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Bancroft Burke v. Deer-Park Union Free School

February 3, 2011


The opinion of the court was delivered by: Joanna Seybert, U.S.D.J.


Cruser Mitchell & Novitz, LLP 175 Pinelawn Road Suite 301 Melville, NY 11747 SEYBERT, District Judge:

Pending before the Court is a motion for summary judgment filed by Deer-Park Union Free School District ("Deer Park" or "Defendant") seeking dismissal of every claim contained within the Complaint filed by Bancroft Burke ("Burke" or "Plaintiff"). Plaintiff brought this action against Deer Park, his former employer, alleging (1) employment discrimination on the basis of race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), of N.Y. Executive Law § 296, and of 42 U.S.C. § 1981; (2) retaliation under Title VII; and (3) breach of contract. For the reasons discussed below, Defendant's motion is GRANTED.


Deer Park is a public school district located in Suffolk County, New York that provides educational services to more than 4,000 students in pre-kindergarten through the 12th grade level. On February 16, 2005, the Deer Park Board of Education approved the appointment of Plaintiff, an African-American male, to the position of Assistant Superintendent for Business and Operations for a three-year probationary period. Defendant's Local Rule 56.1 Statement ("Def. Stmt.") ¶¶ 1-4. Plaintiff's chief responsibility in this role was to oversee Deer Park's budget comprising more than $90 million. Id. ¶5.

Since each school year's budget is created one year in advance and Plaintiff was employed in 2005, developing Deer Park's 2006-2007 budget became Plaintiff's first task. It is undisputed that Elizabeth Marino, Deer Park's superintendent of schools starting from October 1, 2006, was deeply disappointed both with Plaintiff's resulting budget itself and with the process by which it was developed. Plaintiff's Amended Rule 56.1 Statement ("Pl.'s Stmt.") ¶ 29. In a May 2007 memorandum to Plaintiff, for example, Marino wrote:

Although the 2006-2007 budget was approved, the process by which it was developed confused and frustrated administrators who function within its limits. Much distrust was generated by the lack of communication about the disproportionate amount of monies in various budget codes with respect to the importance and necessity of programs as well as mandated functions. This disconnect manifested itself in the inordinate amount of transfers occurring between budget codes this year as well as a late start to some necessary programs for students.

Def.'s Mot. Summ. J., Ex. C.

Marino added that she was "extremely disappointed to note that [Plaintiff had] chosen to disregard [her budgetary advice] on several occasions," resulting in improvident decisions which "reflected poorly on the credibility and competence of central office administration." Id.

More specifically, Plaintiff exhibited the following undisputed shortcomings, among others. First, after the 2006-2007 budget was presented to and approved by Deer Park's Board of Education, Plaintiff "found" an additional $600,000 in revenue, prompting the calling of an emergency meeting that made the administration appear embarrassingly inept. Def. Stmt ¶ 42.

Second, Marino requested that Plaintiff calculate a projected tax rate by estimating fixed costs for the year and revenues based on a 3% increase in state aid; subsequently, when aid was announced at a lower rate of 1.3%, Marino asked Plaintiff for an updated estimate. When Plaintiff proved unable to explain why the revenue amount remained the same despite the change in state aid, it "became apparent that Mr. Burke made up the difference by substantially increasing his projection for interest earned . . . greatly undermin[ing] [Marino's] confidence in the accuracy of the original accounting." Def.'s Mot. Summ. J., Ex.C.

Third, Plaintiff assured Marino that the 2006-2007 budget would have no changes to the budget codes other than those previously discussed. This explains why Marino was "extremely dismayed" to find that Plaintiff unilaterally entered unauthorized amendments to the budget codes. Id.

Fourth, Plaintiff submitted a so-called Fund Balance Analysis, which he was regularly required to do, that was found to be replete with errors by the Superintendent and an independent auditor, one Michael Nawrocki. Def. Stmt ¶ 51; Affidavit of Michael Nawrocki, p. 1.

Prompted by those mishaps among others, the Deer Park Board of Education and audit committee began to voice concerns about Plaintiff's competence and ability to continue in his position as the Assistant Superintendent for Business in the district. Def. Stmt ¶ 63*fn1 . Finally, on July 12, 2007, Marino advised Plaintiff that his employment would be terminated. Id.¶ 64. Plaintiff tendered his resignation before the termination was effectuated. Id. ¶ 65.

Plaintiff claims that his final paycheck shorted him $3,295.41 since his salary calculation ought to have been based on an eleven and a half, rather than twelve, month work year. Beyond his ipse dixit, he offers no evidence in support of this contention against Deer Park's proof that Plaintiff's ...

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