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Siani v. State University of New York at Farmingdale

United States District Court, E.D. New York

March 28, 2014

DOMINICK J. SIANI, Plaintiff,
v.
STATE UNIVERSITY OF NEW YORK AT FARMINGDALE, ET AL., Defendants

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Plaintiff, Pro se.

For SUNY: Mark J. Lemire, Albany, NY.

For All defendants: Patricia Hingerton, John L. Belford, IV, Office of the Attorney General, State of New York, Suffolk, Regional Office, Hauppauge, NY.

OPINION

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MEMORANDUM AND ORDER

JOSEPH F. BIANCO, United States District Judge.

Pro se plaintiff Dominick J. Siani (hereinafter " plaintiff" ) brought this action against his employer, the State University of New York (SUNY) and the State University of New York at Farmingdale (SUNY(F)), as well as W. Hubert Keen, Lucia Cepriano, Stephen Havlovic, Marti Anne Ellerman, Seth Gilbertson, Lorraine Greenwald, Francine Federman, Richard Vogel, Matilda Fava, Anthony Giffone, Judith Levine, Daniel Marrone, William Steedle, Socrates Thanasas, and Kathleen Walsh (collectively " defendants" ), alleging violations of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et. seq., the Fourteenth Amendment, and various claims under New York state law. This action has been consolidated under the same docket number as an earlier age-discrimination case, begun in 2009, that involves some of the same defendants. The Court has already decided a summary judgment motion in that case, and denied summary judgment with respect to certain claims.

Pending before the Court are five motions: defendants' motion for partial summary judgment, and plaintiff's motions requesting that the Court impose sanctions for spoliation and attorney misconduct, compel production of documents withheld under the attorney-client privilege, and strike portions of an affidavit. Plaintiff's four motions are discussed in more detail in section III, infra, but in short they are denied because plaintiff did not meet his burden under the applicable legal standards.

Defendants' summary judgment motion is denied in part and granted in part. Plaintiff's core claim is that, when he was considered for reappointment as a professor, SUNY(F) and its officials denied his reappointment and terminated him immediately in retaliation for his earlier age-discrimination litigation against SUNY(F) and some of those same officials. After dismissing several of plaintiff's claims as a matter of law, the Court applies the burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) to plaintiff's remaining causes of action under the ADEA, 42 U.S.C. § 1983, and the New York Human Rights Law (NYHRL), and concludes that, if all of plaintiff's evidence is credited and all reasonable inferences are drawn in his favor, a reasonable jury could find that plaintiff was not reappointed and instead terminated because of his earlier age-discrimination lawsuits. Therefore, the Court denies summary judgment as to Keen in his official capacity on the retaliation claim under the ADEA and § 1983, which can only proceed with respect to injunctive relief. Similarly, the Court concludes, with respect to the retaliation claims under the NYHRL against the individual defendants, that there is sufficient evidence to survive summary judgment as to certain defendants. Therefore, the Court denies defendants' summary judgment motion as to the retaliation claim under the NYHRL with

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respect to defendants Keen, Cepriano, and Vogel only, because those are the only defendants whom a rational jury could find had a retaliatory motive, when viewing the evidence in a light most favorable to plaintiff, and whose participation in the employment decision made retaliation the " but for" cause of plaintiff not being reappointed and, instead, being terminated. Plaintiff's evidence concerning the remaining individual defendants could not, even if credited, convince a reasonable jury that plaintiff suffered any adverse action as a result of any discrimination or retaliation by them.

The Court also grants summary judgment with respect to plaintiff's state-law causes of action for defamation and breach of contract. In short, the statement at issue in the defamation cause of action is a statement of opinion, not fact, and it is also privileged. The breach of contract claim alleges that defendants did not conduct plaintiff's reappointment in accordance with a Stipulation of Settlement executed during the prior litigation, but the only party to that contract in his individual capacity was Keen, and a reasonable jury could not conclude that he breached the provisions of the Stipulation cited by plaintiff.

I. Background

Plaintiff has been involved in age-discrimination litigation against SUNY(F) since 2005. For background purposes, some of the litigation is described below, followed by a discussion of the facts pertinent to the present motion.

A. Procedural History

Plaintiff was an adjunct professor at SUNY(F) who, in 2005, sued the school for age discrimination he allegedly encountered when he sought to become a full-time professor. In 2007, he settled that lawsuit and, pursuant to a Stipulation of Settlement (" Stipulation" ), was made a full-time, tenure-track Assistant Professor. (Stipulation ¶ 3.) The Stipulation provided that plaintiff would be appointed to a three-year term from 2007 to 2010, followed by a two-year term in the same position from 2010 to 2012. ( Id.)

On January 30, 2009, plaintiff filed another lawsuit against SUNY(F) and various individuals, alleging age discrimination related to his attempt to become chairman of the Business Management Department. On June 7, 2011, defendants moved for summary judgment. The Court denied summary judgment on most claims on December 15, 2011.

On August 26, 2011, while the summary judgment motion was pending, plaintiff was fired from his position as Assistant Professor, after a reappointment process that is described in more detail below. On February 6, 2012, plaintiff filed a new complaint under a different docket number, alleging that his termination was in retaliation for his lawsuit and motivated by age discrimination. That complaint has since been amended (" the supplemental complaint" ) and the case was consolidated under the current docket number with the case begun in 2009.

The supplemental complaint contains seven causes of action alleging age discrimination and retaliation by SUNY, SUNY(F), and the fifteen individual defendants named in the first paragraph of this Memorandum and Order. Of the individuals, five were also named in the 2009 lawsuit related to the department chairmanship, while ten were new to this litigation. All fifteen individual defendants allegedly played some role in plaintiff's termination.

On June 3, 2013, defendants filed the present motion for partial summary judgment with respect to the supplemental complaint. The Court's decision on the

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previous motion for summary judgment, issued on the record on December 15, 2011, remains intact.[1]

B. Factual Background

As noted, plaintiff became a full-time faculty member at SUNY(F) in 2007 under the terms of the Stipulation, which also addressed SUNY(F)'s future hiring decisions with respect to plaintiff. One provision--now the basis for plaintiff's breach of contract claim--required that any future hiring decision be conducted in accordance with SUNY and SUNY(F) policies and by-laws, and with the collective bargaining agreement that applied to plaintiff. (Stipulation ¶ 3(f).) Another provision, however, created an exception to the normal reappointment process, and required that if plaintiff was ever considered for reappointment, Keen (the President of SUNY(F)) would designate another person to recommend whether plaintiff should be reappointed, and Keen would accept that recommendation. ( Id. ¶ 3(i).) Normally, Keen makes the ultimate determination whether faculty should continue to be employed (Def. 56.1 ¶ 191), although his decision follows a series of evaluations and recommendations by a committee within the candidate's department, a committee at the college level, and various administrators, including the applicable department chair, dean, and provost (Def. 56.1 ¶ 8; Pl. 56.1 ¶ ¶ 204-05).

In February 2011, plaintiff submitted a portfolio to the acting chair of his department (Business Management), seeking to be reappointed after the expiration of the terms established in the Stipulation. (Def. 56.1 ¶ 7.) From there, the evaluation of plaintiff's portfolio followed the normal process of sub-presidential evaluations and recommendations. First, plaintiff was reviewed in his own department, where he was recommended for reappointment by both the departmental committee and the department chair, Dr. Francine Federman. ( Id. ¶ ¶ 12-13.) Although Federman recommended plaintiff's reappointment, she is a named defendant because of reservations she expressed and material she included in plaintiff's portfolio. In particular, plaintiff argues that the inclusion of her observation report (concerning plaintiff's teaching) is a substantive due process violation. As is discussed more fully below, plaintiff contends that such reports are normally three pages long, but Federman added 38 pages of course material to her two-page report, making the report " unduly burdensome" in plaintiff's reappointment portfolio. (Pl. 56.1 ¶ 421.)

Next, plaintiff's portfolio went to the College Academic Faculty and Continuing and Term Appointment Committee (" CCTA" ), which also issues a non-binding recommendation. (Def. 56.1 ¶ 20.) In past years, the CCTA did not make recommendations concerning candidates like plaintiff, who were seeking reappointment as opposed to tenure. ( Id. ¶ 31.) At the beginning of the 2010-11 academic year, however, the CCTA decided that it would vote on reappointment portfolios as well. ( Id. ¶ 30.) The parties dispute whether this change was within the CCTA's authority. Plaintiff argues that specific faculty by-laws establish the responsibilities of the

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CCTA (Pl. 56.1 ¶ 32(c)), while defendants contend that CCTA procedures are not clearly defined and may permissibly vary from year to year (Def. 56.1 ¶ 32).

The CCTA procedures are relevant to several of plaintiff's causes of action, in part because the CCTA was the first step in the evaluation process where plaintiff was not recommended for reappointment. The CCTA informed him by letter on April 7, 2011, that it voted not to recommend him ( id. ¶ 33), and all seven members of the CCTA are now named defendants. Most prominent among them in plaintiff's submissions on these motions is the CCTA's chairman, Dr. Richard Vogel, who took charge in the 2010-11 academic year when the committee decided to vote on reappointment portfolios. ( Id. ¶ ¶ 27-31.) During 2010-11, when plaintiff was being considered for another position outside of the CCTA, Vogel was heard to ask rhetorically whether " we want someone who is FOILING everybody," an apparent reference to plaintiff's freedom-of-information requests. (Reganse Dep. at 47.)

On April 7, 2011, the CCTA notified plaintiff by letter that it had voted not to recommend him for reappointment.[2] (Ex. 2-7 to Greenwald Dep. at 348.) On a form attached to the letter, handwritten comments by four of the seven CCTA members indicated that plaintiff was lacking in peer-reviewed scholarship, progress toward his doctoral degree, and service to the school beyond his department. ( Id. at 349.)

Plaintiff's next evaluator was the Dean of the School of Business, Dr. Lorraine Greenwald. (Def. 56.1 ¶ 100.) On April 26, 2011, Greenwald recommended against reappointment, and did not explain the reason for her recommendation. (Ex. 2-7 to Greenwald Dep. at 355.) Two months earlier, she had observed plaintiff's teaching, and issued a memo for his file that contained favorable comments but also criticized him for publishing his " Instructor's Manual" online for students to view. (Ex. 2-D to Pl. Dep.) Greenwald's criticisms of the online publication appear to have been pedagogical in nature, but in the same paragraph she wrote that " it may be copyright infringement." ( Id.) That comment is now the basis for plaintiff's defamation claim.

After Greenwald, the next person to evaluate plaintiff's portfolio was Dr. Lucia Cepriano, the Provost and Vice President for Academic Affairs. (Def. 56.1 ¶ 101.) By letter dated July 27, 2011, Cepriano informed plaintiff that she was not recommending him for reappointment. (Ex. 2-7 to Greenwald Dep. at 356-57.) She wrote that her decision was based on his lack of peer-reviewed scholarship and service beyond his department. ( Id.)

At the same time that Cepriano conducted her review, SUNY(F) engaged the independent reviewer required by the Stipulation. Dr. Steven Havlovic, the Vice President for Academic Affairs at Alfred State College, had been identified by SUNY officials as someone outside of SUNY(F) who could objectively evaluate plaintiff and issue a recommendation to Keen. (Def. 56.1 ¶ ¶ 102-03, 107-08.) He appears to have received all of the previous recommendations, but he was instructed not to consult anyone at SUNY(F) directly. ( Id. ¶ ¶ 108, 113.) Havlovic ultimately decided not to recommend

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plaintiff for reappointment, primarily because of his deficient scholarship. (Havlovic Dep. at 164-68.)

Havlovic issued his written recommendation not to reappoint plaintiff in the form of a letter dated August 26, 2011, addressed to Seth Gilbertson, who was campus counsel at SUNY(F). (Ex. 2-9 to Havlovic Dep.) Gilbertson was SUNY(F)'s liaison to Havlovic during the reappointment process, and the person who instructed him not to consult with others at SUNY(F). (Def. 56.1 ¶ ¶ 109-10.) Plaintiff alleges that Gilbertson unduly influenced Havlovic's decision and added derogatory material to his final recommendation. (Pl. 56.1 ¶ 111.) Gilbertson's supervisor, a SUNY attorney named Marti Ann Ellerman, is also a defendant in the supplemental complaint.

On the same day that Havlovic recommended against reappointing plaintiff, Gilbertson informed Keen of Havlovic's negative recommendation, and Keen notified plaintiff by letter that he would not be reappointed and was terminated effective immediately. (Def. 56.1 ¶ ¶ 134-35.) The immediate termination was governed by a buy-out clause in the collective bargaining agreement that applied to plaintiff, which required SUNY(F) to pay plaintiff his salary for the remainder of his term appointment, until August 2012. ( Id. at 135.) It is undisputed that the Stipulation did not address the buy-out clause or prevent SUNY(F) from relying on it. ( Id. at 136.)

Below, the Court considers defendants' motion for partial summary judgment before proceeding to plaintiff's four motions.

II. Summary Judgment

A. Standard of Review

The standards for summary judgment are well settled. Pursuant to Federal Rule of Civil Procedure 56(a), a court may only grant a motion for summary judgment if " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the burden of showing that he or she is entitled to summary judgment. Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). " A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1). The court " is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (quoting Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (summary judgment is unwarranted if " the evidence is such that a reasonable jury could return a verdict for the nonmoving party" ).

Once the moving party has met its burden, the opposing party " must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (emphasis in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87,

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106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). As the Supreme Court stated in Anderson, " [i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Indeed, " the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at 247-48 (emphasis in original). Thus, the nonmoving party may not rest upon mere conclusory allegations or denials but must set forth " 'concrete particulars'" showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978)). Accordingly, it is insufficient for a party opposing summary judgment " merely to assert a conclusion without supplying supporting arguments or facts." BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996) (quoting Research Automation Corp., 585 F.2d at 33).

The Second Circuit has provided additional guidance regarding summary judgment motions in discrimination cases:

We have sometimes noted that an extra measure of caution is merited in affirming summary judgment in a discrimination action because direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions. See, e.g., Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). Nonetheless, " summary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact." McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997); see also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (" It is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases." ).

Schiano v. Quality Payroll Sys., 445 F.3d 597, 603 (2d Cir. 2006) (quoting Holtz v. Rockefeller & Co., 258 ...


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