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Diaz v. City University of New York

United States District Court, S.D. New York

July 20, 2017

EDGARDO DIAZ DIAZ, Plaintiff,
v.
THE CITY UNIVERSITY OF NEW YORK, et al., Defendants.

          REPORT AND RECOMMENDATION

          GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

         Pro se plaintiff Edgardo Diaz Diaz, a former adjunct lecturer and employee at the City University of New York (“CUNY”), filed this suit against CUNY and a number of its professors and employees alleging claims of discrimination. A prior opinion in this matter, see Opinion Partially Adopting Report & Recommendation, filed Sept. 22, 2015 (Docket # 67) (“Sept. 22 Op.”), dismissed all claims originally pled except for: (1) a claim against John Jay College of Criminal Justice President Jeremy Travis and CUNY for retaliation premised on the non-renewal of Diaz's adjunct faculty teaching positions in April 2011; and (2) a claim against Dr. Edwin Melendez, the director of the CUNY Center of Puerto Rican Studies (“CENTRO”) at Hunter College, and CUNY for retaliation premised on Melendez pressuring Diaz to leave his editorial position at CENTRO and CENTRO's decision not to offer Diaz a teaching position. See Sept. 22 Op. at 24.

         Defendants have now moved for summary judgment on these remaining claims.[1] For the reasons stated below, their motion should be granted.

         I. BACKGROUND

         Both parties have substantially complied with Local Civil Rule 56.1, which requires them to submit short and concise statements of the facts on which there is no genuine issue to be tried. Where Diaz has restated the defendants' 56.1 statement without objection, the Court accepts these facts as undisputed. Otherwise, the following reflects Diaz's version of the facts where relevant and where supported by admissible evidence as well as evidence submitted by the defendants that has not been controverted by plaintiff.

         A. Diaz's Employment Relationship with CUNY

         Diaz served as an adjunct lecturer in two departments at CUNY's John Jay College of Criminal Justice (“John Jay”): the Department of Foreign Languages and Literatures (“FLL”) beginning in the Fall of 2004, and the Department of Latin American and Latino/Latina Studies (“LALS”) beginning in the Fall of 2010. Defs. 56.1 ¶ 1; Pl. 56.1 ¶ 1. He was also employed under contract at CENTRO at Hunter College, CUNY, as CENTRO's “editor in music” for its online journal Voices. Defs. 56.1 ¶ 2; Pl. 56.1 ¶ 2.

         Adjunct faculty are non-tenure-track faculty hired by CUNY's President or the President's designee (who, at John Jay, is the college's Provost) for specific teaching assignments. Defs. 56.1 ¶ 3; Pl. 56.1 ¶ 3. They are appointed or reappointed on a semester-to-semester basis with no contractual expectation that they will be rehired, although for an adjunct who is hired for six consecutive semesters (exclusive of summer terms) within the same department a reappointment is normally made for a full academic year. Defs. 56.1 ¶ 5; Pl. 56.1 ¶ 5; Bowers Decl. ¶ 4. Adjuncts who teach during the spring semester are notified of their reappointment for the following fall in late April of the same year. Bowers Decl. ¶ 4. In most circumstances, the decision whether to appoint or reappoint an adjunct faculty member rests with the Chair of the relevant department. Defs. 56.1 ¶ 4; Pl. 56.1 ¶ 4; Bowers Decl. ¶ 3.

         B. Complaints to the CUNY Graduate School in 2009-2010

         Diaz was also a student in ethnomusicology at the CUNY Graduate School. Pl. Mem. at 7-8.[2] Frustrated with various failed attempts to gain approval of his dissertation proposal, he believed officials at the CUNY Graduate School “to be abusive of their respective positions, delaying his career development and stealing material from original research not related to his work as a student.” Id. at 8. On April 6, 2009, Diaz sent an email to the CUNY Graduate School's Provost, Dr. Chase F. Robinson, to complain about perceived misconduct and unfair treatment at the school. Id.; Email from Edgardo Diaz Diaz, dated Apr. 6, 2009 (attached as Ex. 4 to Pl. Mem.). On January 19, 2010, and April 21, 2010, Diaz sent communications to officials at the CUNY Graduate School making a slew of complaints, including a complaint asserting that he had suffered discrimination at the school “on the basis of his Puerto Rican background.” Pl. Mem. at 9-10; Email from Edgardo Diaz Diaz, dated Jan. 19, 2010 (attached as Ex. 7 to Pl. Mem.); Letter from Edgardo Diaz Diaz to Dr. William P. Kelly, dated Apr. 21, 2010 (attached as Ex. 8 to Pl. Mem.) (“April 2010 Letter”). Diaz does not provide evidence that he sent these communications to anyone at John Jay.

         C. The Montalban Report and Aftermath

         In the Fall 2009 semester, a student in one of Diaz's Spanish 101 classes at John Jay brought a formal complaint against him, stating that the student perceived some comments made by Diaz in class as either sexual innuendo or comments on the student's sexual orientation. Bowers Decl. ¶ 5; Travis Decl. ¶ 5; Charge of Discrimination Form, JJ000021 (attached as Ex. 5 to Pl. Mem.). The complaint was referred to Silvia Montalban, Chair of the Sexual Harassment and Intake Committee and John Jay's Director of Compliance and Diversity and Assistant Counsel for Investigation, who is charged with investigating student complaints of sexual harassment and reporting her findings to the University's President for appropriate action. Defs. 56.1 ¶ 7, Pl. 56.1 ¶ 7. Montalban, after interviewing both the student and Diaz, presented a report to Travis on April 29, 2010, sustaining some of the student's complaints. Defs. 56.1 ¶ 8, Pl. 56.1 ¶ 8; Memorandum from Sylvia Montalban, Esq., dated Apr. 29, 2010 (attached as Ex. B. to Colucci Decl.) (“Montalban Report”).[3] Montalban found that the student credibly stated that Diaz's behavior in class made the student feel uncomfortable, that Diaz admitted to making some of the statements and engaging in some of the behavior the student described (although he did not intend to offend the student), and that Diaz was willing to apologize and to alter his teaching methods to address the concerns. Montalban Report at 2-3. Travis accepted the report's findings, Defs. 56.1 ¶ 8; Pl. 56.1 ¶ 8, but by the time Montalban submitted her report Diaz had already been reappointed to teach in the next academic year, Defs. 56.1 ¶ 9, Pl. 56.1 ¶ 9.

         Travis discussed the report with Provost Jane Bowers on or about May 20, 2010. See Pl. Mem. at 10-11; Email from Jane Bowers, dated May 20, 2010 (attached as Ex. 9 to Pl. Mem.). Bowers found the report against Diaz disturbing, and after reviewing his teaching records and finding mixed reviews and three comments about inappropriate sexual references and vulgarities, concluded that she “did not see any reason to retain Mr. Diaz Diaz as an adjunct in the future.” Bowers Decl. ¶ 8; see Student Evaluations and Comments Concerning Plaintiff, (attached as Ex. F to Colucci Decl.) (“Student Evaluations I”). The student evaluations included the following comments: “I felt he spoke about sex way too much and made me uncomfortable.”; “Very sexual!”; “[He] is often rude and vulgar. From nude scenes in movies to him telling us that he lost his virginity at 26. All is unacceptable.” Student Evaluations I.[4]

         Travis requested further consultation from Montalban and CUNY's General Counsel's office, who offered two options: rescind Diaz's reappointment letter for cause, then pay him for the courses he was scheduled to teach should he file a grievance; or “explicitly state that the report will go in the personnel file, that it can serve as a basis for further action, ” then refuse to reappoint Diaz after the Fall 2010 semester. Email from Sylvia Montalban, dated June 4, 2010 (attached as Ex. 17 to Pl. Mem.) (“Montalban June 4 Email”); see also Travis Decl. ¶ 9; Bowers Decl. ¶ 9; Pl. Mem. at 11-14. Travis chose the latter option, placing the report in Diaz's personnel file - along with a written response Diaz submitted - and also requiring that Diaz take CUNY's online sexual harassment training course. Travis Decl. ¶ 7; Bowers Decl. ¶ 9; Memorandum from President Jeremy Travis, dated June 30, 2010 (attached as Ex. D to Colucci Decl.) (“Travis June 30 Mem.”). Travis told Diaz that the report would “be taken into account in connection with any future personnel action, ” but did not tell Diaz there was a plan to not reappoint him after the Fall 2010 semester. See Pl. Mem. at 15; Travis June 30 Mem. Diaz submitted a written statement and took the online sexual harassment course, as required. Defs. 56.1 ¶ 13; Pl. 56.1 ¶ 13(1).

         As a representative of the school's adjunct faculty, Diaz attended an October 28, 2010, meeting of the John Jay Faculty Senate, where Travis and Montalban discussed John Jay's sexual harassment policy. See Defs. 56.1 ¶ 14; Pl. 56.1 ¶ 14; Pl. Mem. at 23-24; Draft Faculty Senate Minutes # 363, dated Oct. 28, 2010 (attached as Ex. 22 to Pl. Mem.). By that time, Diaz had filed a grievance concerning Montalban's sexual harassment report and Travis' decision to accept it. Defs. 56.1 ¶ 15; Pl. 56.1 ¶ 15; Travis Decl. ¶ 12. During the meeting, Diaz wanted to discuss ways in which the school's focus on sexual harassment cases allowed other areas of the school's anti-discrimination policy, including those focused on national origin, to lag behind. See Pl. 56.1 ¶ 14; Pl. Mem. at 24. Because time constraints did not allow him to develop his thoughts and the meeting's minutes did not include his comments, Diaz sent an email to Travis elaborating on the issue on November 23, 2010. See Email from Jeremy Travis to Edgardo Diaz Diaz, dated Nov. 23, 2010 (attached as Ex. A to Colucci Decl.) (“November 2010 Email”). The email discussed a number of areas, but included a complaint that a “high-ranking officer” in the Music Department had made “inappropriate remarks against Puerto Ricans” and that no action had been taken. Id. at 000124. The email concluded by referring to Diaz's own experience following the student complaint against him, which Diaz characterized as resulting in a “lack of due process.” Id. at 000125. Diaz copied a number of administrators and faculty members on the email, including the Chairs of the FLL and LALS Departments, Dr. Silvia Dapia and Dr. Lisandro Perez. Id. at 000122. Travis responded: “I appreciate your interest in sensitivity training on the topic of sexual harassment. Because you have filed a grievance in a specific matter, however, I will not be in a position to respond to any of the specific scenarios you have presented.” Id.

         D. Diaz's Non-Reappointment to John Jay

         On April 25, 2011, Bowers sent Diaz two letters informing him that John Jay would “not be extending [his] appointment as an Adjunct Lecturer” in the FLL and LALS Departments “beyond the Spring, 2011 semester.” See Letters from Provost Bowers, dated Apr. 25, 2011 (attached as Exs. G & H to Colucci Decl.). The decision not to reappoint him at FLL and LALS was made initially by Department Chairs Dapia and Perez, and was then approved by Bowers. We describe the evidence regarding how each department reached this decision next.

         1. Non-Reappointment to the FLL Department

         Dapia became Chair of FLL beginning in the Fall 2010 semester, after Diaz had already been reappointed for the Fall 2010-Spring 2011 academic year. Defs. 56.1 ¶¶ 18-19; Pl. 56.1 ¶¶ 18-19. Dapia and Diaz had no prior acquaintance before Dapia became Chair. Defs. 56.1 ¶ 19; Pl. 56.1 ¶ 19. In December 2010, at Dapia's suggestion, the FLL Department changed their policy to require that adjuncts have at least a Master's degree in the language they teach or a closely related discipline. Dapia Decl. ¶ 10; see Minutes - Department of Foreign Languages and Literatures, dated Dec. 3, 2010 (attached as Ex. I to Colucci Decl.), at ¶ 10. The parties dispute why Dapia suggested this change. Defendants rely on Dapia's declaration that she was surprised that “anyone of any background who was fluent in the relevant language could be hired to teach it, ” as “[t]his had not been the policy at any institution where [she] had trained or taught in the past.” Dapia Decl. ¶¶ 9-10. Diaz claims this was a pretext, specifically intended to justify his non-reappointment, as he did not possess a Master's degree in Spanish. Pl. 56.1 ¶¶ 20(2)-21(3); Pl. Mem. at 32 (“Retaliation irrefutably played a role in [FLL's] decision to change the Department's academic standards (only for adjunct recruitment, not full-time faculty).”). He suggests that this policy emanated from Bowers. See Pl. Mem. at 30-32. The weekend after Diaz sent the November 2010 Email, Bowers emailed Dapia to ask how many sections Diaz would teach that spring, and stated that “[a]s you begin to schedule for summer and fall, I would be surprised if you had sufficient sections to offer him one.” Emails from Jane Bowers and Silvia Dapia, dated Nov. 27-28, 2010 (attached as Ex. 31 to Pl. Mem.); see also Pl. Mem. at 30 (citing Bowers' Nov. 28 email). As already noted, Bowers has stated that she decided in May 2010 that she did not want Diaz reappointed based on her inquiry into his teaching record following the Montalban Report. Bowers Decl. ¶ 8.

         In April 2011, Dapia recommended that Diaz not be reappointed, along with adjuncts Olga Sanson, Jean Alexandre, and Evelyn Maldonado. Defs. 56.1 ¶ 22; Pl. 56.1 ¶ 21(1).[5] Dapia asserts that the only reason she recommended these adjunct faculty not be reappointed was that they did not meet the new standard requiring that all professors possess relevant Master's degrees. See Dapia Decl. ¶ 12. Bowers approved Diaz's non-reappointment on these grounds, although she also states that she did not believe Diaz should be reappointed on the basis of the Montalban Report and Diaz's classroom performance. Bowers Decl. ¶¶ 9-10, 12.

         2. Non-Reappointment to the LALS Department

         Starting in the Fall 2010 semester, Diaz also taught as an adjunct in LALS. Defs. 56.1 ¶ 26; Pl. 56.1 ¶ 26. Diaz joined LALS the same semester as the Department's new Chair, Perez. Defs. 56.1 ¶ 27; Pl. 56.1 ¶ 27. Diaz had known Perez prior to Perez's appointment as Chair, and regarded their relations as good. Defs. 56.1 ¶ 28; Pl. 56.1 ¶ 28. At the time Perez was hired, the LALS Department also hired three full-time Assistant Professors, “doubling the size of the Department.” Perez Decl. ¶ 4.

         Perez was copied on the November 2010 Email that Diaz sent to Travis. Id. ¶ 14. Perez “skimmed it” but states he “paid no attention to it . . . .” Id. On November 27, 2010, Bowers wrote Perez regarding Diaz, noting that Perez had “no obligation to offer [Diaz] a class this spring.” Emails from Lisandro Perez and Jane Bowers, dated Nov. 27-28, 2010 (attached as Ex. 39 to Pl. Mem.). In a responsive email sent on November 28, 2010, Perez said he had “no interest in assigning Edgardo Diaz a class for Spring 2011, ” but was not comfortable refusing to do so while reappointing the other adjuncts, as Diaz would “conclude that I am acting on the matter that he is currently grieving (of which I am not supposed to have full knowledge) or that I am acting vindictively after the tiff he and I had recently over a grade appeal (something I should not and would not do).” Id. Bowers acquiesced to his concerns, stating, “Okay - you can give him a course for spring then (or maybe it will not run and as you say that would settle the matter another way). But that's it.” Id.; see also Pl. Mem. at 35-36.

         At a point in time not specified in his declaration, Perez reviewed the student evaluations of LALS' faculty - and its adjuncts in particular - as part of a plan to improve the quality of instruction in the Department. Perez Decl. ¶ 5. The average student rating for LALS faculty on a 1.0 to 5.0-point scale was 4.54, which Perez considered excellent. Id. ¶ 10; Student Evaluation Scores for “LAS” for Fall 2010, dated Mar. 25, 2011 (attached as Ex. L to Colucci Decl.). By contrast, Diaz's scores for a course he taught in Fall 2010 ranged from the high 2s to the high 3s, with an average rating of 3.103, which Perez considered “not very good.” Perez Decl. ¶ 10; Student Evaluation Scores for Edgardo M Diaz Diaz, Fall 2010, Course ETH 125, dated Mar. 25, 2011 (attached as Ex. L to Colucci Decl.).[6]

         Diaz, like all adjuncts at John Jay, was subject to periodic classroom observations by a full-time faculty member. Defs. 56.1 ¶ 33; Pl. 56.1 ¶ 33. Diaz's Spring 2011 observation was conducted on April 4, 2011, by Isabel Martinez, a new hire and full-time faculty member whom Diaz did not previously know. Defs. 56.1 ¶ 34-35; Pl. 56.1 ¶ 34-35. Martinez submitted an unfavorable report on May 4, 2011 - after Diaz had already received the letters informing him he was not being reappointed. Defs. 56.1 ¶ 35; Pl. 56.1 ¶ 35; Observation of Teaching, dated May 4, 2011 (attached as Ex. M to Colucci Decl.); Letters from Provost Bowers, dated Apr. 25, 2011 (attached as Exs. G & H to Colucci Decl.). Diaz disagreed with the report, met with Perez and Martinez to discuss it on May 23, 2011, and submitted a written rebuttal. Defs. 56.1 ¶ 36; Pl. 56.1 ¶ 36; “Written response to Dr. Isabel Martinez's April 4, 2011 observation of my ETH 125.14 class, with comments about related May 23rd 2011 post-observation conference” (attached as Ex. N to Colucci Decl.). Perez had not used in-class observations in his previous academic positions and did not generally give them much weight in evaluating teachers. Perez Decl. ¶ 11. He had already decided not to reappoint Diaz before receiving Martinez's report. Defs. 56.1 ¶ 38; Pl. 56.1 ¶ 38.

         There is contemporaneous evidence that Perez's decision not to reappoint Diaz was made prior to April 22, 2011, because on that date Perez sent an email to Bowers stating that he anticipated that Diaz would “come to my office for an explanation of why he has not been reappointed.” See Emails from Lisandro Perez and Jane Bowers, dated Apr. 22-23, 2011 (attached as Ex. 32 to Pl. Mem.). Perez's email notes that Diaz's tenure of only one year with LALS was not “really the explanation for why he is not being re-appointed, ” and that “this is not just my decision (although I concur with it) . . . .” Id. Perez wrote: “If, therefore, I should give him a meaningful and truthful reason [for his non-reappointment], then I need some guidance because I don't want to say what would get us into trouble with the union.” Id. In response, Bowers suggested that Perez could give any number of reasons to Diaz, including that Perez did not yet have sufficient knowledge of Diaz's teaching effectiveness; that the department's course needs were changing, and that Diaz's “particular expertise is no longer in great demand and will be in even less demand going forward”; and that Perez's need for adjunct faculty had diminished as the size of his department's full-time faculty had grown. Id.

         On April 26, 2011, Perez sent the four LALS adjunct faculty who were hired for the first time in the Fall 2010 semester letters stating that he had made a “provisional decision not to reappoint them, but that [he] would revisit the decision later, when [he] had more of a basis for it.” Perez Decl. ¶ 7; see also Email from Lisandro Perez, dated Apr. 26, 2011 (attached as Ex. K to Colucci Decl.). Perez acknowledged that he knew Bowers did not want Diaz reappointed as a result of the Montalban Report, but states that her view had no influence on him, and that “[i]f, based on [his] review, [he] decided to reappoint Mr. Diaz Diaz, [he] was prepared to resist any action by the Provost to overrule [his] decision.” Perez Decl. ¶ 8. Nevertheless, Perez ultimately decided that he would not reappoint Diaz based on Diaz's “poor evaluation scores and the reduced need for adjuncts in the Department owing to the new full-time hires.” Id. ¶ 13. In an internal email sent to Bowers and others at John Jay on April 19, 2011, Perez stated that some of the adjuncts he decided not to reappoint “may be hired in the Fall depending on student evaluations, availability of courses, and the Spring 2011 observations, not all of which are [available] at this time, ” but “[a]s the Provost has indicated, [Diaz] is in any case a non- reappointment.” Email from Lisandro Perez, dated Apr. 19, 2011 (attached as Ex. 42 to Pl. Mem.). Bowers accepted the decision not to rehire Diaz. Bowers Decl. ¶ 12. Travis did not speak to Perez about Diaz's reappointment or non-reappointment. Travis Decl. ¶ 13; Bowers Decl. ¶ 12; Perez Decl. ¶ 9. Travis had, however, discussed Diaz's non-reappointment with Bowers in June 2010 as a potential way to address the concerns the Montalban Report raised. See Email from Jeremy Travis, dated June 5, 2010 (attached as Ex. 17 to Pl. Mem.); Pl. Mem. at 12-14.

         E. The Equal Employment Opportunity Commission (“EEOC”) Complaint

         On May 10, 2011, Diaz filed a complaint against CUNY with the EEOC. See Letter from Edgardo Diaz Diaz to EEOC, dated May 10, 2011 (attached as Document 2-1, *7, to Complaint for Employment Discrimination, filed Mar. 26, 2013 (Docket # 2) (“Compl.”)); Letter from EEOC to Edgardo M. Diaz, dated June 9, 2011 (attached as Document 2-1, *8-9, to Compl.).[7] He emailed a copy of this complaint to Arlene Torres, the director of CUNY's Latino Initiative Program under CENTRO. See Email from Edgardo Diaz Diaz, dated June 7, 2011 (attached as Ex. 70 to Pl. Mem.) (translated from Spanish); Transcript, Deposition of Edgardo Diaz Diaz, dated Aug. 17, 2016 (attached as “Pltf's Dep. Extracts” to Colucci Decl.) (“Diaz Dep.”), at 92-93.

         F. Diaz's Work at CENTRO and his Application for ...


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