The opinion of the court was delivered by: Denise Cote, District Judge:
Plaintiff Daniel Smith ("Smith") has sued the Board of Education of
the City School District of the City of New York ("BOE")*fn1
and others, alleging principally that the defendants had
initiated disciplinary proceedings against him in retaliation
for his complaints that there was a disparity in funding between
girls' and boys' sports programs at DeWitt Clinton High School
("DeWitt"). Smith had served as coach of the DeWitt varsity girls'
softball team. Defendants moved for summary judgment. For the
following reasons, the motion is granted.
The following facts are undisputed unless otherwise indicated. Smith began his employment with the BOE on October 31, 1985. In September 1991, he began serving as a physical education teacher at DeWitt. During the 1999-2000 school year, Smith also began serving as the head coach of the varsity girls' softball team and an assistant coach of the varsity boys' football team.
1. September 1999 Dispute with Referee In September 1999, a football referee accused Smith of attempting to prevent the referee from entering the field, poking his finger in the referee's chest, and spitting on the referee. On September 23, following an investigation of the incident, defendant Geraldine Ambrosio ("Ambrosio"), DeWitt's Principal, suspended Smith from his duties as assistant football coach for the remainder of the season. Smith filed a grievance challenging the suspension and the unsatisfactory rating he received for his work that season as an assistant football coach, but later withdrew the grievance.
Ambrosio did not choose Smith to serve as a football coach the following season, the year 2000-2001. Smith challenged that decision through the grievance process, but an arbitrator denied the grievance.
2. Complaints About Disparity in Funding of Athletics Programs In his complaint Smith asserts that "[d]uring the 2001-02 school year" he complained orally and in writing to Ambrosio and defendant Ed Gardella ("Gardella"), an Assistant Principal at DeWitt, that the women's softball program received disproportionately less money than the boys' sports programs. In his opposition to the motion for summary judgment, Smith adds that he "spoke out publicly against the disparate treatment of and funding for the women's softball program compared to the treatment and funding for the men's softball program."
3. 2002 Incidents On May 16, 2002, the BOE issued Smith an unsatisfactory rating based on classroom observation by Gardella. Smith asserts that during the summer of 2002, the BOE denied him a line of duty injury status.
4. Denial of Coaching Opportunity in 2005 In September 2003, Smith was appointed to work as a physical education teacher at John F. Kennedy High School, and in September 2005, at Grace Dodge Career and Technical High School ("Grace Dodge"). Throughout this time, however, he continued to serve as the varsity girls' softball coach at DeWitt. Smith asserts that during the 2005 football season the BOE blocked him from being hired as an assistant football coach at DeWitt.
5. June 2006 Observation of Class On June 5, 2006, defendant Patricia Squire ("Squire"), an Assistant Principal at Grace Dodge, observed Smith's physical education class and issued Smith an unsatisfactory lesson rating for arriving late to class and failing to provide bell-to-bell instruction. Within days of issuing that rating to Smith and while observing another gym teacher, Squire noticed that Smith spent a large portion of the class time conversing with another teacher, that Smith's students were not involved in instruction, and that several students who were not properly prepared were playing basketball. On June 15, Squire sent a letter to Smith describing those observations. In the fall of 2006, Ambrosio selected Smith to serve as the junior varsity boys' football coach at DeWitt.
6. March 2007 Incident with Female Student Smith does not dispute that in early March 2007, a female student reported to an Assistant Principal at Grace Dodge that Smith had told her to sit on his lap and had winked at her, or that another student corroborated the complaint. The student's handwritten report of March 14, 2007, reads as follows:
On Friday March 9, 2007 I was in my gym class and my teacher Mr. Smith came up to me and asked me if I was going to sit with him. I then asked do you want me to sit with you. Because I was sitting with all my friend [sic]. He then said no I want you to sit on me, on my lap. After that I just stood in shock and didn't say anything. Then my friend called him a pevert [sic]. After all this happened [sic] he kept winking at me.
The Assistant Principal promptly informed defendant Craig Shapiro ("Shapiro"), Grace Dodge's Principal, who referred the matter to the Office of the Special Commissioner of Investigation for the New York City School District ("SCI"). Smith does not dispute that Shapiro had a duty to report such allegations of sexual misconduct or that Shapiro promptly instructed the Assistant Principal to make a report to SCI.*fn2
7. Audit of Per Session Submissions Also during March 2007, Ambrosio was conducting a periodic review of "per session" submissions.*fn3 According to Ambrosio, she chose to review Smith's per session submission because Smith was at that time coaching at DeWitt but teaching at Grace Dodge. Grace Dodge provided DeWitt with a list of 14 days during the 2006-2007 school year when Smith had been absent from his regular teaching assignment. Ambrosio compared the dates of absences to the dates of Smith's submissions for payment of per session compensation and found three days when Smith had been absent from his regular teaching assignment for medical reasons but requested pay for per session work. One of the three days was September 14, 2006. On that day, Smith took a sick day from his day teaching job at Grace Dodge but certified that he worked two hours of per session time as junior varsity football coach at DeWitt.
Smith does not deny that the BOE records indicate such a discrepancy. Under the prevailing regulations governing the conduct of New York City public school employees, an employee may not take paid sick leave from a day assignment but report for per session work after regular school hours. See New York City Public Schools, Chancellor's Regulation C-175 ¶ 10(i) ("If an employee is absent because of illness from a regular day school assignment and reports for work the same day in an afternoon or evening per session activity, the day school absence may not be charged to cumulative absence reserve and a salary deduction must be made."). Ambrosio referred the matter to SCI.
8. Two Daily News Articles Two articles in The New York Daily News ("Daily News"), one appearing on April 24, 2007, and another appearing on April 22, 2008, quote Smith complaining about the disparity in the funding of boys' and girls' athletics at DeWitt.*fn4 In the 2007 article, Smith was quoted extensively on the difficulties the DeWitt women's softball team had experienced in securing funds and equipment from the school administration, in contrast to much larger expenditures on the men's baseball team. The 2008 article discussed disciplinary ...