The opinion of the court was delivered by: Glasser, United States Senior District Judge
Plaintiff, Enid Ximines ("Ximines" or "Plaintiff"), a high school teacher, brought two actions against her current employer, the New York City Department of Education ("DOE" or "Defendant"), alleging that the DOE subjected her to discrimination, retaliation and a hostile work environment in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Before the Court is Defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure ("FRCP") 56.*fn1
The Plaintiff was a teacher at George Wingate High School. On March 4, 2005, she commenced an action ("Action I") against the DOE alleging violations of the ADEA; the New York State and New York City Human Rights Laws.*fn2 (05-CV-1214, Document #1.) The Defendant's motion for judgment on the pleadings was granted in a Memorandum and Order ("M&O") reported in 2006 WL 2086483 (E.D.N.Y. July 25, 2006), in which the procedural history and legal issues are discussed in detail and familiarity with which is assumed. Plaintiff appealed the decision to the Second Circuit. On February 20, 2008, the Second Circuit affirmed the Court's Action I judgment in all respects, save that it vacated the Court's denial of leave to amend the complaint to include a claim for failure to promote Ximines to assistant principal ("AP") of the mathematics department ("AP Math Position") in the summer of 2004. See Ximines v. George Wingate High School, 516 F.3d 156, 160 (2d Cir. 2008).*fn3 The Second Circuit (c) Each numbered paragraph in the statement of material facts set forth [by the moving party] will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party. (d) Each statement. . . controverting any statement of material fact, must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(e). (Emphases in original.)
While deeming all of Defendant's factual assertions as admitted would be justified based on her failure to follow Local Rule 56.1, the Court will simply note that many of Plaintiff's factual allegations do not respond or correspond to Defendant's numbered statements in its 56.1 submission, nor do they contain citations to any evidence in the record, but are instead bald assertions and ipse dixit. remanded for further proceedings. Plaintiff thereafter filed an amended complaint on March 21, 2008. (Document #48, Action I.) The amended complaint contains many of the same claims that had already been considered, and denied, by the Court in its July 25, 2006 M&O. Specifically, Ximines realleges discrimination and retaliation claims regarding: (1) a 2003 failure to promote claim concerning the interim AP Math Position; (2) the principal's comments that the school needed a "vibrant" person; (3) perceived retaliation by Atina Modesto, the person appointed to the interim AP Math Position, in the form of offhand comments, changing student grades, an evaluation of "unsatisfactory" and uninvited intrusions into the classroom; and (4) the denial of promotions to AP positions at various other schools within the New York City public school system. (See Am. Compl., Document #49, Action I.) As these claims have already been dismissed on the merits in the July 25, 2006 M&O, they are precluded. Therefore, the only surviving claim from Plaintiff's Action I complaint is the summer 2004 failure to promote claim remanded by the Second Circuit.
While the Second Circuit decision was still pending, Plaintiff filed a second complaint ("Action II") alleging that the Defendant subjected her to additional instances of age discrimination, retaliation and a hostile work environment on account of her age between 2005 and 2007. (Compl., 07-CV-4390, Document #1.) Specifically, in Action II, plaintiff alleges that the Defendant: (1) assigned her to a "remote, dingy classroom . . . on a high floor of the school building" in the fall of 2005; (2) interrupted her during class on several occasions in the spring of 2006; (3) refused to give her an annual rating on the last day of school in 2007; (4) gave her an annual professional performance appraisal of "unsatisfactory" in 2006. (Id. at ¶¶ 12-19.) She further claims that the Defendant did these things for (1) age discriminatory reasons; (2) in retaliation against her for challenging the discrimination; and (3) thereby created a hostile work environment. (Id. at ¶¶ 25, 35, 41.) Actions I and II were consolidated on April 4, 2008, and the DOE now moves for summary judgment on all claims.
A district court "shall grant summary judgment" where the movant shows "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986). The moving party has the burden to demonstrate that no genuine dispute of material fact exists, and the Court must draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). If the moving party meets this burden, then the non-moving party must "set forth specific facts showing that there is a genuine issue for trial," id. at 250, and "may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful." D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998). While the Court must proceed cautiously when granting summary judgment in discrimination cases because a plaintiff must usually rely on circumstantial evidence to prove the employer's intent, Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991), "the purpose of summary judgment would be 'rendered sterile .. . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion.'" Gentile v. Potter, 509 F.Supp.2d 221, 231 (E.D.N.Y. 2007) (citing Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)). In determining whether there is a genuine dispute of material fact "it must be kept in mind that only by reference to the substantive law can it be determined whether a disputed fact is material to the resolution of the dispute." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994).
II. Discrimination and Retaliation Claims
Under the framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the plaintiff has the initial burden of presenting a prima facie case of discrimination or retaliation. McDonnell Douglas, 411 U.S. at 802. If the plaintiff can make out a prima facie case, the burden shifts to the defendant to put forth some legitimate justification for the alleged unlawful action. Id. at 802--03. If the defendant presents a legitimate justification, it becomes the plaintiff's burden to demonstrate that the defendant's stated reason is pretextual. Id. at 807.
Therefore, in the context of a motion for summary judgment "of discrimination and retaliation claims, the defendant can prevail under the McDonnell Douglas standard either by demonstrating that the plaintiff cannot make the necessary prima facie showing, or by demonstrating that the plaintiff cannot rebut [as pretextual] the defendant's proffered legitimate justification." Vaughn v. City of New York, 2010 WL 2076926 at *8 (E.D.N.Y. May 24, 2010). Although the moving party bears the burden, a plaintiff alleging unlawful discrimination cannot overcome a motion for summary judgment simply "by offering purely conclusory allegations of discrimination, absent any concrete particulars." Id. at *9 (citing Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)).
To establish a prima facie case of age discrimination a plaintiff must show that:
(1) she was a member of the protected class of persons; (2) she was qualified for the position or promotion; (3) she was subject to an adverse employment action; and (4) the challenged action "occurred under circumstances giving rise to an inference of discrimination." Leibowitz v. Cornell Univ., 584 F.3d 487, 498 (2d Cir. 2009). An adverse employment action must be "more disruptive than a mere inconvenience or an alteration of job responsibilities," such as "termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title [and] a material loss of benefits." Id. at 499 (quoting Galabya v. N.Y. City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)). Additionally, the plaintiff bringing suit under the ADEA must "demonstrate ...