiff asserted his Title VII claims against his employer, Defendant Syracuse City School District ("SCSD"), and his section 1983 and state constitutional tort claims against Defendants SCSD, Defendant Stephen Jones, Superintendent of SCSD, in his individual and official capacities, and Defendant Sharon Birnkrant, Principal of H.W. Smith Elementary School, in her individual and official capacities.
On September 11, 2001, Plaintiff, an African American and practicing Muslim, interviewed for a position as a teaching assistant with Defendant SCSD. Shortly thereafter, Plaintiff was hired and began work at Franklin Magnet School ("Franklin"), working one-on-one with children with special needs. While at Franklin, Plaintiff was allowed to attend Jumma prayers -- the traditional Islamic Friday prayers held at a mosque and led by an imam -- by using his lunch time.
Eventually, Plaintiff was transferred to Delaware Elementary School, where he was again allowed to attend Jumma prayers by either coming in early or working late in order to make up the time he missed by attending the prayers. Subsequently, due to budget cuts, Plaintiff was transferred to H.W. Smith Elementary School (the "School").
Upon arrival at the School, Plaintiff informed Defendant Birnkrant that he was a practicing Muslim and that his religion required him to attend Friday noon prayers at a mosque. Initially, Defendant Birnkrant informed Plaintiff that she could not allow him to leave school for Friday noon prayers; later, however, she relented so long as he used his personal time for that purpose.
During his time at the School, Plaintiff would often greet the Muslim students with the traditional Muslim greeting, "As-Salaam-Alaikum," which means "peace be upon you." In March 2004, during parent-teacher conferences, Plaintiff was eating his lunch in the back of the classroom, reading a pocket-sized Quran. During this break, a young Muslim student and her mother, both part of a local refugee program, entered the classroom for a conference with the teacher and the family's sponsor. Upon seeing the mother, Plaintiff greeted her with the traditional Muslim greeting, "As-Salaam-Alaikum," and the mother likewise responded. Plaintiff then picked up the five-year old girl, gave her a hug, and kissed her on the forehead. The following day, the sponsor, speaking for herself and the mother, informed Defendant Birnkrant that she thought that this interaction was inappropriate.
Following this incident, Defendant Birnkrant met with Plaintiff and provided him with a counseling memorandum indicating that he should not speak Arabic or any language other than English while at the school. The memorandum also indicated that Plaintiff should keep his copy of the Quran out of the classroom. Subsequently, the School's building committee, a group of teachers and administrators charged with answering employee concerns on an anonymous basis, disseminated a memorandum to the faculty, which stated that, since the School was an English-as-a-second-language facility, only English should be spoken.
Plaintiff belonged to two internet discussion groups -- an inter-religious discussion group called the Interreligious Council ("IRC") and a peace activism discussion group called the People's Roundtable. In a message to both groups, Plaintiff discussed Defendant Birnkrant's counseling memorandum and attached a copy of the memorandum to his message. Thereafter, a teacher at the School saw the posting and reported it to Defendant Birnkrant.
Two weeks after Plaintiff received the counseling memorandum, Defendant Birnkrant conducted Plaintiff's annual evaluation. As a result of the evaluation, Defendant Birnkrant did not recommend Plaintiff for tenure; Defendant Jones accepted this recommendation and forwarded it to the Board of Education. Upon Plaintiff's request, Defendant Jones provided him with a letter stating his reasons for his recommendation to the Board. Defendant Jones stated that Plaintiff demonstrated that he was unreceptive to supervision by posting the counseling memorandum on the internet, rather than following Defendant SCSD's procedure for rebuttal. Defendant Jones also stated that Plaintiff demonstrated that he was unreceptive to supervision by blaming others for his concerns, by being defensive and by not respecting confidentiality by posting the memorandum on the internet.
On May 17, 2004, Plaintiff filed an administrative complaint against Defendant SCSD with the New York State Division of Human Rights ("NYDHR"), alleging racial and religious discrimination in violation of Title VII and the New York Human Rights Law. On January 13, 2005, the NYDHR dismissed Plaintiff's complaint. See Complaint at ¶ 38. On March 31, 2005, the Equal Employment Opportunity Commission ("EEOC") issued a right-to-sue letter; and Plaintiff filed his complaint within ninety days of that letter. See id. at ¶ 40.
In a Memorandum-Decision and Order dated February 11, 2009, this Court dismissed with prejudice Plaintiff's state constitutional tort claim and Plaintiff's claims against Defendant Jones and Defendant Birnkrant in their official capacities. Currently pending before the Court are Defendants' motion for summary judgment as to all of the remaining claims and Plaintiff's motion for partial summary judgment.
Defendants assert that they are entitled to summary judgment on Plaintiff's First Amendment retaliation claim because Plaintiff was not engaged in protected speech and because they would have terminated Plaintiff even in the absence of this speech. Further, Defendants assert that the Court should dismiss Plaintiff's First Amendment retaliation claim against Defendant Jones and Defendant Birnkrant because they are entitled to qualified immunity.
Defendants assert that they are entitled to summary judgment on Plaintiff's claims of religious discrimination and failure to accommodate under Title VII because (1) Defendants offered Plaintiff reasonable accommodations, (2) Plaintiff cannot show that Defendant Birnkrant made discriminatory statements about him, and (3) Defendants had a legitimate, non-discriminatory reason for instituting a policy of only speaking English at the School.
Plaintiff asserts that he is entitled to summary judgment because (1) the facts demonstrate that his speech was constitutionally protected; (2) the protected speech was on a public issue, in a public forum, and resulted in an adverse employment decision; (3) Defendants' decision not to rehire him was related to his protected speech; and (4) Defendants have not proven that his speech caused disruption at the School or that they would not have rehired him even in the absence of his speech.
A. Summary Judgment Standard
A court may grant a motion for summary judgment only if "the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the court "'cannot try issues of fact; it can only determine whether there are issues to be tried.'" Id. at 36-37 (quotation and other citation omitted).
Furthermore, in assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable factual inferences in favor of the nonmoving party. See id. at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed. 2d 202 (1986)) (other citations omitted). Where the non-movant either does not respond to the motion or fails to dispute the movant's statement of material facts, the court may not rely solely on the moving party's statement of material facts; rather, the court must be satisfied that the citations to evidence in the record support the movant's assertions. See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003).
The Second Circuit has cautioned that summary judgment is often inappropriate in cases where the trier of fact will have to delve into an employer's intent because intent is an issue as to which direct evidence is rarely available. See Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994) (citations omitted); Patrick v. LeFevre, 745 F.2d 153, 159 (2d Cir. 1984) (citations omitted). However, when an employer has explained its conduct and the plaintiff has offered only conclusory assertions in opposition, a court may grant summary judgment. See Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).
B. Plaintiff's Claims Pursuant to 42 U.S.C. § 1983
Section 1983 imposes liability for "conduct which 'subjects, or causes to be subjected' the complainant to a deprivation of a right secured by the Constitution and laws." Rizzo v. Goode, 423 U.S. 362, 370-71 (1976) (quoting 42 U.S.C. § 1983). Not only must the conduct deprive the plaintiff of rights and privileges secured by the Constitution, but the actions or omissions attributable to each defendant must be the proximate cause of the injuries and consequent damages that the plaintiff sustained. See Brown v. Coughlin, 758 F. Supp. 876, 881 (S.D.N.Y. 1991)(citing Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed. 2d 481, reh. denied, 445 U.S. 920, 100 S.Ct. 1285, 63 L.Ed. 2d 606 (1980)). As such, for a plaintiff to recover in a section 1983 action, he must establish a causal connection between the acts or omissions of each defendant and ...