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Bryant v. South Country Central School District

United States District Court, E.D. New York

March 31, 2017

EDDIE BRYANT, Plaintiff,
SOUTH COUNTRY CENTRAL SCHOOL DISTRICT; BOARD OF EDUCATION, SOUTH COUNTRY CENTRAL SCHOOL DISTRICT; CHRIS PICINI, President of the Board of Education, South Country Central School District and Individually; CAROL HERMANN, Vice President of the Board of Education, South Country Central School District and Individually; ROCCO DiVITO, Trustee, Board of Education, South Country Central School District and Individually; LISA DiSANTO GROSSMAN, Trustee, South Country Central School District and Individually; JEANNETTE MISTLER, Trustee, South Country Central School District and Individually; JULIO MORALES, Trustee, South Country Central School District and Individually; ROB POWELL, Trustee, South Country Central School District and Individually; BARBARA SCHATZMAN, Trustee, South Country Central School District and Individually; ANTOINETTE HUFFINE, Trustee, South Country Central School District and Individually; DANIELLE SKELLY, Trustee, South Country Central School District and Individually; ALLISON STINES, Trustee, South Country Central School District and Individually; DR. JOSEPH GIANI, Superintendent of Schools, South Country Central School District and Individually; and NELSON BRIGGS, Assistant Superintendent for Human Resources, South Country Central School District and Individually, Defendants.

          Harriet A. Gilliam, Esq. By: Harriet A. Gilliam, Esq. For the Plaintiff

          Devitt Spellman Barrett LLP By: Joshua S. Shteierman, Esq. For the Defendants


          Denis R. Hurley Senior District Court Judge

         I. Introduction

         The Defendants[1] move the Court for summary judgment in their favor on all of the racial-discrimination-based claims and state law claims brought by Plaintiff (“Bryant”). (See ECF Nos. 28, 28-24; hereafter, the “Summary Judgment Motion”.) Bryant opposes the Summary Judgment Motion in toto. (See ECF No. 29-22; hereafter, the “Opposition”.) For the reasons that follow, the Summary Judgment Motion is granted.

         II. Background [2]

         A. Factual Background

         1. Generally

         Bryant is an African-American male who, on July 12, 2012 (the “Start Date”), was hired as a substitute custodian for the School District. As such, Bryant would be called to work as a substitute custodian in various school buildings within the School District. For the balance of 2012, Bryant was routinely called to work two or three times per week. His work assignments increased in 2013, with Bryant being called into work almost every day of the work week.

         2. Bryant's Applying for Full-Time Custodial Positions

         From Bryant's Start Date to September 23, 2013, the School District posted two vacancy notices for full-time custodial positions: one in December 2012 (the “First Posting”), and one in March 2013 (the “Second Posting”). Bryant submitted an application for both Postings.

         As to the First Posting: Bryant was not granted an interview for the First Posting. At the time, he had been with the School District for five months. The person hired for the First Posting was a white male who had been a substitute custodian for the School District for almost two years. Despite the School District having a Non-Discrimination Policy and a Consolidated Complaint Procedure for students and employees, Bryant did not lodge a discrimination complaint when he did not get an interview for the First Posting.

         As to the Second Posting: Bryant was one of 40 applicants granted a first interview. Thereafter, four candidates where selected for a second interview; Bryant was one of the four. Ultimately, however, the job went to another candidate who was white, had been a substitute custodian for nearly three years before the Second Posting (i.e., a full year longer than Bryant), and who had scored the best on the five identical questions posed to the applicants. As with the First Posting, Bryant did not file a discrimination complaint with the School District when he was not awarded the Second Posting position. Indeed, he testified that he was “fine” with the other substitute custodian having been chosen for the job. (Bryant 50-H Exam at 49:10.)

         3. Bryant's Interaction with Westerbeke

         On September 20, 2013, Bryant was substituting at a middle school in the School District. On that day, he had a two to three minute conversation with cafeteria worker Kim Westerbeke (“Westerbeke”), whom he had first met four days prior. Part of the conversation was about Westerbeke successfully getting out of an abusive relationship. As part of the conversation, Bryant asked Westerbeke whether she was open-minded and would she be interested in making a video. She indicated “yes” to the open-minded inquiry, but gave an ambivalent response regarding the video inquiry.[3] Since he did not have time to explain his reasons for wanting to make a video, i.e., that it related to his affiliation with his church and its youth group, Bryant asked Westerbeke to see him before she left work so he could provide more information. She did not do so. Therefore, Bryant left Westerbek a note with his mobile phone number and a request for her to call or text him to further discuss her willingness to make a video (hereafter, the “Note”). He left the Note near Westerbeke's name tag and apron.

         4. Westerbeke's Complaint and Briggs' Subsequent Meeting with Bryant

         Westerbeke did not discover Bryant's Note until Monday morning, September 23, 2013. She brought it to the attention of the head custodian at the middle school, who, in turn, brought it to the principal's attention. Thereafter, the principal met with Westerbeke and requested Westerbeke write a statement explaining what occurred. Westerbeke complied, stating:

On Friday Sept. 20, 2013 I Kim Westerbeke was approached by Eddie the substitute custodian and was asked if I wanted to do a video with him. When he did not receive an answer Eddie continued to watch me the remainder of the day. I left work Friday at 2:15 p.m. with no further communication. He was standing outside the cafeteria I think waiting for me not knowing I carpool. When I arrived at work Monday Sept. 23, 2013 I had found a note from Eddie on my apron with his cell number wanting me to call or text him.

         On September 23rd, the principal forwarded Westerbeke's statement, together with the Note and a cover memorandum regarding the “alleged case of inappropriate conduct against” Bryant (hereafter, the “Westerbeke Complaint”) to Assistant Superintendent Briggs. (See Exhibit N, attached to Shteierman Declaration.) The principal concluded her memorandum by stating, “As per your directive, the undersigned did not conduct an investigation, but requests that Mr. Eddie Bryant not serve as a substitute custodian at Frank P. Long Intermediate School.” (Id.)

         That same day, after receiving the Westerbeke Complaint, Briggs called Bryant using the phone number contained in the Note. Bryant answered Briggs' call during which Briggs asked Bryant to meet him the next day in his office. Bryant agreed, believing Briggs might be offering him a job “under the table”. (Bryant 50-H Exam at 28:10-29:4.)

         Bryant arrived at Briggs' office the next morning. During the meeting, Briggs informed Bryant that he had been forwarded the Westerbeke Complaint, including the Note. He also told Bryant that he had used the phone number in the Note to call Bryant. Briggs explained to Bryant that the incident had to be further investigated and that, until further notice, Bryant would not be called as a substitute custodian within the School District. (See Briggs' Aff. at ¶17 (ECF No. 28-2).) Briggs informed Bryant that, pending further investigation, he was directing the head custodians at the various schools within the School District to no longer call Bryant.

         Bryant said little in the meeting; he did not provide any explanation for what occurred between him and Westerbeke. Bryant contends he was in shock and was neither given the opportunity, nor asked, to explain what transpired. (See Bryant's LR 56.1 Statement at ¶39 (additional material facts (citing Bryant 50-H Exam at 30:5-14).)

         5. Events After the Briggs/Bryant September 2013 Meeting

         After his meeting with Bryant, Briggs met with Westerbeke to further investigate her complaint; her recollection of the incident with Bryant did not change.

         At the end of October 2013, Briggs called Bryant to arrange a further meeting to finish his investigation of the Westerbeke Complaint. Bryant told Briggs that he (Bryant) would have his attorney arrange a meeting with Briggs. No such meeting ever occurred. As a result, Briggs' investigation was never completed. Two consequences stem from the incomplete investigation: Bryant's name was not removed from the substitute custodians list, and the Board has not made a final determination regarding Bryant's employment status. Yet, while his name remained on the School District's substitute custodians list, Bryant has not been called for any further work assignments.

         6. Bryant's Subsequent Racial Discrimination Letter Complaint and Other Relevant Facts

         On January 17, 2014, Bryant wrote a letter to Briggs alleging Bryant's belief that he was discriminated against by the School District by being denied a full-time custodial position because of his race (hereafter, the “Racial Discrimination Letter Complaint”). (See Bryant's LR 56.1 Statement at ¶65 (additional fact (citing Exhibit S, attached to Gilliam Decl.).) He sent a copy of the Racial Discrimination Letter Complaint to Superintendent Giani. Bryant requested that his Complaint be investigated by someone other than Briggs. (See id.) Bryant never participated in any meetings to review this Complaint. (See Exhibit P (Letter from Attorney Spencer to Attorney Gilliam (Feb. 20, 2014)(“[T]he [School] District is attempting to schedule a meeting with your client so as to provide an opportunity to address and investigate his claims.”)); (Letter from Attorney Spencer to Attorney Gilliam (Mar. 27, 2014)(investigation into Bryant's Racial Discrimination Letter Complaint “await[s] meeting[] with Mr. Bryant before resolution”)); attached to Shteierman Decl.) No results of any investigation into his Racial Discrimination Letter Complaint were received by Bryant. (See Bryant's LR 56.1 Statement at ¶69 (additional fact (no citation provided)).) Nor did Bryant receive any results of the investigation of the Westerbeke Complaint. (See Id. at ¶¶71, 72 (addition facts (citing Bryant 50-H Exam at 55:17-24)); but see Exhibit P (Letter from Attorney Spencer to Attorney Gilliam (Mar. 27, 2014)(investigation of Westerbeke Complaint remains pending “awaiting meeting with Mr. Bryant before resolution”), attached to Shteierman Decl.)

         Bryant's name remained on the 2013/2014 school year substitute custodians list. He received notification from the School District that his name was included on the 2014/2015 school year substitute custodians list, as well. (See Bryant's LR 56.1 Statement at ¶50 (additional fact (citing Exhibit J, attached to Gilliam Decl.), and at ¶53 (additional fact (citing Exhibits I & J, attached to Gilliam Decl.).) Nothing in Bryant's personnel file indicates that the School Board has terminated Bryant or disciplined him in any way for alleged sexual harassment. (See Id. at ¶74 (additional fact (citing Bryant 50-H Exam at 57:4-6)); see also Exhibit R, Document, “Eddie Bryant vs. Kim Westerbeke” (two-page document devoid of the phrases “sexual harassment” or “termination”; author unidentified), attached to Gilliam Decl.).)

         7. The School District's Employment of African-American Custodians During the Relevant Time Period

         “During the 2013/2014 school year, the [School] District employed seven African American custodians.” (Defendants' LR 56.1 Statement at ¶34.) They constitute 15% of the full-time custodians in the School District, which is similar to the percentage of African-Americans residing in Suffolk County during the same time period. (See id.) During that same time period, the School District employed 41 substitute custodians of which 10 where African American, i.e., approximately 24% of the substitute custodial staff. (See Id. at ¶35.)

         B. Procedural Background

         On September 25, 2014, Bryant filed his Verified Complaint. (See ECF No. 1.) It is a six-count action alleging racial discrimination and retaliation, defamation, and negligence.

         Bryant brings his racial discrimination claims pursuant to 42 U.S.C. §§ 1981 and 1983. In his first cause of action, Bryan alleges the Defendants racially discriminated against him “with respect to his terms and conditions of employment[, ] by wrongfully accusing him of sexual harassment, disciplining him without any justification and investigation, denying him promotions; terminating him; and arbitrarily refusing to contact him to report for available assignments of work . . . .” (Complaint, First Cause of Action, ¶63.) In his second cause of action, Bryant alleges he was denied a promotion to full-time custodian because he is African-American. He asserts the School District “had a pattern and practice of blocking African-Americans from advancing to full-time custodian positions or promotions, and denying them these advancements based on race in violation of the Fourteenth Amendment, Equal Protection Clause.” (Id., Second Cause of Action, ¶71.) His third cause of action, raised pursuant to § 1983, is for retaliation. Bryant asserts that as a result of his “having complained about his disparate treatment and discriminatory terms and conditions of employment based on race” that “from the end of September, 2013, to date, defendant [School] District has not called [Bryant] back to work.” (Id., Third Cause of Action, ¶75.) Bryant's fourth cause of action is based on alleged violation of due process to which he is entitled under the Fourteenth Amendment. He maintains the [School] District has “denied [him] procedural and substantive due process by accusing him of sexual harassment and terminating him without the benefit of an investigation or an opportunity to clear his name.” (Id., Fourth Cause of Action, ¶82.)

         Bryant raises two state law claims: one of negligence and one of defamation. Bryant's negligence claim, his fifth cause of action, is based on Briggs' alleged failure to: (1) follow “[School] District policy requiring there to be a thorough investigation before [Bryant] could be subjected to any personnel action” (id., Fifth Cause of Action, ¶87.); and (2) “refer a personnel decision to the superintendent and board before summarily discharging [Bryant] without the authority to do so” (id. at ¶88). Bryant further contends that the Defendant Board did nothing to correct Briggs' alleged unauthorized action. (See Id. at ¶90.) Bryant's sixth cause of action, for defamation, is based on Briggs' allegedly making and publishing “defamatory statements concerning [Bryant's] conduct and moral character which are false and incapable of being proven to be true.” (Id., Sixth Cause of Action, ¶95.)

         Defendants filed their Answer on November 4, 2014. (See ECF No. 7.) Generally, they deny Bryant's allegations, as well as raise seventeen affirmative defenses. (See id.) After discovery was conducted, Defendants filed a fully briefed motion for summary judgement (see ECF Nos. 28, 29, 30), including Bryant's opposition thereto (see ECF No. 29).

         III. Discussion

         A. The Applicable Law

         1. Summary Judgment Standard

         Summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure is appropriate only 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). In each case, the relevant governing law determines which facts are material; “only 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 (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 nonmovant, that no rational jury could find in the nonmovant's favor. See Chertkova v. Conn. Gen'l Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996).

         To defeat a summary judgment motion which is properly supported by affidavits, depositions, or other documentation, the nonmovant must offer similar materials setting forth specific facts showing there is a genuine issue of material fact to be tried. See Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). More than a “scintilla of evidence”, see Del. & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252) (internal quotation marks omitted), or “some metaphysical doubt as to the material facts, ” see 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 (1986)) (internal quotation marks omitted), is required of the nonmovant. Nor can the nonmovant rely on the allegations in his or her pleadings, 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) (internal citations omitted).

         Further, when considering a summary judgment motion, a district court must be “mindful . . . of the underlying standards and burdens of proof, ” Pickett v. RTS Helicopter, 128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson, 477 U.S. at 252), 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 nonmovant's claim. See id. at 210-11. Where a movant who does not carry the underlying burden of proof offers evidence that the nonmovant has failed to establish his claim, the burden shifts to the nonmovant to offer “persuasive evidence that [his] claim is not implausible.” Id. at 211 (citing Matsushita, 475 U.S. at 587). The nomoving party's evidence is “ ‘to be believed, and all justifiable inferences are to be drawn in [the nonmovant's] favor.' ” Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)(quoting Anderson, 477 U.S. at 255)).

         Summary judgment is generally inappropriate “where questions of intent and state of mind are implicated, ” Gelb v. Bd. of Elections of the City of N. Y., 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.

         2. Local Rule 56.1 Statements

         When moving for summary judgment, in addition to complying with the Federal Rule of Civil Procedure 56, the parties must comply with Local Rule 56.1 of the United States District Courts of the Southern and Eastern Districts (“Local Rule 56"). As the Second Circuit has instructed, the Local Rule 56 “requirement is strict”. T.Y. v. N.Y. City Dep't of Educ., 584 F.3d 412, 417 (2d Cir. 2009). Among other things, it

requires that any motion for summary judgment be accompanied by a list of the “material facts as to which the moving party contends there is no genuine issue to be tried.” S.D.N.Y. & E.D.N.Y. R. 56.1(a). The nonmoving party must respond to each numbered allegation in the moving party's statement and include, if necessary, a statement of the additional material facts, as to which a genuine issue exists. S.D.N.Y. & E.D.N.Y. R. 56.1(b). In the typical case, failure to respond to a Rule 56.1 statement results in a grant of summary judgment once the court assures itself that Rule 56's other requirements have been met. T.Y. v. N.Y. City Dep't of Educ., 584 F.3d 412, 417-418 (2d Cir. 2009).

Parris v. Acme Bus Corp., 956 F.Supp.2d 384, 392 (E.D.N.Y. 2013).

         Furthermore, Local Rule 56.1(c) instructs: “Each numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a corresponding numbered paragraph in the statement required to be served by the opposing party.” Local Rule 56.1(c)(italicized and boldface emphasis added); see also Giannullo v. City of New York, .322 F.3d 139, 140 (2d Cir. 2003)(“If the opposing party then fails to controvert a fact so set forth in the moving party's Rule 56.1 statement, that fact will be deemed admitted.” (citations omitted)). “A nonmovant cannot ‘raise a material issue of fact by denying statements which the moving party contends are undisputed for lack of ‘knowledge and information'' in part because ‘discovery allows the party opposing summary judgment to obtain the facts necessary to determine whether it must admit or deny them.'” AFL Fresh & Frozen Fruits & Vegetables, Inc. v. De-Mar Food Servs., Inc., No. 06-cv-2142, 2007 WL 4302514, at *4 (S.D.N.Y. Dec. 7, 2007)(quoting Stepheny v. Brooklyn Hebrew School for Special Children, 356 F.Supp.2d 248, 255 n.4 (E.D.N.Y. 2005)). “Therefore, to the extent that [a nonmovant] ha[s] denied statements for lack of ‘knowledge and information, ' they will be deemed admitted.” Stepheny, 356 F.Supp.2d at 255 n.5 (stating it is improper for a nonmovant to deny for lack of “knowledge and information” a Rule 56.1 statement); see also Taylor & Fulton Packing, LLC v. Marco Intern. Foods, LLC, No. 09-cv-2614, 2011 WL 6329194, at *4 (E.D.N.Y. Dec. 16, 2011)(“Where a nonmovant . . . files a deficient statement, courts frequently deem all supported assertions in the movant's statement admitted and find summary judgment appropriate.” (footnote omitted)); Delphi-Electro Elec. Sys. v. M/V Nedlloyd Europa, 324 F.Supp.2d 403, 425 n.13 (S.D.N.Y. 2004)(a nonmovant's response that “it has no information to confirm or deny” a statement of material fact is “vague” and “is insufficient to create a genuine issue of fact”).

         Moreover, to specifically controvert a statement of material fact, a nonmovant is required to do so with specific citation to admissible evidence. See Local Rule 56(d); see also Ezagui v. City of New York, 726 F.Supp.2d 275, 285 n.8 (noting statements which a nonmovant does “not specifically deny-with citations to supporting evidence-are deemed admitted for purposes of [movant's] summary judgment motion”, and collecting cases); see also Universal Calvary Church v. City of New York, No. 96-cv-4606, 2000 WL 1745048, *2 n.5 (S.D.N.Y. Nov. 28, 2000). As the Second Circuit has observed, “ ‘where there are no[] citations or where the cited materials do not support the factual assertions in the Statements, the Court is free to disregard the assertion.'” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 74 (2d Cir. 2001) (quoting Watt v. N.Y. Botanical Garden, No. 98-cv-1095, 2000 WL 193626, at *1 n.1 (S.D.N.Y. Feb. 16, 2000); further citations omitted; emphasis added), abrogated on other grounds by Gross v. FBL Fin. Servs., 557 U.S. 167 (2009). Indeed, “[w]here . . . the record does not support the assertions in a Local Rule 56.1 statement, those assertions should be disregarded and the record reviewed independently.” (Id. (omitting footnote; citing Zanghi v. Inc. Village of Old Brookville, 752 F.2d 42, 47 (2d Cir. 1985)).

         3. §§ 1981 & 1983 Claims of Racial Discrimination

         Section 1983 provides for an action at law against a “person who, under color of any statute, ordinance, regulation, custom, or usage of any State . . . subjects or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and law.” 42 U.S.C. § 1983. Section 1983 “is not itself a source of substantive rights”; rather, it “merely provides a method for vindicating federal rights elsewhere conferred, such as those conferred by § 1981”. Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004), quoting Baker v. McCollan, 443 U.S. 137, 144 n.3, (1979). Indeed, “the express cause of action for damages created by § 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental units . . . .” Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701 (1989); see also Barella v. Vill. of Freeport, 16 F.Supp.3d 144, 157 (E.D.N.Y. 2014).

         Section 1981 provides, in pertinent part, that “[a]ll persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens . . . .” 42 U.S.C. § 1981(a). Claims of disparate treatment pursuant to § 1981 and § 1983 are assessed using the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g., St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); United States v. City of New York, 717 F.3d 72, 83-84 (2d Cir. 2013) (discussing application of McDonnell Douglas framework to race discrimination claim); Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010)(same); Anderson v. Hertz Corp., 507 F.Supp.2d 320, 326-27 (S.D.N.Y. 2007)(“Although it was initially established for Title VII claims, the burden-shifting framework described in McDonnell Douglas . . . also applies to claims arising under § 1981.”).

         Under that framework, a plaintiff must first establish a prima facie case of discrimination. See St. Mary's, 509 U.S. at 506; Dowrich-Weeks v. Cooper Square Realty, Inc., 535 F. App'x 9, 11 (2d Cir. 2013). A plaintiff makes “a prima facie case by showing that ‘(1) at the relevant time the plaintiff was a member of the protected class; (2) the plaintiff was qualified for the job; (3) the plaintiff suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination.'” Barella, 16 F.Supp.3d at 158 (quoting Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005)).

         If the plaintiff satisfies this initial burden, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. See St. Mary's, 509 U.S. at 506-07. A defendant's burden “is not a particularly steep hurdle.” Hyek v. Field Support Servs., 702 F.Supp.2d 84, 93 (E.D.N.Y. 2010). It “is one of production, not persuasion; it can involve no credibility assessment.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).

         If the defendant-employer is able to satisfy that burden, the inquiry shifts back to the plaintiff to demonstrate that the proffered reason is a pretext for discrimination. See United States v. City of New York, 717 F.3d at 102. To defeat summary judgment at this stage, “a plaintiff need only show that the defendant was in fact motivated at least in part by the prohibited discriminatory animus.” Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 156 (2d Cir. 2010); see also Bowen-Hooks v. City of New York, 13 F.Supp.3d 179, 209-10 (E.D.N.Y. 2014). However, a plaintiff pursuing a claimed violation of §1981 or §1983 must show that the discrimination was intentional. See Tolbert v. Queens College, 242 F.3d 58, 69 (2d Cir. 2001); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 118 (2d Cir. 2004).

         4. 14th Amendment Equal Protection Claims

         “To state a race-based claim under the Equal Protection Clause, a plaintiff must allege that a government actor intentionally discriminated against him on the basis of his race.” Brown v. City of Oneonta, New York, 221 F.3d 329, 337 (2d Cir. 1999) (citing Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir. 1999)). The Brown Court instructs that a plaintiff may plead Equal Protection intentional discrimination in several ways:

A plaintiff could point to a law or policy that expressly classifies persons on the basis of race. Or, a plaintiff could identify a facially neutral law or policy that has been applied in an intentionally discriminatory manner. A plaintiff could also allege that a facially neutral statute or policy has an adverse effect and that it was motivated by discriminatory animus.

Id. (internal quotations and citations omitted).

         5. 14th Amendment Due Process Claims

         To assert a violation of procedural due process rights, a plaintiff must “first identify a property right, second show that the [School District] has deprived him of that right, and third show that the deprivation was effected without due process.” Local 342, Long Island Pub. Serv. Emps., UMD, ILA, AFL-CIO v. Town Bd. of Huntington, 31 F.3d 1191, 1194 (2d Cir. 1994)(citation omitted). The threshold issue, therefore, is whether the plaintiff has a constitutionally protected property interest. See Id. If so, a court then determines: (1) whether the defendant deprived the plaintiff of that interest, and (2) if so, whether the procedures surrounding that deprivation were constitutionally adequate. See Shakur v. Selsky, 391 F.3d 106, 118 (2d Cir. 2004). Property interests “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law - rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972).

         6. Liability of Municipalities and of Individuals Sued in their ...

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