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Michael Senno v. Carol Franks-Randall

July 28, 2011

MICHAEL SENNO,
PLAINTIFF,
v.
CAROL FRANKS-RANDALL, INDIVIDUALLY,
BETTY FUNNY-CROSBY, INDIVIDUALLY,
MATTHEW R. C. EVANS, INDIVIDUALLY, AND
DEBRA B. LAWRENCE, INDIVIDUALLY,
DEFENDANTS.



The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.

OPINION and ORDER ELMSFORD UNION FREE SCHOOL DISTRICT,

Plaintiff Michael Senno ("Plaintiff") brings this action pursuant to Title VII, 42 U.S.C. § 2000e et seq., against Defendants Elmsford Union Free School District (the "District"); Carol Franks-Randall, individually ("Dr. Franks-Randall"); Betty Funny-Crosby, individually ("Ms. Funny-Crosby"), Matthew R. C. Evans, individually ("Mr. Evans"); and Debra B. Lawrence, individually ("Ms. Lawrence") (collectively, the "Defendants"). Plaintiff alleges that Defendants collectively violated his rights under Title VII by engaging in gender discrimination, and retaliation for Plaintiff's filing of a complaint with the Equal Employment Opportunity Commission ("EEOC").

Defendants move, pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Rule 56"), for summary judgment dismissing the complaint. For the reasons stated below, Defendants' motion is GRANTED in part and DENIED in part, as to the District; and GRANTED as to the individual Defendants.

I. BACKGROUND

A. Factual Background

1. Parties

Unless otherwise noted, the following facts are undisputed and are derived from the parties' Local Civil Rule 56.1 statements, affidavits, and other submissions. The Court construes all evidence in the light most favorable to the non-moving party and draws all inferences in the non-moving party's favor.*fn1 Andersonv.Liberty Lobby, Inc., 477 U.S. 242, 250, 255(1986).

Plaintiff is the former Deputy Superintendant for the District (Defendants' Local Civil Rule 56.1 Stmt. (hereinafter "Defs.' 56.1 Stmt.") ¶ 19.) He was appointed to that role in 2005, having previously served as an Assistant Superintendant for Business Affairs for the District since 1993. (Id. ¶¶ 1, 17.) He received tenure in approximately 1994. (Id. ¶ 2.) He was also the District Clerk until January 2008, and was appointed a sexual harassment officer for the District in 2005. (Id. ¶¶ 14, 15.) He occupied the role of Deputy Superintendent until disciplinary charges were issued against him in February 2008, at which time he was suspended with pay during the pendency of hearings pursuant to New York State Education Law § 3020-a ("Section 3020-a" or "3020-a"). (Id. ¶¶ 231-32, 238.) Following the hearings, at the recommendation of the Hearing Officer, in December 2009, Plaintiff's job was terminated by vote of the District Board of Education (the "Board").

Defendant Franks-Randall was, at all times relevant to this case, the Superintendent of the District, until her retirement in June 2008. (Id. ¶¶ 3, 9; Stern Declaration in Support of Defs.' Motion for Summary Judgment ("Stern Dec.") Exs. A and B, Complaint and Amended Answer.)

Defendants Funny-Crosby, Evans and Lawrence were, at all times relevant to this case, members of the Board. (Stern Dec. Exs. A and B.)

2. Sequence of Events

The events relevant to this case began with a consensual sexual affair between Plaintiff and another administrator in the district, Dr. Sandra Calvi-Muscente ("Dr. Calvi"). During the affair, which lasted roughly from September 2005 through June 2007 (Defs. 56.1 Stmt. ¶¶ 61, 77), Dr. Calvi was the Assistant Principal of the District's Junior / Senior High School. (Id. ¶20.) At that time, she was also a member of the Board of Education of the Mahopac Central School District. (Pl.'s 56.1 Stmt. ¶ 457.) She was also a District sexual harassment officer. (Id.¶ 345.)

The parties vigorously dispute how to characterize where Plaintiff and Dr. Calvi sat in the District hierarchy vis a vis one another. Plaintiff insists that he was not Dr. Calvi's direct supervisor and that they were not in the same chain of command. (Id. ¶¶ 346-351.) Defendants state that, as Deputy Superintendent, Plaintiff was the second highest ranked official in the District, that he had the authority to direct Dr. Calvi to do things, that she brought certain disciplinary matters to his attention, and that he approved a percentage in the District budget for Dr. Calvi's raises. (Defs. 56.1 Stmt. ¶¶ 26-40.) Although the Court is not able to resolve all of these factual disputes on this record, it is undisputed that Plaintiff was ranked higher in the District hierarchy than Dr. Calvi, and that, although his job involved the business, rather than instructional, aspects of District operations, he was also occasionally involved with supervision (and discipline) of instructional staff. (Id. ¶¶ 42-50.)

The affair between Plaintiff and Dr. Calvi was kept secret until June 2007. (Id. ¶ 110.) In fact, on two separate occasions -- once in January 2006, and once in early June 2007 -- Dr. Franks-Randall asked Plaintiff directly if he was having an affair with Dr. Calvi, and both times he denied it. (Id. ¶¶ 65-66, 103.) On June 4, 2007, Dr. Calvi informed Plaintiff's wife of the affair. (Id. ¶ 110.) On June 18, 2007, Plaintiff admitted to Dr. Franks-Randall that he had been having an affair with Dr. Calvi. (Id. ¶ 111.) He also described his efforts to end the relationship, as well as the alleged threats and harassment against him by Dr. Calvi during the dissolution of the relationship. (Pl.'s 56.1 Stmt. ¶¶ 380-82.) At a meeting held that week between Plaintiff, Dr. Franks-Randall, and an attorney for the District, the attorney stated that Dr. Calvi had the "trump card" because Plaintiff was her superior, and that Dr. Calvi could therefore sue the District and/or Plaintiff personally in connection with the affair. (Defs. 56.1 Stmt. ¶ 127; Pl.'s 56.1 Stmt.¶¶ 389-90.)

Later in June 2007, Plaintiff apologized to the Board and to Dr. Franks-Randall for engaging in the affair. (Defs. 56.1 Stmt. ¶ 132.) Initially, Dr. Franks-Randall and the Board expressed support for Plaintiff and told him that they would forgive him for the affair. (Id. ¶ 133.) Dr. Franks-Randall and members of the Board told Plaintiff that "everything was going to be ok" and "it was all going to go away." (Pl.'s 56.1 Stmt. ¶¶ 393.) Plaintiff received a 6% salary raise at the end of June 2007. (Defs. 56.1 Stmt. ¶¶ 134.)

On August 14, 2007, Dr. Calvi approached Dr. Franks-Randall and attorneys for the District to discuss Plaintiff's handling of an earlier sexual harassment complaint Dr. Calvi had made against another District employee, David Leis. In the course of that meeting, Dr. Calvi also raised a series of other allegations of misconduct by Plaintiff, including, inter alia, that it was Plaintiff who harassed her and made inappropriate comments to her during their relationship; that Plaintiff shared certain confidential information with her; and that he had asked her to perform a reading evaluation of his daughter. (Id. ¶¶ 135-60.) On August 20, 2007, Dr. Franks-Randall and counsel for the district met with Plaintiff to question him about these new allegations, but Plaintiff declined to answer questions and stated that he wanted to retain an attorney. (Id. ¶¶ 164-67.) The next day, Plaintiff, through his attorney, filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging "reverse sexual harassment" by Dr. Calvi, and alleging that the District "has been made aware of [Dr. Calvi's] predatory sexual behavior . . . and has failed to take remedial, much less prompt remedial action." *fn2 (Stern Dec. Ex. U, EEOC Charge, Filed August 21, 2007.) That same day, Plaintiff's counsel faxed a letter to Dr. Franks-Randall advising her that the EEOC complaint had been filed and stating "that it is a violation of federal law to take adverse employment action against anyone by reason of such a filing. Under these circumstances I suggest that no retaliation occur. For if it does, we will immediately file a federal civil rights action . . . ." (Stern Dec. Ex. V.) Thereafter, Plaintiff refused to answer further questions from Dr. Franks-Randall or counsel for the District in connection with the affair or Dr. Calvi's allegations. (Defs. 56.1 Stmt. ¶ 173.)

Dr. Franks-Randall brought Dr. Calvi's allegations to the Board, and recommended that the Board authorize an independent investigation into the allegations. (Id. ¶¶ 178-80.) The Board authorized the investigation, and, in September 2007, retained the law firm of Jackson Lewis LLP to conduct the investigation. (Id. ¶¶ 180, 182.) Michelle Phillips, Esq., of that firm, performed the investigation, during the course of which she interviewed nine witnesses, including Dr. Calvi, and reviewed documents and personnel files. (Id. ¶¶ 184-85.) Plaintiff refused to participate in the investigation. (Id. ¶¶ 202-05.)

Ms. Phillips presented the results of the investigation to the Board in October 2007. Based on the information provided by Dr. Calvi and others, Ms. Phillips determined that Plaintiff had engaged in certain improper conduct and recommended that the District proceed with dismissal charges pursuant to Section 3020-a.*fn3 (Id.¶¶ 214-29.)

On February 6, 2008, the Board found probable cause to file disciplinary charges against Plaintiff for (1) misconduct, (2) conduct unbecoming an administrator and (3) insubordination. (Id. ¶¶ 231, 234.) The misconduct charge was supported by fifteen specifications of acts of misconduct; the conduct unbecoming charge was supported by five specifications (all of which were also included as specifications under the misconduct charge); and the insubordination charge was supported by three specifications (all of which were also included as specifications under the misconduct charge). (Stern Dec. Ex. Z, Disciplinary Charges, Issued Feb. 6, 2008.) Ten days of hearings were held between August 5, 2008 and April 21, 2009 before a Hearing Officer. (Defs. 56.1 Stmt. ¶ 238.) Both parties were represented by counsel, submitted briefs, submitted evidence, and called witnesses. (Id. ¶¶ 239-244.) Plaintiff chose not to testify on his own behalf. (Id. ¶ 245.)

On November 8, 2009, the Hearing Officer issued a decision, finding that four of the fifteen specifications for the misconduct charge were substantial charges, and were substantiated by the evidence, while the other eleven were not substantial and/or not substantiated. (See Stern Dec. Ex. BB, Opinion and Award of Joel M. Douglas, Ph.D, Hearing Officer, In the Matter of Disciplinary Proceedings Between the Elmsford Union Free School District and Michael Senno, Respondent, SED File No: #10, 231 (hereinafter the "Decision") at 28.) He also dismissed the conduct unbecoming and insubordination charges as duplicative of the misconduct charge. (Decision ¶¶ 51-52.) Based on the charges that were substantiated, the Hearing Officer recommended that Plaintiff's employment be terminated. (Defs. 56.1 Stmt. ¶ 281.) OnDecember 2, 2009, the Board accepted that recommendation and terminated Plaintiff.*fn4 (Id. ¶ 282.)

Dr. Calvi was never the subject of disciplinary charges under Section 3020-a in connection with the events surrounding her affair with Plaintiff. (Pl.'s 56.1 Stmt. ¶ 541.) In the summer of 2008, she voluntarily resigned her tenured position as Assistant Principal, and was immediately rehired as the Director of Research and Development for the District under a three-year contract with the same salary and benefits as her previous job.*fn5 (Id. ¶¶ 543, 546.) In connection with her new employment contract, she withdrew an EEOC complaint that she had filed at some point in April or May of 2008.*fn6 (Bellantoni Declaration in Opposition to Defendants' Motion for Summary Judgment (hereinafter "Bellantoni Dec.") Ex. 2, Transcript of 3020-a Hearing, Dec. 16, 2008, at 56-57; Decision ¶ 57.)

3. Allegations of Misconduct

Plaintiff's claim is premised upon an allegation that he and Dr. Calvi were subject to disparate treatment based on gender discrimination and retaliation by the District for Plaintiff's filing of an EEOC complaint. This claim will turn on whether Plaintiff and Dr. Calvi were similarly situated "in all material respects," which, in turn, depends in part upon whether they engaged in misconduct that was "of comparable seriousness." Graham v. Long Island R.R., 230 F.3d 34, 39, 40 (2d Cir. 2000). Thus, the Court first reviews the alleged misconduct with which the District charged Plaintiff, and then reviews the alleged misconduct of Dr. Calvi.

a. Conduct For Which Plaintiff Was Found Culpable by the Hearing

Officer Plaintiff was found to have engaged in four acts of misconduct, which supported the Hearing Officer's recommendation of termination: (1) taking a "sick day" when in fact he was not incapacitated from work due to illness; (2) requesting that Dr. Calvi do a reading evaluation for his daughter, who was not a student in the District; (3) having sexual relations with Dr. Calvi in the school building; and (4) disclosing to Dr. Calvi confidential information obtained in an Executive Session of the Board, relating to negotiations with the District's Administrator's Union, of which Dr. Calvi was a member.

As to the first two charges, the Hearing Officer found that they were substantiated by the record, but were of minimal importance, and would not alone have supported Plaintiff's termination. (Decision ¶¶ 11, 50, 53.) The reading evaluation did not occur on school property or during school time, and Defendants acknowledge that there is no policy or rule in place prohibiting such an evaluation. (Pl.'s 56.1 Stmt. ¶ 403.) The Hearing Officer concluded that "[t]he only objection to the entire event appeared [to be] that the Superintendent believed it to be wrong." (Decision ¶ 41.)

Regarding the sick day, the Hearing Officer concluded that the charge was proven, but that there was "no support in the record that employees who take an unauthorized or unwarranted sick day should be terminated," and that there was no absence policy which requires a doctor's note or permission slip for missing a day of school. (Decision ¶ 39.)

At the same time, the Hearing Officer found that even in engaging in this more minor misconduct, Plaintiff "continuously displayed poor judgment" (Decision ¶ 41), and that these charges must be viewed in light of the "cumulative misconduct proven against him." (Decision ¶53.)

The Hearing Officer considered the other charges more serious, describing the accusation of sexual activities on school property as being "of great concern" (Decision ¶ 29), and concluding that Plaintiff's engaging in such conduct "destroyed his ability to operate effectively as Deputy Superintendent" and "violated the role model obligations expected of him."*fn7 (Decision¶ 60.)

The Hearing Officer concluded that by far the "most serious" charge was that Plaintiff revealed confidential Board information to Dr. Calvi during union negotiations. (Decision ¶ 40.) Plaintiff now denies this charge completely (Stern Dec. Ex. C, Transcript of Deposition of Michael Senno, at 201-09), but did not deny it at any point during the District's investigation or the 3020-a hearings. (Defs. 56.1 Stmt. ¶¶ 256-57.) Dr. Calvi stated that Plaintiff had disclosed confidential information from executive sessions regarding union negotiations, and had told her "what to ask for" during contract negotiations, including that she should seek a stipend because she had obtained her doctorate. (Id. ¶¶ 158-60.) Dr. Calvi also provided a copy of a contract proposal from the Administrator's Union with handwritten markups that appear to suggest what the union should seek in their negotiations. (Id. ¶¶ 189.) Witnesses familiar with Plaintiff's handwriting, including Dr. Franks-Randall and Ms. Lawrence, testified to their belief that Plaintiff had written the markups on the document. (Id. ¶¶ 157, 191, 219.)

The Hearing Officer found this charge substantiated, and noted that "[t]his type of behavior where management is telling labor what kind of proposal they should be making was viewed by the District as egregious and can independently serve as just cause for one's dismissal." (Decision ¶ 20.) The Hearing Officer also noted that "this type of misconduct goes to the very heart of the collective bargaining process." (Decision ¶ 23.) The Hearing Officer concluded that

[t]his clearly is a breach of trust and illustrative of remarkably poor judgment displayed by [Plaintiff]. [Plaintiff] was entrusted with confidential information and to use that knowledge in support of his lady friend in order to enable her to gain additional compensation also reflects a lack of loyalty. [Plaintiff's] dedication must be with the District and not to a woman who [he] is, or was having a personal relationship with. To put the "affair" ahead of his trusted position is indicative of an individual who has lost virtually any semblance of knowing what is correct behavior and what is not. (Decision ¶ 40.)

The Hearing Officer concluded, based upon the misconduct for which Plaintiff was found culpable that Plaintiff "has lost his ability to effectively function as a representative of the Elmsford School District. His lack of sound judgment in engaging in the proven misconduct has rendered him a liability to the District." (Decision ¶60.)

b. Conduct For Which Plaintiff Was Not Found Culpable

Plaintiff was also charged with the following specifications under the misconduct charge:(5) harassing Dr. Calvi through repeated phone calls, inappropriate comments, gifts, and by ignoring job-related requests for assistance; (6) treating Dr. Calvi differently by refusing to meet with her alone regarding District business; (7) and (8) lying to Dr. Franks-Randall about thenature of his relationship with Dr. Calvi on two separate occasions during the affair; (9) failing to recuse himself from meetings with Dr. Franks-Randall and Dr. Calvi regarding personal issues related to Dr. Calvi while the affair was ongoing; (10) making inappropriate comments to Dr. Calvi, including referring to her as a "whore," asking who she was sleeping with, and asking if she had "spread her legs for another man"; and (11) referring to Dr. Franks-Randall, who is African-American, with a racial epithet in a private conversation with Dr. Calvi. Plaintiff was also charged with a variety of misconduct connected to his handling of Dr. Calvi's complaints of sexual harassment by another District employee, David Leis, during the last months of the affair. Specifically, Plaintiff was charged with (12) failing to report and process a sexual harassment complaint regarding Mr. Leis as reported to him by Dr. Calvi on March 12, 2007; (13) failing to recuse himself from the investigation and determination of the complaint on June 12, 2007, notwithstanding the conflict of interest which had resulted from the dissolution of his personal relationship with Dr. Calvi; and (14) failing to properly investigate and process the complaint again on June 12, 2007. Finally, Plaintiff was charged with (15) filing an inaccurate report of an altercation between Plaintiff and Dr. Calvi that took place in the hallway of the school on June 15, 2007 (the "June 15 Hallway Incident"). Specifically, Plaintiff did not report that Dr. Calvi had used profanity during the argument (stemming from Plaintiff's alleged failure to investigate the Leis complaint to her satisfaction), which was overheard by students and other District employees. (Stern Dec. Ex. Z.)

For each of these charges, the Hearing Officer found that there was insufficient evidence to find Plaintiff culpable, and/or that the acts complained of were de minimis and inappropriate for discipline under 3020-a.

c. Dr. Calvi's Alleged Misconduct

Plaintiff makes a broad variety of allegations against Dr. Calvi, but the only conduct that is relevant for comparing the District's disciplinary action against her (or lack thereof) is conduct that was known to the District. Accordingly, the Court considers only that alleged conduct.

1) Dr. Calvi lied repeatedly to Dr. Franks-Randall.

Defendants concede that Dr. Franks-Randall believed that Dr. Calvi lied to her "repeatedly." (Pl.'s 56.1 Stmt. ¶ 414.) Defendants also concede that the Board was informed that Dr. Calvi lied to Dr. Franks-Randall on several occasions. (Id. ¶ 502.)

2) Dr. Calvi harassed and threatened Plaintiff during the affair.

Plaintiff alleges that, notwithstanding the charge that he harassed Dr. Calvi, it was Dr. Calvi who harassed him over the course of their relationship, including threatening his career, his family, and threatening to physically harm herself. Plaintiff states that he attempted to end the relationship in October 2006, but because of these alleged threats, he felt "blackmailed" into continuing the relationship through June 2007. However, much of this conduct was not brought to the attention of Defendants, and so could not have been the basis of any disciplinary action against Dr. Calvi. For example, Plaintiff claims that in March 2007, when he suggested that she stay in a relationship with a different man instead of Plaintiff, Dr. Calvi became angry and threw a District-owned cell phone at Plaintiff's head, shattering it against a car window. (Id. ¶¶ 370, 373.) However, it is not clear when (if at all) this incident was brought to the attention of Defendants.

Defendants were indisputably aware that Dr. Calvi had engaged in some of the same behavior with which Plaintiff was charged, particularly making repeated phone calls to Plaintiff in an alleged effort to keep the relationship going. Dr. Franks-Randall stated that this conduct was "inappropriate."*fn8 (Id. ¶¶ 512-13.) Defendants were also made aware that on one particular occasion, within earshot of another District employee, Dr. Calvi threatened Plaintiff, saying, "Your wife or your job . . ." (Id. ¶¶ 369, 519.)

At the meeting when Plaintiff confessed to the affair to Dr. Franks-Randall, he informed her of Dr. Calvi's threats, although it is not clear precisely what he told her at that time. (Id. ¶ 382.) During that conversation, Dr. Franks-Randall referred to Dr. Calvi's behavior as similar to the antagonist in the Paramount Pictures film, Fatal Attraction, wherein a scorned woman was "distressed, angry . . . calling after [the man]." (Id. ¶ 380.)

3) Dr. Calvi engaged in misconduct during the June 15 Hallway Incident.

Plaintiff suggests that Dr. Calvi should have been subject to more extensive disciplinary action in connection with the June 15 Hallway Incident.

Plaintiff cites to a memorandum written by two District employees who witnessed the incident, and to a letter from another District employee who also witnessed the incident. The memorandum, written at Dr. Franks-Randall's request, states that the staff members heard Dr. Calvi shouting at Plaintiff, using profanities and expletives, and that several students heard the argument and asked about the disturbance (Id. ¶¶ 422-27; Bellantoni Dec. Ex. 6.) The letter, sent to Dr. Franks-Randall and each member of the Board, describes the incident in similar terms.*fn9

(Pl.'s 56.1 Stmt. ¶¶ 428-30; Bellantoni Dec. Ex. 8.) Dr. Franks-Randall testified during the 3020-a hearing that she believed that Dr. Calvi had used profanity and had lied to her when she denied doing so, that Dr. Calvi was disturbing the students during the incident, and that Dr. Calvi's conduct had a negative impact on Dr. Calvi's image in the community. (Pl.'s 56.1 Stmt.¶¶ 431, 432, 435.)

As a result of the incident, Dr. Franks-Randall placed a disciplinary letter in Dr. Calvi's file stating that Dr. Calvi's behavior was "unconscionable," "offensive," and displayed "conduct unbecoming an administrator," and concluded: "While by far this is the worst display of your inability to control your emotions, it isn't the first time and I'm concerned that it won't be the last time." (Defs. 56.1 Stmt. ¶ 124; Pl.'s 56.1 Stmt. ¶¶ 434, 436.) Dr. ...


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