United States District Court, N.D. New York
JEFFREY A. MELLO, Plaintiff,
SIENA COLLEGE, Defendant.
GLEASON, DUNN, WALSH & O'SHEA Counsel for Plaintiff
F. JOSLIN, ESQ.
& DEMPF, LLP Counsel for Defendant
MICHAEL L. COSTELLO, ESQ.
DECISION AND ORDER
T. SUDDABY, Chief United States District Judge
before the Court, in this employment discrimination action
filed by Jeffrey Mello (“Plaintiff”) against
Siena College (“Defendant”), is Defendant's
second motion for summary judgment pursuant to Fed.R.Civ.P.
56. (Dkt. No. 41.) For the reasons set forth below,
Defendant's motion is granted.
Plaintiffs' Amended Complaint
Amended Complaint asserts the following five claims: (1) a
claim that Defendant retaliated against Plaintiff for
reporting and complaining of unlawful employment practices,
in violation of N.Y. Exec. Law (“NYSHRL”) §
296(1)(e); (2) a claim that Defendant breached
Plaintiff's employment contract when it reduced his
salary after he was removed from his position as Dean of the
School of Business; (3) a claim that Defendant retaliated
against Plaintiff by removing him from his position as Dean
of the School of Business and reducing his salary after he
complained of unlawful employment practices, in violation of
Title VII, 42 U.S.C. § 2000e-3(a); (4) a claim that
Defendant violated the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 215(a)(3), as modified
by the Equal Pay Act (“EPA”) of 1963, 29 U.S.C.
§ 206(d) et seq., when it retaliated against
Plaintiff by removing him from his position as Dean of the
School of Business and reducing his salary after he
complained of unlawful employment practices; and (5) a claim
that Plaintiff is entitled to an award of attorneys' fees
and expenses pursuant to 42 U.S.C. § 1988(b) and 29
U.S.C. § 216(b). (Dkt. No. 3, ¶¶ 50-69
[Pl.'s Am. Compl.].) Familiarity with the factual
allegations supporting these claims in Plaintiff's
Amended Complaint is assumed in this Decision and Order,
which is intended primarily for the review of the parties.
Statement of Undisputed Material Facts
reciting the material facts of this case, the Court must
address two issues it has identified in Plaintiff's
response to Defendant's Statements of Material Facts,
made pursuant to Local Rule 7.1(a)(3) of the Local Rules of
Practice for this Court. First, with respect to many of
Defendant's factual assertions, Plaintiff admits
“but denies the materiality of” those assertions.
(See, e.g., Dkt. No. 47, ¶¶ 39-41, 59-62
[Pl.'s Rule 7.1 Response].) Of course a party may not be
awarded summary judgment on the basis of undisputed
immaterial facts. As a result, a party opposing a
motion for summary judgment may object that particular facts
(disputed or undisputed) are immaterial to the motion.
However, the materiality of an assertion of fact on a motion
for summary judgment is a legal conclusion to be made by the
Court. See, e.g., Davis v. United States,
11-CV-1211, 2015 WL 11142426, at *2, n.2 (N.D.Ga. March 31,
2015) (“[M]ateriality . . . [is] . . . a legal
conclusion to be made by the Court . . . .”); cf.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986) (“As to materiality, the substantive law will
identify which facts are material.”). As a result,
where a non-movant has merely objected to the materiality of
a properly supported fact, and the Court has concluded that
the fact is material, the fact will be deemed admitted.
See, e.g., Newmark v. Lawrence Hosp. Ctr.,
07-CV-2861, 2008 WL 5054731, at *8, n.7 (S.D.N.Y. Oct. 20,
2008) (finding two material facts admitted where the
non-movant merely objected to the materiality of the facts);
accord, Bourne Co. v. Hunter Country Club, Inc., 990
F.2d 934, 938 (7th Cir. 1993); Lee v. Univ. Underwriters
Ins. Co., 12-CV-3540, 2014 WL 11858159, at *1 (N.D.Ga.
June 25, 2014); Cunningham v. Enter. Rent-a-Car Co.,
07-CV-1615, 2010 WL 724507, at *2, n.3 (W.D. Pa. Mar. 1,
2010). Moreover, a non-movant denying a movant's factual
assertion in a statement of facts is required to support that
denial by “set[ting] forth a specific citation to the
record where the factual issue arises.” N.D.N.Y. L.R.
7.1(a)(3). Furthermore, “[t]he Court shall deem
admitted any properly supported facts set forth in the
[moving party's] Statement of Material Facts that the
[non-moving] party does not specifically controvert.”
Id. Simply stated, regardless of whether some or all
of the facts to which Plaintiff responds as set forth above
are immaterial for purposes of Defendant's motion for
summary judgment, the issue of whether those facts
are properly disputed is a separate matter.
at various points throughout Plaintiff's Rule 7.1
Response, he “admits” facts asserted by Defendant
in its Rule 7.1 Statement but then includes additional facts
and/or legal argument in those responses. In these instances,
the Court will treat Defendant's assertions as
undisputed. (See, e.g., Dkt. No. 47, ¶¶
17, 21, 37 [Pl.'s Rule 7.1 Response].) See also CA,
Inc. v. New Relic, Inc., 12-CV-5468, 2015 WL 1611993, at
*2 n.3 (E.D.N.Y. Apr. 8, 2015) (holding that “the Court
will consider the statement provided by [Plaintiff] as
undisputed because [Defendant's] initial response in each
instance is, in fact, ‘Undisputed'”);
Washington v. City of New York, 05-CV-8884, 2009 WL
1585947, at *1 n.2 (S.D.N.Y. June 5, 2009) (holding that
“the statement provided by Defendants is taken as true
because Plaintiff[']s initial response in each instance
is ‘Admit'”); see also Baity v.
Kralik, 51 F.Supp.3d 414, 418 (S.D.N.Y. 2014) (noting
that plaintiff's responses failed to comply with the
court's local rules where “Plaintiff's
purported denials . . . improperly interject arguments and/or
immaterial facts in response to facts asserted by Defendants,
often speaking past Defendants' asserted facts without
specifically controverting those same facts”);
Goldstick v. The Hartford, Inc., 2002 WL 1906029, at
*1 (S.D.N.Y. Aug. 19, 2002) (striking plaintiff's Rule
56.1 Statement, in part, because plaintiff added
“argumentative and often lengthy narrative in almost
every case the object of which is to ‘spin' the
impact of the admissions plaintiff has been compelled to
make”). To the extent that Plaintiff wanted to set
forth additional material facts that he contends are in
dispute, he was required by Local Rule 7.1(a)(3) to do so in
separately numbered paragraphs. Johnson v. City of
Troy, 14-CV-0817, 2016 WL 5107124, at *8 n.12 (N.D.N.Y.
Sept. 20, 2016) (Suddaby, C.J.).
otherwise noted, the following facts were asserted and
supported with accurate record citations by Defendant in its
Statement of Material Facts (“Rule 7.1
Statement”) and expressly admitted by Plaintiff in his
response thereto (“Rule 7.1 Response”).
(Compare Dkt. No. 41, Attach. 1 [Def.'s Rule 7.1
Statement] with Dkt. No. 47 [Pl.'s Rule 7.1
May 18, 2010, Plaintiff was appointed Dean of the School of
Business at Siena College and a tenured faculty member in the
Department of Marketing and Management.
Plaintiff's appointment as Dean was an administrative
appointment governed by the Siena College Administrators'
Handbook, which he acknowledged receiving and reviewing. The
advertisement for the deanship set forth the duties and
responsibilities for the position.
Plaintiff's immediate supervisor as Dean was Dr. Linda
Richardson, the Vice President for Academic Affairs who
served as the College's Chief Academic Officer.
January 7, 2013, Dr. Richardson met with Plaintiff and
informed him of her concerns regarding his inadequate
performance. She advised him in writing that, “if
things do not improve, you will no longer serve as Dean of
the School of Business at the conclusion of this semester.
Furthermore, any egregious behavior on your part may call for
immediate dismissal as Dean.” Plaintiff acknowledged
receipt of the memorandum of this meeting.
February 1, 2013, Dr. Richardson met with Plaintiff to review
his written response, dated January 10, 2013, to Dr.
Richardson's concerns, as outlined in her letter dated
January 7, 2013, regarding Plaintiff's performance and
leadership as Dean.
Thereafter, Dr. Richardson sent a letter to Plaintiff, dated
February 26, 2013, in which she referenced their meeting that
was held on February 1, 2013, and raised new concerns
regarding Plaintiff's performance.
May 22, 2013, following the College's commencement, Dr.
Richardson met with Plaintiff.
letter dated June 4, 2013, Dr. Richardson informed Plaintiff
that the College had decided to terminate his appointment as
According to Dr. Richardson, Plaintiff's removal from his
position as Dean was based on a series of ongoing problems
and concerns including the following: lacking effective
leadership in the School of Business; becoming more detached;
being less enthusiastic and interested in his
responsibilities; being more aggressive and demeaning with
some faculty members; lacking engagement; lack of
responsibility; engaging in public disagreements with the
Account Department; causing a breakdown in communications;
breaching the confidentiality of faculty status meetings
involving decisions on tenure and promotion, which
compromised the College President's ability to make any
changes or reconsider any of what had already been announced
by Plaintiff; and being absent for Board of Trustees
During the 2012-2013 academic year, Dr. Richardson expressed
her increasing dissatisfaction with Plaintiff's
performance of his administrative responsibilities to
President Rev. Kevin Mullen.
During the academic year, an intervention was arranged by
President Mullen and conducted by Dr. Joseph Pastore, a
former chair of the Siena Board of Trustees and Provost of
Pace University, to address relational issues and tensions
within the School of Business, particularly interactions
between the members of the Accounting Department.
May of 2013, following commencement, based on the
recommendation of Dr. Richardson, President Mullen made the
decision to remove Plaintiff from the position of Dean of the
School of Business.
President Mullen's decision to remove Plaintiff from his
deanship was based on several factors relating to his recent
performance with the key decisive factor in his decision
being the breach of confidentiality of the promotion and
tenure review process by Plaintiff (approximately three
months before), thereby compromising the President's
ability to make a final decision regarding promotion and
tenure decisions advanced by the Faculty Status
Although President Mullen appreciated that Plaintiff
acknowledged that he had made a mistake, President Mullen
viewed Plaintiff's breach of confidentiality as egregious
and a very serious mistake because he believed it tended to
undermine the trust of everyone participating in the
functioning of the Faculty Status Committee and its
President Mullen determined that the cumulative effect of
Plaintiff's impaired performance and diminished
confidence coupled with the serious breach of confidentiality
was the key decisive factor leading to his decision to remove
him as Dean.
Plaintiff never discussed, presented, documented or commented
or conveyed any concerns, complaints, reports to President
Mullen involving gender inequity or gender bias regarding the
salaries of female faculty members of Siena College.
no time did any administrator, faculty member, staff member,
or trustee ever present or discuss, document, comment or
convey to President Mullen any concerns, complaints, reports
or references to gender inequity or gender bias with respect
to the salaries of female faculty members of Siena College.
President Mullen's decision to remove Plaintiff as Dean
of the School of Business was not grounded in, or motivated
by, non-managerial factors or reasons including alleged
complaints or concerns of gender inequity or gender bias
regarding the salaries of female faculty members of the
President Mullen determined to continue Plaintiff's
salary as Dean at the same level following his removal during
the summer months of 2013.
Following removal from his position as Dean, Plaintiff
retreated to a faculty position.
President Mullen's decision regarding Plaintiff's
salary reduction when he retreated to a faculty position was
based on performance factors, the recommendation of Dr.
Richardson, and the recognition that Plaintiff did not
possess the accomplishments to warrant any further extensions
of his salary as Dean.
Cynthia King-LeRoy, the Assistant Vice President for Human
Resources at Siena College, never received any comment,
expression of concern or complaint from Elaine Phelan
involving gender bias regarding her compensation or title.
Plaintiff never met with Christine Hammill-Cregan, the Equal
Opportunity and Employee Relations Specialist and Title IX
Coordinator at Siena College, regarding any complaints or
concerns involving gender inequity, gender bias, or
discrimination at Siena College.
Sandra Mulay Casey, College counsel for Siena, does not
recall Plaintiff ever raising, conveying, discussing or
presenting any specific concerns, reports or complaints to
her regarding gender inequity or gender bias involving the
salaries or compensation of Siena faculty.
no time during Professor Paul Dwyer's service as Chair of
the General Faculty Committee did Plaintiff ever raise,
convey, present or discuss any concerns or complaints to
Professor Paul Dwyer or the General Faculty Committee
regarding gender inequity or gender bias involving the
salaries of Siena College faculty members.
no time during Professor Dwyer's tenure as a faculty
member did Plaintiff ever raise, convey, present or discuss
any concerns or complaints regarding gender inequity or
gender bias involving the salaries of Siena College faculty
no time during Professor Dwyer's service as Chair of the
General Faculty Committee did any faculty member,
administrator, or officer ever raise, convey, present or
discuss any concerns or complaints to Professor Dwyer or to
the General Faculty Committee regarding gender inequity or
gender bias involving the salaries of Siena College faculty
Professor Dwyer personally observed significant tensions and
discord between members of the Accounting and Business Law
Department and Plaintiff during Plaintiff's tenure as
Dean of the School of Business.
Professor Elaine Phelan personally observed an ongoing
absence of harmony between the members of the Accounting
Department and Plaintiff in his role as Dean of the School of
Professor Wanda Causseaux, an Assistant Professor in the
Accounting Department at the School of Business, is not aware
of any employees of Siena College who alleged gender
discrimination or gender disparity or discrimination in
general in their compensation at Siena College.
Professor Causseaux is not aware of any current or former
employees of Siena College who have alleged ...