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Thomas J. Hickey v. Anne C. Myers

February 10, 2012


The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge



Plaintiff Thomas Hickey, formally the Dean of Liberal Arts and Sciences at the State University of New York College of Agriculture & Technology at Cobleskill ("SUNY Cobleskill" or "the College"), alleges that he was retaliated against by Defendants in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d ("Title VI"), and in violation of 42 U.S.C. § 1981 ("§ 1981"), because he opposed racial discrimination in education.*fn1 Defendants in this action are SUNY Cobleskill, its former President, Donald P. Zingale, and its former Provost and Vice President of Academic Affairs, Anne C. Myers.

Defendants have moved for summary judgment seeking to dismiss the case in its entirety. See dkt. # 50 (Def. Motion); dkt. # 62 (Def. Reply). Plaintiff has opposed the motion. See dkt. # 60 (Pl. Opp.); dkt # 65 (Pl. Sur-Reply).


On a motion for summary judgment the Court must construe the properly disputed facts in the light most favorable to the non-moving party, see Scott v. Harris, 127 S. Ct. 1769, 1776 (2007), and may grant summary judgment only where "there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). That is, "[s]ummary judgment is appropriate only if, after drawing all permissible factual inferences in favor of the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." O'Hara v. National Union Fire Ins. Co. of Pittsburgh, PA, 642 F.3d 110, 116 (2d Cir. 2011)(citing Anemone v. Metro. Transp. Auth., 629 F.3d 97, 113 (2d Cir. 2011)).


The parties have presented a wealth of evidence on the instant motion. As is the case in many employment discrimination actions, the background facts and the inferences to be drawn therefrom are hotly contested. The material facts are as follows.

Plaintiff commenced his service as Dean of the College of Liberal Arts and Sciences at SUNY Cobleskill on July 1, 2006. At the time, there was a transitional leadership at the College. Defendant Myers served as Vice President of Academic Affairs and as Officer in Charge while a President was being sought.*fn2 Plaintiff asserts that he soon discovered that SUNY Cobleskill had a policy, instituted by Myers, of targeting for admission and admitting students whose academic backgrounds were such that they had no reasonable likelihood of graduating unless they were provided remedial education courses. He also learned that there were not adequate remedial courses available at the College, and that Myers had been involved in "dismantling" the formerly existing extensive remedial education program at the College. See Kerr Aff. ¶ 14.

As a possible motive for the policy of admitting academically unprepared students, Plaintiff points to a 1999 memorandum from Myers to the College faculty wherein she indicates that high school students who do not meet "our high school [grade point average ("GPA")]" standard are admitted "to make budget." The memorandum also indicates: "We also were not honest with [these students] up front, explaining what they would have to do in order to succeed here at Cobleskill." While Defendants contend that the memorandum was written to express Myers's concern for the academically low achieving students and as a call to the faculty to recognize and assist in rectifying the situation, Plaintiff contends it evinces Myers's and the College's purely financial motive in admitting these students. In support of his belief that Myers had no concern for helping the lower achieving students, Plaintiff points to a portion of the memorandum in which Myers indicates that more attention should be paid to the "better students" who actually have the ability to complete a baccalaureate program.

In further support of his belief that a financial motive was behind the College's admissions policy, Plaintiff points to a 2005 memorandum from Myers wherein she acknowledges that 30-35% of the entering freshman class was below the College's entry standard of a 75 high school GPA. While Myers also states in this memorandum that the College needs to "raise entrance admittance and programs need to be up to date and current," Plaintiff points out that Myers continued that the "Admissions Office is holding off on denials this year" and merely instructs the faculty to "support those students being accepted with low high school averages (in order to make budget) as best we can." Again, Plaintiff contends that the financial motive was evident in the policies that Myers supported.

Plaintiff also learned that Myers had lowered the threshold GPA for identifying "at risk students" in the Academic Review process, and, at one point, eliminated it entirely. This, Plaintiff contends, was done to allow otherwise academically ineligible students to remain in the College so that SUNY Cobleskill could continue collecting tuition from them even though they had no likelihood of graduating.

Plaintiff began opposing the College's policies in communications with Myers in 2007. See Def. L.R. 7.1 Statement of Material Facts ("SOMF") ¶ 198.*fn3 Notwithstanding these complaints, the policies continued. Plaintiff also raised his concerns with the faculty, asserting that something had to be done about the vast number of under-prepared students in the College and announced his intention to change the policies. Plaintiff and some faculty members also believed that the College's admission and retention policies disproportionately involved African-American students. Although Plaintiff had no statistical or other evidence supporting this position, he believed that African-American students with weak academic backgrounds had been targeted for admission and induced to enroll on the false pretense that they could earn a degree even though the College had no intention of ensuring such an outcome by providing the necessary remedial education classes. Further, Plaintiff believed that African-American students were disproportionately affected by the policy that lowered the College's review standard, and that the College did so only to allow it to collect tuition monies from these students for a longer period of time.

As early as 2007, Plaintiff began to raise his belief to Myers that there were racial implications in the College's admission and review policies. Def. SOMF ¶ 198. According to Plaintiff, this resulted in a philosophical disagreement between Hickey and Myers with Myers purportedly taking the position that the remedial programs available to all students ameliorated any racial impact of the College's policies.*fn4 Plaintiff also asserts that Myers, as Officer in Charge of the College, was indifferent to racist and bigoted actions by members of the student body occurring on campus.

During a meeting between Myers and the Department Chairs, Myers revealed her intention to use an upcoming evaluation of the College's Deans to obtain negative faculty reviews of Plaintiff so she could remove him as Dean and replace him with Dr. Susan Zimmerman, the professor who eventually replaced Plaintiff as Dean of the College of Liberal Arts and Sciences. See Hickey Aff., ¶¶ 63- 66; Fred Kowal Aff. ¶ 8; John Kowal Aff. ¶¶ 5-12. Myers stated that the reason she wanted to remove Plaintiff as Dean was because she did not believe that raising objections to the College's policies of admission and retention was part of a Dean's job and that, therefore, Plaintiff was not doing his job properly. See Fred Kowal Aff. ¶ 8.

Myers contends that she sought to replace Hickey as Dean because she received more written complaints about Plaintiff's performance as Dean than she did about any other Dean while she served as Officer in Charge. See Myer's Decl. ¶ 14. These complaints described Plaintiff as offensive, vengeful, intimidating, unprofessional, lacking in follow through or advocacy for his departments, and having a habit of shifting his work to the Department Chairs. Id. Plaintiff counters that there were actually very few complaints about him, that these few were without basis, that one was repudiated, and that Myers made no effort to investigate any of the complaints.

At the end of the 2007-2008 school year, Defendant Zingale was selected as President of SUNY Cobleskill. In May 2008, after Zingale assumed his duties as President but before he arrived on campus and began overseeing the College, Plaintiff called him hoping to enlist his support for Plaintiff's proposed changes at the College. Plaintiff advised Zingale of "the problem of under-prepared students," Hickey Aff. ¶ 36, and alerted Zingale to his concerns about the retention of unqualified students and its correlation with race. Def. SOMF ¶ 198. Plaintiff requested that the policies be discontinued, and that the College design remedial programs so at-risk African-American students could improve their potential to succeed academically. To Plaintiff, Zingale sounded unconcerned. Hickey Aff. ¶ 36. Plaintiff also spoke to Zingale about his future at SUNY Cobleskill and expressed his concern that Myers was contemplating his removal as Dean.

Myers also contacted Zingale before he began as President and related her belief that Hickey was not properly performing his duties as Dean. Myers shared her concerns about what she saw as Hickey's deficiencies, and indicated that Hickey's functioning as Dean was so lacking that she contemplated removing him from this position before Zingale arrived. Zingale advised Myers that he would prefer to observe Hickey's performance as Dean, and encouraged Myers to retain Hickey in the Dean's position so that Zingale could decide whether Hickey could continue to serve as Dean in Zingale's administration. The Deans' Evaluation did not take place as scheduled, apparently at the request of the faculty and in anticipation of Zingale arriving on campus at the start of the Fall 2008 semester.*fn5

At the start of the Fall 2008 semester, Myers issued a document called the "Master Schedule Guidelines" that, according to Plaintiff, "changed the way scheduling was done at SUNY Cobleskill." This change shifted control of scheduling decision from a collaborative determination between Department Chairs and the Deans to a unilateral determination by Myers. Plaintiff met with Department Chairs, some of who complained about the new procedure. Plaintiff conveyed these complaints to Myers. Myers was apparently already aware that some faculty members and Chairs objected to the change, but she did nothing to alter it.

On September 25, 2008, Social and Behavioral Sciences Department Chair Fred Kowal, who was under Hickey's supervision in the School of Liberal Arts and Sciences, sent an e-mail to Zingale making a number of complaints about faculty loads, course maxima, and reporting, among other things, indicating that some members of the faculty were confused and resentful by the scheduling procedure Myers instituted. Myers responded to the e-mail by indicating that the Deans had not done what she asked them to do with regard to the new procedure, and that she suspected that Hickey "handed this to the Chairs instead of taking control." Zingale responded to Kowal's e-mail the next day, noting, among other things, that for his School it was Dean Hickey who was charged with the responsibility for workload determinations, to determine course maxima, to ensure balanced programming, and to ensure clarity of faculty expectations. ...

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