The opinion of the court was delivered by: Hurley, Senior District Judge:
Plaintiff Kwame Boakye-Yiadom ("plaintiff" or "Boakye-Yiadom") commenced this action against defendants Hempstead Union Free School District (the "School District"), Joseph Laria, Charles Renfroe, Joann Simmons, Gladys Rivera, Sharleen Reshard, Patricia Wright, Charles Planz, Luz Valentine, and Kenneth Stubbolo (collectively, the "defendants"), alleging that the defendants violated his constitutional rights, pursuant to 42 U.S.C. §§ 1981, 1983 and 1985(3), and his rights under the New York State Human Rights Law ("NYHRL"), pursuant to N.Y. EXEC. LAW § 296, when they discriminated against him and subjected him to a hostile work environment due to his race, skin color, and national origin. Plaintiff also alleges that the School District violated his rights under Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e, et seq. when it retaliated against him for engaging in protected activity. Presently before the Court is defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 seeking dismissal of plaintiff's Complaint in its entirety. For the reasons that follow, defendants' motion for summary judgment is GRANTED in part and DENIED in part.
The material facts, drawn from the Complaint, the parties' Local Civil Rule 56.1 Statements, and the annexed exhibits are undisputed unless otherwise noted.
Boakye-Yiadom is a Black male of Ghanaian-West African national origin who speaks with a heavy accent. He began his employment with the School District on April 3, 2006 as an Assistant Superintendent for Business and Operations. In this capacity, plaintiff was directly responsible for the business affairs of the School District and the administration and supervision of facilities planning. These responsibilities included performing tasks such as administering the budget, controlling the day-to-day expenditures of the district as well as preparing and submitting fiscal and facilities plans and reports to the New York State Education Department ("SED"). (Defs.' 56.1 ¶ 9 & Ex. 5.) Plaintiff reported directly to the School District Superintendent. At the time of his hire up through July 2008, the Superintendent was non-party Nathaniel Clay. Plaintiff received a positive annual evaluation for each of the three school years that he worked under Clay. (Pl.'s Exs. 1-4.)
After Clay retired, Joseph Laria ("Laria") was appointed to the position of Interim Superintendent on July 14, 2008, and became Boakye-Yiadom's supervisor. The relationship between Laria and plaintiff was strained from the start. Plaintiff contends that on Laria's first day, he threatened to terminate him. (Defs.' Ex. 33.) Then, upon Laria's recommendation, the School District's Board of Education (the "Board") appointed defendant Kenneth Stubbolo ("Stubbolo") as Fiscal Oversight Management Advisor, effective August 25, 2008.*fn1 (Defs.' Ex. 24.) In this capacity Stubbolo served as an agent to the Board and Superintendent and had "administrative authority" over the business office administrators, which included plaintiff. In addition, the business office administrators had to report to the Superintendent through Stubbolo. (Defs.' 56.1 ¶ 118 & Ex. 34.) Plaintiff also asserts that sometime in August or September 2008 Laria told him: "With your accent, who is going to make you a superintendent?" (Defs.' Ex. 10 ("Boakye-Yiadom Dep. II") at 271.) Laria denies ever making such a remark and instead claims that he told the plaintiff that he could not understand him at one point during the conversation. (Laria Decl. ¶ 50.)
Based on numerous alleged incidents of race, color, and national
origin discrimination, Boakye-Yiadom filed a Charge of Discrimination
with the EEOC ("EEOC Charge") on September 26, 2008.*fn2
(Defs.' 56.1 ¶ 265 & Ex. 94.) On that same day, Laria issued
plaintiff a negative first quarter performance review addressing
twenty-one unsatisfactory performance areas.*fn3
(Defs.' Ex. 75.) Boakye-Yiadom was the only employee to receive a
first quarter performance review from Laria. In a memorandum dated
October 6, 2008, Plaintiff disputed the negative performance review.
(Id., Ex. 76.)
On October 17, 2008 Laria told Boakye-Yiadom that he was recommending to the Board that he be terminated. Laria also placed plaintiff on administrative reassignment to his home until November 20, 2008 -- the date the Board would meet and vote on Laria's recommendation to terminate the plaintiff. (Defs.' 56.1 ¶¶ 257-58 & Ex. 92.) On November 20, the Board approved Laria's recommendation to terminate plaintiff's employment and plaintiff's employment ended on December 22, 2008. (Defs.' 56.1 ¶ 262.) Defendants Charles Renfroe, Joann Simmons, Gladys Rivera, and Sharleen Reshard served on the Board at the time plaintiff's termination was approved.
I. Summary Judgment Standard
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates the absence of a genuine issue of material fact and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996).
To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present more than a "scintilla of evidence," Del. & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252), or "some metaphysical doubt as to the material facts," Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)), and cannot rely on the allegations in his or her pleadings, on conclusory statements, or on "mere assertions that affidavits supporting the motion are not credible," Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (citations omitted).
The district court, in considering a summary judgment motion, must also be mindful of the underlying burdens of proof because "the evidentiary burdens that the respective parties will bear at trial guide district courts in their determination of summary judgment motions." Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). Where the non-moving party will bear the ultimate burden of proof on an issue at trial, "the moving party's burden under Rule 56 will be satisfied if he can point to an absence of evidence to support an essential element of the" non-movant's claim. Id. at 210-11. Where a movant without the underlying burden of proof offers evidence that the non-movant has failed to present sufficient evidence in support of his claim, the burden shifts to the non-movant to offer "persuasive evidence that his claim is not 'implausible.'" Id. at 211 (citing Matsushita, 475 U.S. at 587).
Summary judgment is generally inappropriate where questions of the defendant's state of mind are at issue, see Gelb v. Bd. of Elections of N.Y.C., 224 F.3d 149, 157 (2d. Cir. 2000), and should thus be granted with caution in employment discrimination cases, see Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994); Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000). Nonetheless, "summary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 40 (2d Cir. 1994). "The summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). "[T]he salutary purposes of summary judgment -- avoiding protracted, expensive and harassing trials -- apply no less to discrimination cases than to commercial or other areas of litigation." Id. "When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo, 22 F.3d at 1224.
II. Discrimination Claims*fn4
Claims of employment discrimination, whether brought under Title VII, Section 1981, or Section 1983, are all analyzed under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491 (2d Cir. 2010); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 123 (2d Cir. 2004). The same is true for claims brought under the NYHRL. See Lu v. Chase Inv. Servs. Corp., 412 F. App'x 413, 418 (2d Cir. 2011); Chacko v. DynAir Servs., Inc., 2001 WL 930774, at *7 (E.D.N.Y. June 14, 2001).
Under this burden shifting test, a plaintiff must first establish a prima facie case of discrimination. See Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008). To satisfy this burden a plaintiff must show that "(1) he is a member of a protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment action; and (4) the adverse employment action took place under circumstances giving rise to an inference of discrimination." Ruiz, 609 F.3d at 491-92. The burden of establishing a prima facie case of employment discrimination has been described as "minimal." Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001). If the plaintiff establishes a prima facie case, the burden shifts to the defendant to offer a legitimate nondiscriminatory reason for the employment decision. Ruiz,609 F.3d at 492. This burden is one of production, not persuasion, and it involves no credibility assessment. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000); Wentworth v. Hedson, 493 F. Supp. 2d 559, 569 (E.D.N.Y. 2007). If such a showing is made, the burden returns to the plaintiff to show by a preponderance of the evidence that the reasons proffered by the defendant were not its true reasons but were a pretext for actual discrimination. See Reeves, 530 U.S. at 143; Ruiz,609 F.3d at 492.
Defendants challenge plaintiff's ability to establish the fourth element of his prima facie case, namely that plaintiff's termination took place under circumstances giving rise to an inference of discrimination.*fn5 In particular, defendants argue that plaintiff's discrimination claims fail as a matter of law since Boakye-Yiadom has failed to identify any similarly situated employees who were treated differently than he was.
To raise an inference of discrimination by disparate treatment evidence, meaning that a plaintiff employee was treated less favorably than similarly situated employees outside his protected group, such evidence must demonstrate "that [his] co-employees were subject to the same performance evaluation and discipline standards" and that they were not disciplined despite engaging in comparable conduct." Graham, 230 F.3d at 40; see also Mandell v. Cnty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003) ("A plaintiff relying on disparate treatment evidence must show she was similarly situated in all material respects to the individuals with whom she seeks to compare herself.") (internal quotation marks omitted).
Plaintiff identifies "the high level administrators within the Superintendent's cabinet" as the similarly situated employees in this case. In addition to plaintiff (who served as Assistant Superintendent of Business and Operations), the Superintendent's cabinet consisted of the following administrators: (1) the Assistant Superintendent for Elementary Education; (2) the Assistant Superintendent for Secondary Curriculum; (3) the Assistant Superintendent for Funded Programs, Compliance and School Improvement; and (4) the Assistant Superintendent/Director for Personnel. (Pl.'s Ex. 23.) Other than listing job titles, Plaintiff not only fails to identify who these individuals are but never proffers any evidence as to their skin color, race and/or national origin.*fn6 Such failures is a basis for denial at the outset. See Goldman v. Admin. for Children's Servs., 2007 WL 1552397, at *7 (S.D.N.Y. May 29, 2007) (finding that "'sweeping allegations,' in which plaintiff cannot even identify, and presents no evidence of, the race or national origin of alleged comparators, can not satisfy the similarly situated test").
Even assuming that the cabinet administrators differed in skin color, race and/or national origin from the plaintiff, Boakye-Yaidom fails to establish that these individuals were similarly situated to him. Other than mentioning in passing that the other cabinet administrators also reported to and were evaluated by the Superintendent, plaintiff does not show that the cabinet administrators engaged in "comparable conduct." See Graham, 230 F.3d at 40 ("[C]omparing conduct requires a reasonably close resemblance of the facts and circumstances of plaintiff's and comparator's cases . . . ."). Plaintiff attempts to show comparable conduct by first claiming that creating the annual budget for the School District was a collective process for the whole cabinet and not solely his responsibility. While there is some evidence to support the fact that cabinet members would assist plaintiff with the budget as it related to their particular departments (see Pl.'s Ex. 5 ("Thompson Dep.") at 14-15), the plaintiff does not point to any record evidence which supports his contention that the ultimate responsibility of administering the budget was shared among the cabinet administrators. Therefore, the role of the other cabinet administrators in connection with the budget cannot be said to be comparable to that of the plaintiff. And, to the extent that only plaintiff was held accountable for budgetary deficiencies, this fact provides no proof that he was treated less favorably than others.
Likewise, plaintiff's argument that the content of an independent audit report which was completed for the 2006-2007 school year somehow evidences comparable conduct between the cabinet administrators and the plaintiff is without merit. The mere fact that an audit identified deficiencies for which other cabinet administrators were responsible does not bring plaintiff's conduct any closer to that of the other cabinet administrators. Each deficiency identified in the audit involved a unique set of facts and circumstances not comparable to the plaintiff. Since there is no basis to find the cabinet administrators to be similarly situated, plaintiff cannot establish his prima facie case of discrimination based on disparate treatment evidence.
While defendants would have this court end its analysis here, disparate treatment evidence is not the only way a prima facie case of discrimination can be established for all of plaintiff's claims. Although Plaintiff's failure in coming forward with similarly situated individuals is fatal to his Equal Protection claim under Section 1983,*fn7 disparate treatment evidence is just one "recognized method of raising an inference of discrimination for the purposes of making out a prima facie case" under Title VII or the NYHRL. Mandell v. Cnty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003). In this case, plaintiff has asserted a discrimination claim pursuant to NYHRL.*fn8 (Compl. ¶¶ 42-43.) Therefore, Boakye-Yaidom may come forward with other evidence showing that his termination took place under circumstances giving rise to an inference of discrimination. With regard to plaintiff's discrimination claims based on race and skin color, he offers no such evidence.*fn9 Therefore, plaintiff has failed to make out a prima facie case of race and/or skin color discrimination and those claims must be dismissed.*fn10
Narrowing the balance of this analysis to plaintiff's claims of employment discrimination on the basis of national origin, the Court finds that plaintiff has carried his de minimus burden in making out a prima facie case. Boakye-Yiadom argues that the comments made about his accent, including the Superintendent's remark "With your accent, who is going to make you a superintendent," coupled with the negative performance review he received from that same Superintendent not only lends support to an inference of discrimination but also evidences discriminatory animus for purposes of showing pretext. While the question of whether such facts would satisfy plaintiff's ultimate burden will be discussed in greater detail below, the Court ...