The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.
Plaintiff Ernest Jeter brought suit against Defendants alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., ("Title VII"); the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; 42 U.S.C. § 1981; 42 U.S.C. § 1983; 42 U.S.C. § 1985; 42 U.S.C. § 1986; and the New York State Human Rights Law. Plaintiff alleges that he was discriminated against on the basis of his race and retaliated against for engaging in protected activities. Plaintiff's claims under the New York Human Rights Law and 42 U.S.C. §§ 1985-86 were dismissed before discovery. (Mar. 8, 2008 Mem. & Order (Docket Entry # 17) at 8-11.) Following that ruling, the case proceeded to discovery. Discovery is now closed and Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on all remaining claims; Plaintiff cross-moves for summary judgment as to Defendants' liability for Plaintiff's Title VII retaliation claim, and opposes summary judgment on the remaining claims. For the reasons discussed below, Defendants' motion is granted in part and denied in part; Plaintiff's motion is denied.
At the outset, the court rules on certain issues relevant to determining the scope of the record it will consider when evaluating the cross-motions for summary judgment. Federal Rule of Civil Procedure 56(c)(2) permits a party to object to an opposing party's reliance on material that cannot be produced in a form that would be admissible in evidence. Therefore, the court resolves these objections first, before considering the parties' arguments on the substance of the cross-motions. Plaintiff objects to Defendants' use of his deposition (Pl. 56.1 Counter-Statement (Docket Entry # 93) ¶ 1 et al.), and Defendants object to Plaintiff's use of several documents that Plaintiff did not produce during discovery (Defs. Opp'n Mem. (Docket Entry # 102-1) at 8-10).
Plaintiff has objected to Defendants' use of Plaintiff's deposition because, Plaintiff contends, Plaintiff was not given the chance to view and correct the deposition after it was completed, pursuant to Federal Rule of Civil Procedure 30(d)(1). (See Pl. 56.1 Counter-Statement ¶ 1 et al.) The court previously directed Plaintiff to bring this dispute to the attention of Magistrate Judge Lois Bloom for resolution in the first instance. (See Dec. 16, 2011 Minute Order.) This Order was consistent with court rules, which refer non-dispositive pretrial matters in most civil cases to magistrate judges. See E.D.N.Y. Local Rule 72.2. There is no evidence that Plaintiff followed the court's Order; instead, he raises this issue before this court in his 56.1 counter-statement in the form of objections to Defendants' use of excerpts of the deposition. This pattern of ignoring the court's instructions, and avoiding the court's referral of discovery management and the resolution of discovery disputes (which are quintessential non-dispositive pretrial matters), is not acceptable. Consequently, the court rules that Plaintiff has forfeited any right to object to the alleged violation of Rule 30. See Fed. R. Civ. P. 16(f) ("On motion or on its own, the court may issue any just orders . . . , if a party or its attorney . . . fails to obey a scheduling or other pretrial order."). Where Plaintiff's objections to Defendants' Statement of Undisputed Material Facts are based solely on Plaintiff's forfeited Rule 30 argument, the court deems those facts unopposed.*fn1
As stated above, Defendants also object to some of the evidence Plaintiff offers in support of his cross-motion for summary judgment; the exhibits to which Defendants object are documents that Defendants claim Plaintiff did not produce during discovery. (See Defs. Opp'n Mem. at 8-9 (objecting to Pl. Exs. 2, 10, 13-14, 16, 18-21, & 24).) Defendants cite Federal Rule of Civil Procedure 37(c)(1), which prohibits a party from using information that it should have but failed to produce during discovery to supply evidence on a motion, unless the error was either substantially justified or harmless. Rule 37 is a discretionary remedy. Design Strategy, Inc. v. Davis, 469 F.3d 284, 297 (2d Cir. 2006). The considerations that guide the district court's exercise of discretion in whether or not to exclude challenged exhibits include "(1) the party's explanation for the failure to comply with the discovery [rule]; (2) the importance of the [precluded evidence]; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new [evidence]; and (4) the possibility of a continuance." Softel, Inc. v. Dragon Med. and Scientific Commc'ns, Inc., 118 F.3d 955, 961 (2d Cir. 1997); accord Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006). The court evaluates those four considerations in an order different than how they are listed in the quoted language.*fn2
The court notes first that the possibility of a continuance has not been raised. It was incumbent on Plaintiff, as the party seeking to rely on the challenged exhibits, to raise the possibility of reopening discovery and establishing a new schedule for summary judgment motions; because Plaintiff has not done so, the court does not consider this factor further. See Patterson, 440 F.3d at 118.
The court next considers Plaintiff's explanation. Plaintiff does not deny that he failed to produce the challenged exhibits. Plaintiff's response to Defendants' objection is that most of the objected-to documents were generated by New York City Department of Education ("DOE") employees and so Defendants had knowledge of the documents and violated their own discovery obligations by not producing them to Plaintiff. Plaintiff's argument, in essence, is that both parties committed discovery violations and consequently he should not be barred from relying on these exhibits. (See Pl. Reply Mem. at 6-7.) The court finds Plaintiff's explanation unpersuasive. The court first notes that it cannot say based on these facts that Defendants have committed an intentional discovery violation because the court is not in a position to assume that Defendants had knowledge of these documents-for example, the documents might not be authored by the DOE employees who Plaintiff claims authored them; DOE employees might have destroyed these documents before litigation; or, Defendants' counsel may have unintentionally overlooked some of these documents among the larger set of documents DOE employees gave them. Second, even if Defendants' conduct did violate the rules of discovery, the court fails to see how that should affect Plaintiff's own obligation to produce documents. Whatever Defendants' actions, Plaintiff had a clear path to ensure these documents were admissible: produce or disclose them, and submit requests for Defendants to admit the authenticity of the documents. See Fed. R. Civ. P. 36(a)(1)(B). More generally, the principles of civil discovery in American litigation call for each party to produce in good faith the documents that qualify for automatic disclosure or that are responsive to the other side's requests; if any party felt entitled to ignore its obligations because of a believed failure on the part of its opponent, the discovery regime might grind to a halt. In short, the court is not inclined to go against the maxim "two wrongs don't make a right." Plaintiff's proffered explanation does not provide a justifiable reason to admit the exhibits.
With respect to prejudice, Defendants allege that while some of Plaintiff's exhibits purport to be documents generated by DOE employees, Defendants have not had the opportunity to investigate the authenticity of those documents. (Defs. Opp'n Mem. at 9.) Indeed, it is plausible that Defendants might have substantial concerns about the authenticity of emails purportedly sent from one DOE employee to another that are now in the custody of Plaintiff but were not turned over by the DOE in discovery. (See, e.g., Feb. 18, 2005 Dreyfus Email (Glass Decl. Ex. 10 (Docket Entry # 95)).) Moreover, Defendants allege they were denied a chance to depose Plaintiff about these documents because of their tardy production. (Defs. Opp'n Mem. at 9.) Finally, as Defendants had already filed their motion for summary judgment before seeing these documents, Defendants were denied a chance to fashion their legal arguments to the material facts these documents illustrate (if any). The court believes that Defendants would likely suffer prejudice in all three ways described above, and so this consideration weighs in favor of excluding the challenged exhibits.
Further, Plaintiff's challenged exhibits, for the most part, are not important; indeed, for the most part they do not provide evidence of any material fact. The exceptions may be Exhibits 13 and 21, which relate to the issue of Defendants' alleged deduction of Plaintiff's leave days, and Exhibits 18, 19, and 20, which relate to Defendants' alleged acts preventing Plaintiff from being hired as a "Chapter 683" counselor. These exhibits may be relevant to Plaintiff's claim of disparate treatment; however, their importance must be discounted due to possible evidentiary objections, on grounds such as authenticity and hearsay, that may exclude them from consideration even absent Rule 37(c)(1). Thus, this factor weighs at most modestly in Plaintiff's favor. However, three of the four relevant considerations weigh against excusing Plaintiff's noncompliance, and therefore the court sustains Defendants' objection and will not consider Plaintiff's exhibits 2, 10, 13, 14, 16, 18, 19, 20, 21, and 24 in deciding the motions before it.
Finally, the court rules on Plaintiff's request to supplement his materials in support of his summary judgment motion. (Pl. Ltr. Mot. (Docket Entry # 113).) On consent of Defendants (Def. Resp. (Docket Entry # 114)), the court grants Plaintiff's motion to supplement his exhibits and will consider the testimony of Bonnie Brown in Plaintiff's administrative hearing (see Brown Hr'g Test. (Glass Decl. Ex. 26 (Docket # 113-1)).
Defendants and Plaintiff made the unusual (and unfortunate) decision to not present the court with a summary of the facts in their memoranda of law. (See Defs. Mem. at 2; Pl. Mem. at 2.) Therefore, the court constructs its account of the factual background of this suit primarily from the 56.1 statements and counter-statements the parties have submitted (Defs. 56.1 Statement (Docket Entry # 90); Pl. 56.1 Statement (Docket Entry # 100)) and, where appropriate, the decision of the Hearing Officer who presided over the DOE's unsuccessful attempt to terminate Plaintiff's employment (Hr'g Officer Decision (Chiu Decl. Ex. P (Docket Entry # 92-3))).*fn3
Plaintiff has been a guidance counselor employed by the DOE since 1994. (Jeter Dep. (Chiu Decl. Ex. C (Docket Entry # 92-1)) at 28:3-28:4.) The undisputed facts suggest an increasingly divisive relationship between Plaintiff and his employer. In a suit antecedent to this one, Plaintiff alleged that the DOE discriminated against him due to his race and medical disabilities through actions that the DOE took in the late 1990s and in the early 2000s, through 2003; United States District Judge David Trager granted summary judgment for the DOE in 2004. Jeter v. Bd. of Educ. of the City of NY, No. 99-cv-2537 (DGT) (CLP) (E.D.N.Y. Mar. 23, 2004). The instant suit, however, deals with events that occurred from 2004 through 2006.*fn4
As of the 2003-2004 school year, Plaintiff was a guidance counselor at P.S. 811K in District 75. In February 2004, Plaintiff and fellow school counselor Steven Lent were involved in a confrontation, during which Plaintiff made remarks of a sexual and derogatory nature toward Lent. *fn5 (Hr'g Officer Decision) at 64.) Plaintiff's remarks were provoked in part by Lent. (Id. at 64-65.) Lent made a complaint about the event to the New York City Police Department, at least in part on the advice of school Principal Rachel Henderson. (Lent Hr'g Test. (Glass Decl. Ex. 3 (Docket Entry # 95)) at 98:18-99:21.) Plaintiff in turn made a complaint to the DOE's Office of Employment Opportunity ("OEO"), claiming Lent had harassed him. (Jeter Dep. at 132:11-134:8; Mar. 8, 2004 OEO Compl. (Chiu Decl. Ex. CC (Docket Entry # 92-4)).) Lent was subsequently transferred to another school (Mar. 8, 2004 Henderson Email (Chiu Decl. Ex. DD (Docket Entry # 92-4))) and administration officials issued a non-disciplinary "counseling memorandum" about the incident (Mar. 10, 2004 Memorandum (Glass Decl. Ex. 4 (Docket Entry # 95))).
In May of 2004, Plaintiff received a letter from the school administration informing him that he was not keeping up with various administrative requirements-attendance cards, "Progress Notes" on his Related Service Attendance Cards, and keeping a daily log of his activities. (June 4, 2004 Levy Ltr. (Chiu Decl. Ex. W (Docket Entry # 92-4)).) After that letter, Plaintiff filed DHR I, alleging disparate treatment based on race. (DHR Compl. (Chiu Decl. Ex. EE (Docket Entry # 92-4)).)
In September 2004, a parent of two special education students who had been assigned to Plaintiff for counseling told Local Instructional Superintendent Fran Dreyfus that she believed Plaintiff was not providing counseling services to her children. (Serra Dep. (Chiu Decl. Ex. G. (Docket Entry # 2)) at 30:18-32:11, 34:8-14.) Dreyfus directed Assistant Principal Rossie DeMarco to review some of Plaintiff's records; Dreyfus reviewed some of Plaintiff's records as well. (Dreyfus Dep. (Chiu Decl. Ex. E (Docket Entry # 92-2)) at 58:6-59:8.) Dreyfus determined that Plaintiff had indicated he had held counseling sessions with students on dates that could not have been accurate, because the school was closed or the student was absent on those dates. (Id. at 64:3-65:10, 119:19-22.)
After Dreyfus's investigation, DOE issued two letters to Plaintiff's file about this record-keeping issue, in October and November of 2004. (Oct. 18, 2004 Dreyfus Ltr. (Chiu Decl. Ex. X (Docket Entry # 92-4)); Nov. 30, 2004 Dreyfus Ltr. (Chiu Decl. Ex. Y (Docket Entry # 92-4)).) Dreyfus also reported the parent's complaint to Defendant Office of the Special Commissioner of Investigation for New York City School District ("SCI") for investigation in October of 2004. (SCI Intake Form (Chiu Decl. Ex. J (Docket Entry # 92-2)).)
In January of 2005, Plaintiff complained to the DOE's OEO alleging racial discrimination. (Jan. 17, 2005 OEO Compl. (Chiu Decl. Ex. GG (Docket Entry # 94-4)).) In February of 2005, SCI "substantiated" the allegation that Plaintiff had failed to provide counseling and falsified time records; it recommended that the DOE seek Plaintiff's termination. (Loughran Ltr. (Chiu Decl. Ex. L (Docket Entry # 92-2)).) In April of 2005, Jeter filed a complaint of racial discrimination with the OEO. (Apr. 4, 2005 OEO Compl. (Chiu Decl. Ex. HH (Docket Entry # 92-4)).) Also in April of 2005, the DOE issued a letter to Jeter's file stating that he had falsely reported counseling service times. (Apr. 7, 2005 Dreyfus Ltr. (Chiu Decl. Ex. Z (Docket Entry # 92-4)).) In response, and in the same month, Plaintiff sent a letter to Mayor Michael Bloomberg of the City of New York, alleging that he was being discriminated against based on race. (Apr. 18, 2005 Jeter Email (Chiu Decl. Ex. II (Docket Entry # 92-4)).) Plaintiff filed another complaint with the OEO in June. (June 1, 2005 OEO Compl. (Chiu Decl. Ex. JJ (Docket Entry # 92-4)).) The same month, the DOE charged Plaintiff with disciplinary infractions and sought his dismissal. (June 6, 2005 Charges & Specifications (Chiu Decl. Ex. M (Docket Entry # 2)).) As of July of 2005, the DOE removed Plaintiff from his counseling position at PS 811K and reassigned him to the district office, pending the outcome of the termination proceeding; Plaintiff's base salary was unaffected. (June 23, 2005 Nathan Ltr. (Chiu Decl. Ex. AA (Docket Entry # 94-4)).) Plaintiff filed his second complaint with the New York State Division of Human Rights in August of 2005 ("DHR II"), alleging retaliation and disparate treatment. (DHR Compl. (Chiu Decl. Ex. KK (Docket Entry # 94-4)).)
One day in December of 2005, while Plaintiff was assigned to the district office, Plaintiff was stopped from entering the office before 8:00 a.m. by a security guard. In response, Plaintiff said, "I hate you motherfucking people. I hate you, Dr. Erber, and Bonnie Brown." (Hr'g Officer Decision at 93, 97.) (Susan Erber was at one time the District 75 Superintendent and Bonnie Brown was successively the District 75 Deputy Superintendent and Superintendent.) Several months later, a charge ...