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 Hofstra University ("Hofstra"), David Cohen, and Melissa Connolly. See Docket Entry ("DE") . Plaintiff Lauren Summa has opposed the motion. For the reasons set forth herein, defendants' motion for summary judgment is granted in its entirety.
The material facts, drawn from the Second Amended Complaint and the parties' Rule 56.1 Statements, are undisputed unless otherwise noted. Plaintiff is a former undergraduate and graduate student at Hofstra, having received a Bachelor of Arts degree in Broadcast Journalism in May 2006 and a Master of Arts degree in Speech Communication and Rhetorical Studies in May 2009. Defendants' Rule 56.1 Statement ("Defs. Stmt") ¶¶1-3, DE . Defendant Melissa Connolly is the Vice President of the Office of University Relations at Hofstra. Defendant David Cohen is the head coach for the Hofstra football team. Although the parties dispute exactly when Cohen started in this position at Hofstra, compare Defs' Stmt ¶4 with Plaintiff's Rule 56.1 Statement ("Pl. Stmt") ¶4, DE , there is no dispute that he was the head coach during the events underlying this litigation.
In early 2006, plaintiff began dating Phillip Hall, a member of Hofstra's football team. In or about May 2006, plaintiff saw a posting for a position as a student manager for the football team and sometime thereafter applied for the position. Plaintiff was interviewed for the position by an assistant coach, John Perry, and accepted an offer to take the position. According to plaintiff, Perry told her the position was for fall 2006 and spring 2007. Summa Dep. 167. Plaintiff supports her contention that the position was for both fall and spring with an e-mail dated September 13, 2006 from the secretary of football, Cathy Aull, to someone named Cindy Lewis indicating that football managers were paid a stipend of "$700 now, $300 in the spring." Wigdor Decl., Ex. 9.
Plaintiff attended the team's training camp in August 2006. She claims that during training camp, comments were made about plaintiff's relationship with Hall to the effect "[t]hat he wasn't good enough for me; that we made an odd couple. Things of that nature." Summa Dep. 184. She also testified that on the return bus trip from the Stony Brook game, which according to the schedule took place on August 31st, additional comments were made about her relationship with Hall: "there were players that were making comments about, you know, why are you with him? If you want to be with a, you know, real man, come sit over here with me.
And making jokes about the relationship again. And singling me out for being the only female on the bus." Id. at 193-94. It is undisputed that plaintiff did not report any incidents of alleged harassment until September 24, 2006.
On September 24th, plaintiff, along with Phillip Hall's mother, met with Cohen to discuss a posting on Facebook. At this meeting, plaintiff also advised Cohen for the first time that she had previously been the subject of harassment by the players by way of "comments that had been made on the bus and . . . during camp." Summa Dep. 217. Contrary to plaintiff's assertion, Cohen testified that the Facebook page was the only incident discussed at this meeting. Cohen Dep. 195.
The Facebook issue concerned a posting on the page of a player, Justyn Davis, that consisted of a series of photographs of plaintiff and of Phillip Hall, who some players apparently referred to as "Phillip Banks." The gist of the posting was that plaintiff had "kidnapped" Hall. One photograph of Hall was captioned in part "We have lost one of our dear friends, Phillip Banks. . . It is URGENT THAT WE FIND THIS MAN!!!!" Defs. Ex. M. A second photograph of Hall was headed by a statement that read in part that a "warrant for custody deprivation was issued for the search of Phillip Banks," contained personal information regarding Hall, and was "signed" by the Federal Bureau of Investigation. Id. The personal information included a listing of Hall's weight as "285 pounds (at the time of his disappearance, weight may fluctuate because of deprivation of food and excessive sexual activities)." Id.
One photograph of plaintiff was posted twice on Davis's Facebook page. One page had plaintiff's photograph as part of a "Wanted for Kidnapping" poster, which referred to her as "Missy Piggie" and had additional text warning people not to approach plaintiff and calling her "Extremely Dangerous!!" Id. The second page was headed "Wanted by the FBI," listed Summa's name, along with "aliases" of "Miss Piggie, the 'Wannabe' Big Boss Man, F.B. Manager" and some personal information. Id. She is described as "currently posing as an active member of the Hofstra University Football Team Managerial Staff" and "has a tendency to 'BOSS' People around without any type of authority." Id.
Cohen told plaintiff and Hall's mother that he would speak with the players about the Facebook posting. According to defendants, Cohen spoke individually to the student-athletes involved with the posting on September 25th and directed them to remove the material. Defs. Stmt ¶21. Plaintiff agrees that the posting was removed "a short time after" the September 24th meeting, Summa Dep. 222, but notes that Cohen did not report the incident to the University or the EEO office, nor did he discipline the players. Pl. Stmt ¶21.
On the bus ride after the game at the College of William & Mary on September 30, 2006, plaintiff testified that "there was a comment made about, you know, women shouldn't be managers because they don't know anything about sports. And a reference that, you know, Phil and I should be engaging in sex on the bus. And I also went to use the bathroom and someone had made a reference to Lauren stunk up the bathroom." Summa Dep. 224-25. When asked whether she reported those comments, plaintiff responded "[n]ot that I recall at this time." Id. at 229. Plaintiff also could not identify the speaker of either the "women shouldn't be managers" comment, id. 225, or the bathroom comment. Id. at 228.
On the bus ride back from the University of Delaware on October 14, 2006, plaintiff claims that she was "barricaded in the bathroom by some players" and that she could "hear them laughing and they were holding the door shut." Summa Dep. 229-30. She could not hear what they were saying, she could not identify who the players were, id. at 231, and when asked if she reported this incident at the time it occurred, plaintiff responded "I'm not certain at this time." Id. at 232.
Subsequent to her meeting with Cohen regarding the Facebook posting, she did not complain "to Cohen or the University about any other incidents of alleged sexual harassment or alleged inappropriate conduct until November 18, 2006." Defs. Stmt ¶23.
The Incident of November 18, 2006
On November 18, 2006, plaintiff was on a team bus returning from the University of Massachusetts, the final game of the season. During the trip, Coach Perry played a tape of the movie "Shadowboxer." Pl. Stmt ¶25. Plaintiff testified as to what occurred as the movie played: there were numerous sex scenes that continued to be more graphic in nature. And players making lewd comments and howling and talking about how they wanted to get laid and oh, nice tits. And then there was a particular scene that was shown where a white woman was masturbating to a black man who was in the shower.
And this player, Eric Taylor, turned around in his seat and said to me, this is what you white women want, our black dicks. That shit will make you go crazy. And then everyone started laughing. And I just burst into tears and crying. And I was humiliated and embarrassed and upset.
Summa Dep. 235. Plaintiff went to the front of the bus, complained to assistant coach Perry, and asked him to turn it off. Plaintiff admits that Perry immediately turned the movie off. According to plaintiff, the players were chanting "we want boobies" and asking for the movie to be turned back on as she returned to her seat. Id. at 236. Additionally, Eric Taylor told her to "sit down and like shut the fuck up." Id. Perry then instructed the players to be quiet, id., and stood by plaintiff for the remaining 10 to 15 minutes of the trip. Perry Dep. 64.
There is no dispute that plaintiff reported the incident to Cohen, who was on a different bus, as soon as the buses arrived at Hofstra. According to plaintiff, as she presented her complaint, Cohen "appeared irritated and looked like he wanted to, like, remove himself from the conversation and go somewhere else." Summa Dep. 239. She says that she told him that she "had enough of this harassment" and that she "was tempted to report this to public safety." Id. at 238. According to plaintiff, Cohen told her that reporting the incident to public safety would draw "attention to the program. And that he would just deal with it later" and would "handle talking to Eric at some point, like Monday or something." Id. at 239-40. After the conversation, plaintiff and Hall went to public safety to report what had happened. Id.; Dep't of Public Safety complaint of 11/18/06, Wigdor Decl. Ex. 17. Summa's statement to public safety referenced only the bus incident of November 18th.
After speaking with plaintiff, Cohen spoke with Perry by phone immediately, Cohen Dep. 40-41, and spoke with Eric Taylor and two or three other players on Sunday. Id. at 38. By Sunday evening, Cohen had made the decision to terminate Taylor from the football team. Id. at 31. The November 18th incident was the "final straw" that, in addition to two other incidents involving academic deficiency and a fraternity hazing incident, resulted in Taylor's dismissal from the team. Id. at 31-32. Within 48 hours of the incident, Cohen had alerted his supervisors and reported his findings. Id. at 26-30. Cohen called plaintiff on Monday night to tell her that Taylor would no longer be on the team. Id. at 39. He testified that when he called plaintiff on Monday night, he was unaware that she had filed a complaint with public safety. Id.
As a result of the complaint to public safety, Hofstra convened an Administrative Hearing Board to address Summa's charges against Taylor on December 7, 2006. Although charged with harassment and verbal abuse, Taylor was held responsible only for verbal abuse and was placed on disciplinary warning and mandated to write a letter of apology to plaintiff. Although plaintiff was sent a letter notifying her of the hearing, she did not receive it until after the hearing had already been held.
In addition to filing her complaint with public safety on Saturday night, plaintiff also that evening sent an e-mail to Lynda O'Malley at the Dean of Students' Office explaining "what had happened, that there were other incidents that had happened." Summa Dep. 246. Plaintiff did not recall whether she had contacted O'Malley previously to discuss the situation with the football team. Id. at 247-48. She met with O'Malley on the Monday following the University of Massachusetts bus trip at which time she told her about the "different harassment" she had experienced, the Facebook incident, and the November 18th bus trip. Id. at 249. O'Malley told plaintiff that she should make a complaint to Maureen Murphy, Hofstra's Equality Officer. Id.
Summa met with Murphy sometime during the week following the November 18th bus incident. Murphy Dep. 130. Murphy told plaintiff that if she wished to file a report, she should put it in writing. Id. at 132. Summa filed such a report, dated November 28, 2006. Wigdor Decl. Ex. 21. The report discusses only the November 18th incident and its aftermath and does not raise any earlier alleged incidents. During Murphy's interview with Summa, prior incidents were mentioned, but Murphy only investigated the November 18th incident as that was the only incident contained in the formal complaint. Murphy Dep. 166-67. Murphy determined that Eric Taylor's comment was a "sexually harassing remark," but as the complaint was a "student-to-student complaint" it was properly referred to the dean of students' office. Id. at 143, 177.*fn1
Murphy did, however, interview the witnesses identified by plaintiff. Id. at 140.
As to the coaching staff's handling of the November 18th incident, Murphy testified that while Taylor's remark was a violation, "as soon as the movie was brought to their attention, the athletic staff handled the matter responsibly." Murphy Dep. 176. On or about December 18, 2006, Murphy sent her memorandum regarding her findings to the vice president for legal affairs. Id.; Murphy Mem., Wigdor Decl. Ex. 22. In her report, Murphy noted that the matter "offers an opportunity for educating the coaching staff and all of the Athletics staff about the University's Harassment Policy" and stated she would like to schedule training "this spring." Wigdor Decl. Ex. 22. The training was provided in or around August 2007. Defs. Stmt ¶47. She also made recommendations regarding the process for selecting movies to be shown on the bus. Murphy's memorandum makes no mention of any other alleged incident of harassment involving plaintiff. Football Team Student Manager position for Spring 2007 Plaintiff states that at the time she was first interviewed in August 2006, Coach Perry told her that the football team's spring sessions, known as "Spring Ball," would start towards the end of the following March, would last for approximately four weeks, and that she would perform tasks similar to those required during the fall. Summa Dep. 168. Plaintiff further claims that Cohen knew she was coming back to work for Spring Ball. Id. at 274. She references a conversation she had on the practice field "during camp, beginning of September" regarding "expectations" and Cohen "knew that I was going here for the spring, and that I had my second year of graduate school, that he wouldn't have to worry about finding someone in the fall and then the following spring, to continue another year." Id. at 274-75. Plaintiff testified that she had "two or three" conversations with Cohen about Spring Ball, but was unable to provide any specifics about when or where those conversations took place or what precisely was said. Id. at 275-79. The record does not reflect any communication whatsoever between plaintiff and the football staff between the end of November 2006 and March 24, 2007.
In or around March 2007, Anthony Battaglia, the team's Equipment Manager hired the previous October, "searched for and selected students who were interest in taking advantage of the student football team manager opportunity for Spring Ball." Defs. Stmt ¶51. Battaglia states that at the time he made the selections, he "was unaware that Plaintiff had any interest in returning to the football team as the student football team manager." Battaglia Aff. ¶4, Moran Decl., Ex. MM. He further swears that at the time he made the selection for spring ball managers, he was unaware of plaintiff's complaint to the university regarding Taylor. Id. at ¶5.
Spring Ball was scheduled to start on Monday, March 26, 2007. On Saturday, March 24, 2007, plaintiff left a voicemail message on the main football office number about the start of Spring Ball and to "get the schedule." Summa Dep. 280-81. On Sunday, March 25th, Cohen returned her call and left a message stating in part that "we hadn't heard from you so we went and filled . . . the equipment manager position for the spring." Wigdor Decl., Ex. 23.
The next documented contact occurred by way of e-mails exchanged between plaintiff and Cohen on April 10, 2007, over two weeks after plaintiff was told that the position had been filled. Plaintiff's first e-mail said that she had been "blown off about reporting to work," and that she had been hired for the entire season including spring ball. Moran Decl. Ex. T. Cohen responded "since we had not heard from you until you left a message" on March 24th, and "spring practice was starting on March 25th we filled the position." Id. Plaintiff responded as follows:
I made several attempts to continue with my position by contacting the office and Coach Perry. I never got any response until when you called me. I feel like I was blown off and my job just given away. When I was hired, I was hired to work in the spring too. You cannot just give a job away when you knew I was coming back to continue. What can we do to solve this problem?
Id. Plaintiff scheduled a meeting with Daniel McCabe, Associate Director of Athletics regarding the spring ball football manager position. McCabe indicated he could get plaintiff a position in another department of athletics, but plaintiff told him "I already have a job. I'm supposed to be working for the football team." Summa Dep. 291. Plaintiff did not take another position in the Athletic Department.
Graduate Assistantship Application
On or about April 24, 2007, Summa applied for a Graduate Assistantship in the Office of University Relations ("University Relations"). This position was credit bearing and thus needed to be budgeted within the department. Connolly Dep. 110. On May 17, 2007, plaintiff met with Helen Stefanidis to interview for the position. About one week later, she met with two other employees of University Relations. Plaintiff claims that "shortly after" the second interviews, she received a call from Stefanidis in which Stefanidis offered plaintiff the position and plaintiff accepted it. Summa Dep. 313, 317. Plaintiff understood there would be paperwork to complete and that the position would start in September. Id. at 314. By e-mail dated June 28, 2007, plaintiff noted that she had been in contact with Kate Scanlon in student employment regarding the proper paperwork. Wigdor Decl., Ex. 39 Connolly, the Vice President of University Relations, testified that there was confusion regarding both the interview process and the paperwork required for this position, as Connolly wasn't, at that time, aware of the requirements for hiring a Graduate Assistant. Connolly Dep. 111, 115. For example, a signature of a vice president is required on a graduate assistantship as such a hiring affects the department's budget. Miller-Suber Dep. 38-39. In late June, Connolly received a phone call from Evelyn Miller-Suber, Hofstra's Director of Human Resources. At that time, Connolly was advised that, in light of the requirement that she "sign off on the paperwork," she should interview the candidates. Connolly Dep. 128. Miller-Suber also clarified what paperwork was necessary to complete the hire. Id. In addition, Miller-Suber told Connolly that all candidates working in Connolly's office "should be able to represent the University in meetings, represent the University in, with external audiences, and be advocates for the University." Id. at 133-34. Connolly interpreted this "to mean people who could represent the University with any number of people and represent the University's point of view." Id. at 134.
By e-mail dated July 12, 2007, Stefanidis told plaintiff that "[s]ince this is the first time we are hiring graduate assistants, I would like to have you meet with the Vice President, " and through a subsequent exchange of e-mails, a meeting was set. Wigdor Decl., Ex. 41. Summa claims that this was not an interview, just a "courtesy meeting." Summa Dep. 320. Connolly met with plaintiff in person, and with a candidate for a second open position by telephone. Connolly Dep. 120. During the interview, Connolly asked Summa if she had any conflicts at the university and Summa "indicated that she hadn't." Id. at 226.
Connolly testified that she identified several "issues" with Summa's resume. She had concerns regarding plaintiff's representations regarding her programs of study. Summa had identified her undergraduate major as "Broadcast Journalism/Marketing," which Connolly interpreted to be a dual major. Connolly Dep. 171. When questioned on this, plaintiff told Connolly that Broadcast Journalism was her major, but that she had a "great interest in marketing" for internships. Id. at 184. In addition, plaintiff identified her Master of Arts program of study as "Speech Communication/Business," which does not exist at Hofstra. Id. at 170. Plaintiff again explained that she had a great interest in business, which Connolly "took to mean that she was saying she had an interest in business, so she added it onto the end of what was her stated academic program." Id. at 183. Connolly testified as to her feelings about the importance of accuracy on the issue of programs of study: "I would never accept imprecise, an imprecise title of an academic major on a resume or an academic institution, and that there's no excuse for a less-than-precise use of an academic major, ever." Id. at 187. Connolly also believed plaintiff had overstated the importance of her duties at an internship. Id. at 178-79.
Subsequent to her meeting with plaintiff, Connolly contacted Matt Sobnosky, graduate director of the Speech Communications program and a person listed in Stefanidis's notes as a reference for plaintiff. Connolly Dep. 212. According to Connolly, Sobnosky characterized plaintiff as "all right" and gave a "middle of the road" review that led Connolly to believe that he was "less than enthusiastic" about plaintiff. Id. at 215-16. He also confirmed that there was no Speech Communication/Business academic program. Id. at 214-15. Connolly did not contact any other references for plaintiff.
Connolly decided not to offer the Graduate Assistantship to plaintiff. When Summa learned of the decision, she spoke with Connolly by telephone to demand an explanation. According to Connolly, Summa asked "'Have you heard that there's a problem about me, or that I have a problem,' or something to that effect, at the university." Connolly Dep. 225. Connolly's contemporaneous notes indicate that Summa said it was "mysterious" and that the decision not to offer her the job was "related to another conflict." Id. When plaintiff mentioned another "conflict," Connolly pointed out to plaintiff that she hadn't disclosed any such conflict during the interview when asked, and then terminated the call by recommending that plaintiff contact human resources. Id. at 226-27.
Plaintiff claims that Connolly rescinded the offer of the position that had been offered to, and accepted by, plaintiff and that the actions were in retaliation for plaintiff's prior complaints. Connolly created a file memorandum on July 20, 2007 regarding her meeting with plaintiff, her decision not to offer her the position, and her telephone call with plaintiff after that decision. Wigdor Decl., Ex. 27. In addition to her concerns about plaintiff's resume, and the lukewarm recommendation, Connolly also believed that it was inappropriate for a candidate to involve herself in the internal paperwork issue the way plaintiff had, and that this also factored into her decision. Connolly Dep. 247-49. Connolly's memorandum further states that as a result of the telephone call with Summa, Connolly "was even now more troubled by the allusions she made to another incident which she did not disclose during our initial interview." Wigdor Decl., Ex. 27.
Plaintiff testified that the meeting with Connolly was strange and that Connolly was standoffish. Summa Dep. 322-23. She believes her failure to get the position was "another retaliation move by the university." Id. at 328. When asked whether Connolly had said anything during the meeting to indicate that she was aware that plaintiff had filed a claim against Hofstra, plaintiff responded "[n]ot that I recall at this time." Id. at 324. Connolly testified that she did not become aware of plaintiff's complaint until winter of 2007 after a press conference. Connolly Dep. 51-52.
Plaintiff's Complaint to the NYSDHR
During the time plaintiff was pursuing the Graduate Assistantship
position, she was also
pursuing her discrimination claims with the NYSDHR.*fn2
On or about May 3, 2007, plaintiff filed a complaint alleging
gender discrimination and retaliation. Moran Decl., Ex. Z. Although
she checked 'retaliation' on the form, the complaint itself is the
same report dated November 28, 2006 that she had prepared after her
meeting with Murphy, and concerns only the November 18, 2006 bus
incident. Hofstra submitted its answer to plaintiff's NYSDHR complaint
on May 17, 2007. Wigdor Decl., Ex. 40. Plaintiff has provided a file
memorandum from the NYSDHR dated June 4, 2007 and entitled Final
Investigation Report and Basis of Determination, but there is no
indication when or if this report was disseminated to plaintiff or
Hofstra. On July 23, 2007, three days after Connolly made her decision
regarding the Graduate Assistantship, the Division of Human Rights
issued a Determination after Investigation. Wigdor Decl., Ex. 25.
Plaintiff claims that the decision to deny her the Graduate Assistant
position was made to retaliate against her for filing the NYSDHR
complaint in addition to her earlier complaint.
Plaintiff Found Ineligible for University Employment
On January 25, 2008, plaintiff commenced this case. Plaintiff continued to work as a student employee at Hofstra until the summer of 2008. Summa Dep. 151. According to Miller-Suber, Director of Human Resources, she was informed by Hofstra's legal department that there were duplications of hours worked in plaintiff's time sheets. Miller-Suber Dep. 65-66. She was told that counsel had made the discovery "[d]uring the investigation of one of her cases." Id. at 65.*fn3 Miller-Suber then looked at plaintiff's time sheets for one pay period in July 2006 and compared the billings for her position with the public safety office with her time records for her curriculum and teaching job. Id. at 67-68. Her review revealed billings for duplicate dates and times for both jobs. Id. at 68. By letter dated August 26, 2008, Miller-Suber notified the plaintiff that pursuant to the Student Employment Handbook, she was no longer eligible for undergraduate, graduate assistant positions or any other paid position because a "review of University records indicates multiple instances where you submitted and were paid for duplicative hours." Ltr. of 8/26/08, ...