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Cherry v. Byram Hills Central School District

United States District Court, Second Circuit

June 14, 2013



EDGARDO RAMOS, District Judge.

Plaintiff Sherwin Cherry ("Plaintiff" or "Cherry"), appearing pro se, brings this action against Byram Hills Central School District ("Defendant" or the "District") pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, alleging discrimination based on his race, color and national origin, and retaliation as a result of the filing of various complaints against both the District and a coworker. Complaint ("Compl.") (Doc. 2.) Pending before the Court is Defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56. (Doc. 25.) For the reasons set forth below, Defendant's motion for summary judgment is GRANTED.

I. Local Rule 56.1 and Pro Se Litigants

Under Rule 56.1 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York ("Local Rule 56.1"), a party moving for summary judgment pursuant to Fed.R.Civ.P. 56 must submit a "separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried." Local R. 56.1(a). In answering a motion for summary judgment, litigants in this District are required to specifically respond to the assertion of each purported undisputed fact by the movant and, if controverting any such fact, to support its position by citing to admissible evidence in the record. Local Rule 56.1(b), (d); see also Fed.R.Civ.P. 56(c) (requiring reliance on admissible evidence in the record in supporting or controverting a purported material fact). If the moving party seeks summary judgment against a pro se litigant, the movant is also required to notify the pro se litigant of the requirements of Fed.R.Civ.P. 56 and Local Rule 56.1, as well as provide the pro se litigant with full texts of both rules. Local R. 56.2. Once served with a statement pursuant to Local Rule 56.2, "[ p ] ro se litigants are then not excused from meeting the requirements of Local Rule 56.1." Wali v. One Source Co., 678 F.Supp.2d 170, 178 (S.D.N.Y. 2009) (citing Vt. Teddy Bear Co. v. 1-800-BEARGRAM Co., 373 F.3d 241, 246 (2d Cir. 2004)). Each factual statement set forth in the moving party's Local Rule 56.1 statement "will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party." Local R. 56.1(c); see also T.Y. v. N.Y. City Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009) ("A nonmoving party's failure to respond to a Rule 56.1 statement permits the court to conclude that the facts asserted in the statement are uncontested and admissible."), cert. denied, 130 S.Ct. 3277 (2010).

In the instant case, Defendant submitted a Local Rule 56.1 Statement and provided Plaintiff with notice of his obligations, however, it did not attach to the notice the full text of Fed.R.Civ.P. 56 and Local Rule 56.1, as required by Local Rule 56.2. (Docs. 26, 29.) Plaintiff failed to submit an appropriate response to Defendant's motion and, instead, filed only a copy of the Complaint with several documents attached. As the Second Circuit has made clear, however, "special solicitude should be afforded pro se litigants generally, when confronted with motions for summary judgment, " Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988) (quoting Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988)), and "where a pro se plaintiff fails to submit a proper [Local] Rule 56.1 statement in opposition to a summary judgment motion, the Court retains some discretion to consider the substance of the plaintiff's arguments, where actually supported by evidentiary submissions." Wali, 678 F.Supp.2d at 178 (citing Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001)). Moreover, courts are to read a pro se litigant's submissions "liberally and interpret them to raise the strongest arguments that they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).

Therefore, this Court has endeavored to discern from the record if there is any evidentiary support for the assertions contained in the Complaint and the documents attached thereto, and to determine if there are any other material issues of fact based on the evidence in the record. Geldzahler v. N.Y. Med. Coll., 746 F.Supp.2d 618, 620 n.1 (S.D.N.Y. 2010). The Court has considered the present motion in light of the entirety of the record to afford Plaintiff the special solicitude to which he is entitled. Burke v. Royal Ins. Co., 39 F.Supp.2d 251, 257 (E.D.N.Y. 1999).

II. Statement of Facts

The following facts are undisputed except where otherwise noted.

Plaintiff is of Native American race and national origin and is Black. Def.'s 56.1 Stmt. ¶ 1.[1] He was hired by the School District as a full-time "school monitor" effective September 5, 2006, and was initially assigned to work at the high school. Id. ¶¶ 2-3. At the time Plaintiff began working as a school monitor, his supervisor was Dr. William Donohue, the principal of the high school. Id. ¶ 4. In May 2008, Plaintiff made a complaint to Dr. Donohue about Ed Felix, a fellow school monitor at the high school, who Plaintiff claimed was harassing him. Ex. I.[2] On September 14, 2008, Plaintiff renewed that complaint, noting that since his initial complaint, "Mr. Felix has subjected [him] to his ongoing retaliation." Ex. J.

In response to Plaintiff's May 2008 complaint, Dr. Donohue claims that he investigated Plaintiff's allegations by meeting with Plaintiff on May 14, 2008 and with Mr. Felix on May 15, 2008. Ex. D (Donohue Aff.) ¶¶ 8-9. Following Dr. Donohue's investigation, he met with Plaintiff to ask if he had any further problems with Mr. Felix, to which Plaintiff responded, "so far, so good." Id. ¶ 10. Dr. Donohue again met with Plaintiff in June 2008, and Plaintiff stated at that time that things were "OK" with Mr. Felix. Id. ¶ 11; see also Exs. K at 10; L at 1. Plaintiff, on the other hand, stated in his September 2008 complaint that his earlier complaint "fell on dea[f] ears" and that the District continued to "allow[] such inappropriate behavior by Mr. Ed Felix, " as well as "cover-up his unprofessional behavior." Ex. J. Additionally, Plaintiff testified at his deposition that the District "ignored [his complaint] to a certain degree" and "swept [it] under the rug." Ex. C (Cherry Depo. Tr.) at 34.

After Plaintiff renewed his allegations against Mr. Felix in September 2008, his claims were investigated by the District Human Rights Coordinator, Judith Hirschhorn, with the assistance of the school's attorney, Jeffrey Kehl. See Exs. K; L; M. The investigation included interviews of twelve witnesses, including Plaintiff and Mr. Felix.[3] Ex. K. On October 30, 2008, Ms. Hirschorn and Mr. Kehl issued a memorandum summarizing their investigation to the Superintendent of Schools, Jacquelyn Taylor, and thereafter, issued a supplemental memorandum, dated November 5, 2008. Id. Following the investigation of Plaintiff's allegations, Dr. Taylor wrote to Plaintiff on November 12, 2008 to inform him that the investigation concluded that he had not been the victim of harassment or retaliation, and that the District responded appropriately to his initial May 2008 complaint. Ex. L. The following day, Dr. Taylor met with Plaintiff to discuss the results of the investigation. Ex. M. On November 24, 2008, Dr. Taylor issued a letter to Plaintiff memorializing their November 13, 2008 meeting and summarizing the contents of that meeting.[4] Id.

On December 15, 2008, Plaintiff filed a Verified Complaint with the New York State Division of Human Rights ("Division of Human Rights"), charging the District with discrimination relating to employment because of race/color and also charging retaliation. Ex. O. Plaintiff voluntarily withdrew his Division of Human Rights complaint on March 17, 2009. Id.

During the 2008/09 school year, the District considered a reduction in force for all aides identified as "school aides, " including school monitors. Ex. D (Donohue Aff.) ¶ 12. In a memorandum to Plaintiff dated February 3, 2009, Dr. Donohue informed him that there was a possibility of a reduction in force and advised him of his reduction in force rank based upon his seniority. Ex. N. Seniority of school aides is governed by a collective bargaining agreement between the Civil Service Employees Association, Inc. Local 1, 000 A.F.S.C.M.E. and the District, valid from July 1, 2007 to June 30, 2011. Ex. V; see also Ex. D (Donohue Aff.) ¶ 14. Pursuant to the terms of Section 2 of the collective bargaining agreement, entitled "Seniority, " the seniority of school aids is computed from the date of commencement of employment. Ex. V. If more than one aide was appointed at the same time, the "tie breaker" is based on the number of unpaid leave days taken, or the date the employee returned his signed employment agreement. Ex. N. During Plaintiff's employment with the District, he used 71.5 unpaid days, which lowered his seniority rank. Ex. D (Donohue Aff.) ¶ 16. As of February 3, 2009, Plaintiff's reduction in force rank was "3, " meaning that two other aides had less seniority than him. Ex. N. The District budget called for the elimination of two school monitor positions as part of the reduction in force for the 2009/10 school year, effective June 30, 2009. Ex. D (Donohue Aff.) ¶ 19. The two school monitors who were laid off based upon the reduction in force were two Caucasian men, Richard Ciccotelli and Thomas Muska. Exs. D (Donohue Aff.) ¶ 20; G (Ciccotelli Aff.) ¶ 6; W (School Monitors Seniority List).

On June 4, 2009, Plaintiff was informed that as a result of the reduction in force, the District was anticipating transferring five classroom aides and one school monitor to different buildings the following year, that the transfers would be determined based on seniority, and that based on his seniority, Plaintiff was scheduled to be among those transferred. Ex. P. Thereafter, on June 24, 2009, Plaintiff was informed that in order to meet the District's staffing requirements, he was being transferred to the H.C. Crittenden Middle School (the "middle school") for the 2009/10 school year. Ex. Q. Mr. Ciccotelli had held the position of school monitor at the middle school from October 2, 2008 until he was laid off from the position effective June 30, 2009. Ex. G (Ciccotelli Aff.) ¶¶ 3, 6.

According to Dr. Donohue, the job description for school monitors is the same for monitors at both the middle school and the high school, and that it is only the tasks assigned from the job description that change depending on the building. Ex. S; see also Ex. D (Donohue Aff.) ¶ 24. In response to a request by Plaintiff, on October 19, 2009, Dr. Donohue provided him with a copy of the Civil Service job description for school monitors, as well as the District's description of the job, which was created by Dr. Donohue in the ...

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