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Robert I. Schwartz v. York College and Marcia Keizs

August 22, 2011


The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.


Plaintiff Robert I. Schwartz ("Plaintiff") brings this employment discrimination action against Defendants York College (a college subdivision of the City University of New York ("CUNY") referred to herein as "York")*fn1 and York President Marcia Keizs pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.("Title VII"); the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq.("ADEA"); 42 U.S.C. § 1981; New York State Human Rights Law, N.Y. Exec. Law §§ 296 et seq. ("NYSHRL"); and New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-107 et seq. ("NYCHRL"). Currently before the Court is Defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated below, Defendant's motion for summary judgment is GRANTED as all claims except the NYCHRL claim, which is DISMISSED WITHOUT PREJUDICE to renew in a state court forum.


Plaintiff is a Caucasian male, sixty years of age at the time the events at issue took place. (Am. ComPl.'s ¶ 13.) He alleges that York's 2005 decision not to hire him for the position of Director of Student Activities was the result of discrimination based on age, race, and gender. (Id.) He further alleges that, in retaliation for filing a March 2006 discrimination charge with the United States Equal Employment Opportunity Commission ("EEOC"), York did not select him for various other positions, denied him reappointment to adjunct positions, and declined to extend a federal grant funding his employment. (Am. ComPl.'s ¶¶ 54-55.)


York commenced a search in February 2005 to fill the vacant position of Director of Student Activities. (Def.'s 56.1 Stmt. ¶ 17.) To that end, it issued a position vacancy notice ("PVN") describing the duties and responsibilities of the position, the qualifications required for candidates, and set a closing date of March 2, 2005 for applications. (Id. ¶¶ 17-18.) The Director of Student Activities would, according to the PVN, be "responsible for providing the vision and leadership for student activities and student leadership at [York]." (Id. ¶ 19.)

In February 2005, Avis Hendrickson, Vice President for Student Development, convened a search committee ("Committee") made up of five York employees and three students, to screen the fifty-seven timely applications submitted for the position. (Id. ¶¶ 20-21.) The Committee chose eight applicants to interview, including Plaintiff.*fn3 (Id. ¶ 23.)

The Committee required each applicant selected for interviews to complete two written exercises: a critique of the York College Student Club and Organization Handbook to be submitted prior to the interview, and a letter to a hypothetical student group to be submitted immediately subsequent to the interview. (Id. ¶ 26.) After interviews on May 31 and June 1, 2005, the Committee evaluated the applicants by assigning each interviewee a certain number of points based on the two writing exercises and the applicant's responses to a common set of questions and scenarios. (Id. ¶¶ 27-28.) Using this point system, the Committee awarded the applicants the following scores: Plaintiff, 87.24 points; Linda McKinzie, 83.49 points; Herman Wright, 68.74 points;*fn4 and Jean Phelps, 66.99 points. (Id. ¶¶ 29-32.) Since those four individuals had the highest numerical scores, the Committee agreed, with Olga Dais, the Executive Director of Compliance Programs & Legal Affairs, to refer them for final interviews. (Id. ¶¶ 34-35.) Each applicant was asked to voluntarily complete a "Pre-Employment Self-Identification" card. (Id. ¶ 36.) Plaintiff self-identified as a fifty-nine year old Caucasian male; McKinzie as a forty-five year old African-American female; Wright as a fifty-four year old African-American male; and Phelps as a fifty-seven year old African-American female. (Id. ¶¶ 37-45.)

By June 2005, Hendrickson no longer served as Vice President for Student Development; thus, President Keizs -- a sixty year old Caucasian woman -- interviewed the finalist candidates. (Id. ¶¶ 46-47, 52.) At the request of the student government, Keizs invited Sheryl Purrier, an incoming African-American female student senator selected by her peers to participate in the interview process, to join her in the four interviews. (Id. ¶¶ 48-49.) The Committee did not provide Keizs with the applicants' numerical scores or their rankings. (Id. ¶ 50.)

The interviews were held on June 15, 2005. (Id. ¶ 51.) Keizs determined that Wright's application would not be given further consideration due to his apparent lack of preparedness for the interview. (Id. ¶ 53.) She asked Dr. Janis Jones, Dean for the Executive Office, to contact references provided by the remaining three applicants. (Id. ¶ 55.) She subsequently determined that Phelps and McKinzie were the most qualified finalists, based on their professional experiences and the requirements of the position, and asked Dean Jones, the interim Vice President for student development, to review their applications. (Id. ¶ 56-57, 63.) Both agreed Phelps was the best candidate, and Keizs submitted Phelps' name to the Chancellor's office for approval by the CUNY Board of Trustees. (Id. ¶ 65.) Phelps was appointed Director of Student Activities effective September 1, 2005. (Id. ¶ 66.)

Phelps was employed at York for nineteen years as Assistant to the Director of Student Activities and as Director of the Women's Center, where she coordinated activities for more than one hundred regular participants. (Id. ¶¶ 58-59.) She has a Master's degree, and worked as an adjunct faculty member and counselor. (Id. ¶ 58.) McKinzie was Coordinator of Student Life at Mercy College for five years, and has a Master's degree. (Id. ¶¶ 61-62.) Keizs determined these responsibilities to be more similar to those of the Director of Student Activities than the Plaintiff's employment, which she considered to be associated with counseling. (Id. ¶ 61.)

Plaintiff has a Master's degree in Counseling and Personnel Services, a Doctorate of Education in Guidance and Personnel Services, a Certification in Guidance from New York State, and a license in Psychology from the state of Massachusetts. (Pl.'s 56.1 Stmt. of Add'l Facts (Doc. No. 68) ¶¶ 1-2.) Plaintiff worked at Kingsborough Community College as a Counselor, Advisor, Director and Associate Professor intermittently for over thirty years.(Id. ¶ 3.) In 1999-2000, he worked as the Acting Director of Student Life, Counseling and Recreation at LaGuardia Community College.(Id. ¶ 4.)He worked at Baruch College as a Senior Internship Coordinator from 2000 to 2001. (Id. ¶ 3.) Finally, from 2002-2007 he served as the Administrative Director/Counselor of the McNair Scholars Program. (Id. ¶ 5.) He also held various adjunct positions throughout these years. (Id. ¶ 8.)

Plaintiff alleges that he was not hired despite being the most qualified candidate, and that the decision not to hire him was improperly motivated by race, age, and gender bias. On May 18, 2006, Plaintiff filed a discrimination charge with the United States Equal Employment Opportunity Commission ("EEOC") alleging improper discrimination based on race, gender, and age. (Def.'s 56.1 Stmt. ¶ 72; Def.'s Mot. for Summ. J., Ex. 1.) The EEOC issued a right to sue letter on or about October 5, 2006. (Def.'s 56.1 Stmt. ¶ 74.)


Plaintiff further alleges that York retaliated against him, denying him positions to which he applied as punishment for filing the EEOC charge. In April 2007, eleven months after receiving notice of Plaintiff's EEOC charge, York called for the submission of resumes for the position of Director of Academic Advising, to which Plaintiff timely applied. (Def.'s 56.1 Stmt. ¶¶ 75-76.) Due to a lack of qualified applicants the search was dubbed a "failed search" and no interviews were scheduled. (Id. ¶ 77.) In October 2007, York instituted a new search for the position. (Id. ¶ 78.) Plaintiff claims he applied for the position, though York denies receipt of his application. (Id. ¶ 79.)

In July 2007, fourteen months after receiving notice of Plaintiff's EEOC charge, York solicited resumes for the position of Director of Counseling, a position to which Plaintiff and forty-two other individuals applied. (Id. ¶¶ 80-81.) A five-member search committee screened these applicants, and decided to interview only the seven most qualified, omitting Plaintiff from the list of interviewees. (Id. ¶¶ 82-83.) Plaintiff did not know the qualifications of the successful applicant hired by York as Director of Counseling, nor does the record so indicate. (Id. ¶ 85.)

In May 2008, two years after receiving notice of Plaintiff's EEOC charge, York solicited resumes for the position of SEEK ("Search for Education, Elevation, and Knowledge") Counselor, a position calling for individuals with former counseling experience, to which Plaintiff applied. (Id. ¶¶ 86-87.) Though Plaintiff was chosen as one of six applicants selected for further interviews, he withdrew from the process of his own accord. (Id. ¶¶ 88-89.)

CUNY adjunct employees are appointed on a temporary basis for a fixed period of time, based on the need of the departments and CUNY's financial ability to compensate employees, with no expectation of reappointment. (Id. ¶¶ 90-92.) Decisions regarding adjunct appointments are made at the department level; the Human Resources office prepares a report, signed by Keizs, which the Chancellor and Board of Trustees must approve. (Id. ¶ 93.) However, Keizs' signature is the extent of her participation in this process. (Id. ¶ 93.) Plaintiff was appointed as an adjunct in several York departments from 2003 to 2006, most of which expired prior to York's receipt of notice of Plaintiff's EEOC charge. (Id. ¶¶ 94-103.) From January to June 2006, Plaintiff served as an adjunct in the Department of Admissions. (Id. ¶ 104.) Director of Admissions Diane Warmsley determined that full-time employees could perform Plaintiff's work and thus did not seek to re-appoint Plaintiff; at that time, she was unaware of Plaintiff's discrimination charge. (Id. ¶¶ 105-06.) From February to June 2006, and June to August 2006, Plaintiff served as an adjunct in the York College Counseling Center. (Id. ¶¶ 106-07.) A loss of funding thereafter led to the expiration without renewal of Plaintiff's adjunct position, as well as that of Maria Velez-Craan; at the time of expiration, the supervisor of the Center was not aware of Plaintiff's discrimination charge. (Id. ¶¶ 109-10.)

From 2002-2007, Plaintiff was employed as the part-time Administrative Director of the McNair Scholars Program at York College by the Research Foundation of the City University of New York, a private non-profit organization. (Id. ¶ 113.) The Program was funded with federal grant money, and Plaintiff's employment terminated in late 2007 when the federal government declined to renew the grant. (Id. ¶¶ 114-15.)

On December 26, 2006, Plaintiff commenced the instant action pro se, retaining counsel on December 18, 2007. He then, through counsel, filed an Amended Verified Complaint dated January 15, 2008. (See Doc. No. 13.) On March 31, 2009, this Court granted Defendants' motion to dismiss several of the claims alleged in the Amended Verified Complaint. (See Doc. No. 36.) Several claims remain in this action: (1) Title VII claims against CUNY for race and gender discrimination and retaliation; (2) an ADEA claim against Keizs in her official capacity for prospective injunctive relief; (3) claims pursuant to NYHRL against president Keizs in her individual capacity for monetary relief for race, gender, and age discrimination, and retaliation; and (4) claims under NYCHRL against president Keizs in her individual capacity for monetary relief for race, gender, and age discrimination, and retaliation.*fn5 Defendants now move for summary judgment on these remaining claims. (See Doc. No. 58.)


Summary judgment is appropriate when the pleadings, depositions, interrogatories, admissions, and affidavits demonstrate that there are no genuine issues of material fact in dispute and that one party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248 (1986).

In deciding a summary judgment motion, a district court must draw all reasonable inferences in favor of the nonmoving party. See id. at 249 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)); Castle Rock Entm't, Inc. v. Carol Publ'g Grp., Inc., 150 F.3d 132, 137 (2d Cir. 1998). The court must not "weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2007) (quoting Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996)). Any evidence in the record of any material fact from which an inference could be drawn in favor of the non-moving party precludes summary judgment. See Castle Rock Entm't, 150 F.3d at 137.

Once the movant has demonstrated that no genuine issue of material fact exists, then "the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)) (emphasis in original). However, there must exist more than mere "metaphysical doubt as to the material facts" to defeat a summary judgment motion. Id. at 586. Instead, the non-moving party must present "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson,477 U.S. at 256. Only disputes over material facts ...

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