Opinion
94 Civ. 0253 (RWS)
April 4, 2003
DIANE SANK, Plaintiff, Pro Se, Englewood Cliffs, N.J.
HONORABLE ELIOT SPITZER, Attorney General of the State of New York, STEVEN L. BANKS, Assistant Attorney General, New York, NY, for Defendants.
OPINION
Defendants City University of New York ("CUNY") and City College of the City of New York ("CCNY") (collectively the "Defendants") have moved pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rule 56.1 to dismiss the remaining claims in the complaint of plaintiff pro se Diane Sank ("Sank"). Sank's only remaining claims, for which she has requested a jury trial, are filed pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), codified at 42 U.S.C. § 2000e et seq., alleging certain acts of retaliation taken against Sank after she filed a complaint of discrimination with the New York City Human Rights Commission and occurring after November 21, 1991, the effective date of the 1991 amendment to the Civil Rights Act. In addition, Sank's opposition will be treated, in part, as a motion pursuant to Rule 15(a) of the Federal Rules of Civil Procedure to amend her complaint to include approximately twenty-three additional acts of purported retaliation that occurred from late November 1991 to March 1995.
A bench trial has already been held on Sank's claims arising prior to November 21, 1991. Permission was granted at the close of the bench trial for the Defendants to file the instant motion because Sank did not specifically raise the claims that are the subject of the instant motion until May 2002, well after the Defendants had moved for summary judgment for the first time. Before putting the judiciary and the parties to the expense of the jury trial, it was determined that the claims should first be tested in a summary judgment motion if the Defendants so chose.
For the following reasons, Sank's motion to amend is denied, and the Defendants' motion is granted. As a result, all of Sank's remaining claims are dismissed.
Prior Proceedings
On October 21, 1988, Sank filed a charge of discrimination, numbered "EM00457-8/24/88-DE" with the New York City Commission on Human Rights ("NYCCHR"), alleging that Bernard Harleston ("Harleston"), President of the City College of the City University of New York ("CCNY"), removed Sank as chairperson of the Anthropology Department on April 27, 1988 because of gender discrimination. Sank, a white female, has been employed as a full professor of anthropology at CCNY since 1968. Sank amended her charge on June 27, 1989, to add a claim that her removal as chairperson was a result of racial discrimination.
On August 8, 1989, Sank filed a second amended charge with the NYCCHR alleging that CCNY had retaliated against her for her charge of discrimination by (1) denying her request for sabbatical leave and (2) removing the contents of her research laboratory without proper notice to her.
Sank filed a third amended charge on March 3, 1990, alleging that the chairperson of the Anthropology Department had threatened, in September 1989, to remove her research computer in retaliation for her charge of discrimination.
The NYCCHR issued a seventeen-page Determination and Order After Investigation on January 22, 1993. The determination concluded that there was no probable cause to believe that CUNY or its employees had engaged in the unlawful discriminatory and retaliatory conduct alleged in Sank's charge. The Equal Employment Opportunity Commission adopted the conclusions of the NYCCHR and issued Sank a Right-to-Sue letter on October 19, 1993.
Sank claims that a determination of "probable cause" was found but fails to point to any such determination in her exhibits. The determination attached as an exhibit to the Defendants' declaration states that no probable cause was found. See Determination of January 23, 1993 at 1 ("After investigation, the Law Enforcement Bureau ("Bureau") of the Commission has determined that there is no probable cause to believe that respondents engaged in the unlawful discriminatory practices charged in the complaint and amended complaints."); id. at 11 ("[N]o evidence was uncovered to support [Sank]'s allegation that she was removed as chairperson of the Anthropology Department because her sex, race and color."); id. at 12-16 (discussing and finding no evidence to support Sank's claims of retaliation).
Sank filed her complaint in this Court on January 18, 1994, and an amended complaint (the "Complaint") was filed on May 27, 1994. After several iterations of motion practice, Sank's complaint was winnowed down to certain claims of discrimination and retaliation in violation of Title VII. See Sank v. City University of New York, 219 F. Supp.2d 497 (S.D.N.Y. 2002). For those actions alleged to have occurred prior to November 21, 1991, the effective date of the 1991 amendment to the Civil Rights Act providing the right to a jury trial for Title VII plaintiffs, a six-day bench trial was held. At the conclusion of the trial on October 7, 2002, an opinion was issued from the bench, concluding that there was insufficient evidence to support Sank's discrimination and retaliation claims arising from her removal as department chairperson, the relocation of her laboratory, and the denial of her request for sabbatical leave. Sank has filed a motion to reconsider these findings, which is presently returnable on April 16, 2003.
Thus, the only remaining claims in this action are Sank's allegations of retaliatory actions occurring after November 21, 1991, and for which she is entitled a jury trial. Two specific claims were made part of this action through a motion for reconsideration Sank filed in May 2002. Sank v. CUNY, 94 Civ. 253, 2002 U.S. Dist. LEXIS 14032, at *17-18 (S.D.N.Y. July 31, 2002).
In her motion for reconsideration, for the first time Sank specifically alleged that CUNY retaliated against her by (1) denying her request to participate in Academic Advising in lieu of teaching a course in the Spring 1993 semester, and (2) failing to correct an error in the CCNY Fall 2001 Schedule or Classes that listed prerequisites for the course that were not, in fact, required. In her instant papers, Sank has submitted an additional twenty or so allegations of retaliatory conduct, which shall be discussed, infra.
Related to this claim is Sank's assertion that the mis-described class was precipitously cancelled due to under-enrollment in August 2001.
The Defendants filed the instant motion on December 4, 2002, and Sank responded on February 5, 2003. The Defendants submitted their reply on March 19, 2003, at which time the motion was considered fully submitted.
Facts
As befits a summary judgment motion, the following facts are drawn from the parties' Rule 56.1 statements. It should be noted that Sank, who received prior notice that she would be required to reply to CUNY's Rule 56.1 statement, failed to supply adequate evidentiary support for most of her assertions in her Rule 56.1 statement in response to the Defendants' Rule 56.1 statement. Where Sank did not provide a specific reference to an exhibit or other piece of admissible evidence, her assertions were discounted, except where her assertions could be supported by the documents relied upon by the Defendants in the paragraphs with which Sank took issue. E.g., Millus v. D'Angelo, 224 F.3d 137, 138 (2d Cir.2000) (per curiam) (affirming summary judgment where plaintiff failed to deny key allegations in defendant's Local Rule 56.1 statement). Because Sank was served with proper notice of the local rule, consisting of a separate, two-page notice, her pro se status does not insulate her from this result. E.g., Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996) (affirming summary judgment against pro se plaintiff who was provided with notice of Local Rule 56.1 requirements, but nonetheless failed to comply with rule).
Sank's Course Assignments in Spring 1993
At a meeting of the Anthropology Department on September 17, 1992, Professor Fremont Besmer ("Besmer") was elected to serve as acting chairperson. An election was necessary because Professor Carol Laderman ("Laderman"), the sitting department chairperson, was unable to perform the duties of the office following a stroke in August 1992.
As acting chairperson, Besmer was responsible for preparing the Spring 1993 teaching schedules for faculty in the Anthropology Department. In conjunction with that responsibility, he received a memorandum from Sank dated September 24, 1992, in which Sank requested that she be assigned in the Spring 1993 to teach two courses, ANTH 290 D and ANTH 101 E. In addition, she asked that she be assigned to Academic Advising or, if she could not get that assignment, that she be assigned to ANTH 101 F. Prior to this time, Sank had consistently received an Academic Advising assignment for more than ten years.
Sank claims without citing any evidentiary support that up until the Spring of 1993, she received an assignment to Academic Advising as a pro forma matter. It is true that in the October 2, 1992 memorandum authored by Sank and cited by the Defendants, Sank claims to have been a part of the program for "10+ years." The Court will accept the fact that Sank had formerly received the assignment for more than ten years as an uncontested fact, but not the fact that she had received that position as a matter of course for all of that time. For the basis of this motion only, however, such inference can be drawn from that fact that she had consistently received the assignment for more than ten years.
Academic Advising is an academic support program in which faculty members at CCNY can participate with the approval of their department chairperson, on the condition that their participation does not interfere with their primary responsibility to teach. Until the 1992-93 academic year, faculty members participating in Academic Advising received credit towards their teaching obligation for each semester that they participated in the program. In the 1992-93 academic year, because of a financial exigency, CCNY reduced by half the credit granted for participation in Academic Advising, i.e., a faculty member would have to participate in Academic Advising for two semesters in a single academic year to receive a one-course reduction in his or her obligation. This change in policy affected all faculty in all academic departments.
Sank does not contest this assertion, but does allege that only two or three faculty were involved in Academic Advising and thus Sank, as one of them, bore the brunt of the change in policy. Sank does not provide any evidentiary support for this assertion, which, in any case, does not present a genuine issue of fact with regard to whether the change affected all professors in the program instead of only Sank.
In a memorandum to Besmer dated October 2, 1992, Sank reiterated her request to be assigned to ANTH 290 D, ANTH 101 E and to Academic Advising, or, if Academic Advising were unavailable, to be assigned to ANTH 101 F as her third course.
Besmer scheduled Sank to teach ANTH 290 D, ANTH 101 E and ANTH 101 F in the Spring Semester. The Defendants claim that Besmer could not approve Sank's request to participate in Academic Advising in lieu of teaching ANTH 101 F because (1) there was insufficient funding to hire adjunct faculty to cover ANTH 101 F, and (2) CCNY's change in policy reducing available release time for faculty members who participated in Academic Advising meant that Sank would have had to teach a third course regardless of whether or not she participated in Academic Advising. Sank states that she was unaware of the change of policy at that time.
Sank also questions the timing of the administration's budget short fall and decision to change the Academic Advising policy. Sank has not supported her speculations with any evidence and as such has failed to raise a genuine issue of fact in this regard.
The Defendants allege that Sank's discrimination charges with the NYCCHR and her grievance challenging Besmer's election as acting chairperson did not affect the teaching schedule Sank received for the Spring 1993 semester.
In response, Sank points to her "replies" to declarations of two witnesses for the defendants: Besmer and Ilona Anderson ("Anderson"), the former CCNY Dean for Faculty Relations. She does not point to any specific rebuttal in these replies, which are primarily based on speculation and without any evidentiary support.
A review of these replies does not reveal what material issue of fact Sank was trying to raise, except perhaps to assert that Besmer was aware of Sank's actions at the time he made the decision regarding her course load. Whether such fact, if true, would suggest retaliation is a matter of law, which as discussed later, is insufficient to avoid summary judgment on the issue of pretext.
In January 1993, at the start of the Spring 1993 semester, Laderman resumed her duties as chairperson of the Anthropology Department. Laderman approved Sank's request to participate in Academic Advising in the Spring 1993 semester. In a letter dated February 11, 1993, Ilona Anderson, then the CCNY Dean for Faculty Relations ("Anderson"), notified Sank that she was not entitled to additional release time for her participation in the advising program.
In a letter dated March 1, 1993, Sank told Anderson that her assignment to Academic Advising for Spring 1993 had resulted in a contractual overload, i.e., an assignment to more than 21 credit hours in a single academic year. On March 29, 1993, Sank filed a formal grievance alleging a contractual overload and requesting "[p]ayment for excess workload."
On April 16, 1993, Anderson met with Sank, Laderman and Sank's union representative, Professor Al Bachman. At that meeting, Sank agreed to resign from Academic Advising and withdraw her grievance in exchange for additional compensation for the fifteen hours she had worked in Academic Advising in Spring 1993.
Sank disputes this fact by referring generally to her "reply" to Anderson's declaration. A review of that document, which as discussed above is largely based on personal knowledge or speculation without any evidentiary support, does not reveal the basis of her dispute.
During the discussions to resolve Sank's grievance, her previous charges of discrimination were not mentioned or otherwise discussed. Anderson did not consider Sank's discrimination claims in working to resolve Sank's grievance.
Sank's union contract did not permit faculty to assert grievances based on discrimination claims filed outside of the CUNY process.
As part of an agreement to resolve Sank's grievance, she received additional compensation for the time she worked in Academic Advising in Spring 1993.
The Error in the Fall 2001 Schedule of Classes The Provost's Office at CCNY is responsible for preparing and publishing class schedules and course catalogs for use by the college community. The process involved in preparing a schedule of classes takes several months to complete and requires the participation of the Registrar's office, deans and department chairpersons.
The Provost's office requests from the deans a schedule of classes to be offered by their respective divisions in the following semester. In turn, the deans request from each chairperson a schedule of classes to be taught by his or her academic department. In response, the department chairpersons develop preliminary class schedules, identifying which courses will be taught, the number of sections to be taught, meeting time and assigned faculty. The preliminary class schedules do not list prerequisites.
The Provost's office transmits the class schedules received from the academic departments to the Registrar's office, which codes the schedule into the Student Information Management System ("SIMS") and prepares a revised schedule of classes for the entire college. The revised schedule lists for each course any prerequisites or co-requisites obtained from the SIMS database maintained by the Registrar's office. The revised schedule of classes is intended to, as much as possible, match the final schedule of classes supplied to students.
When completed, the Provost's office sends a copy of the schedule of classes to the deans and departmental chairpersons for their review and approval. Thereafter, the Registrar's office makes final corrections to the schedule of classes, which is then submitted to a commercial printer to be published in booklet format. After the final schedule of classes is printed and delivered to campus, it is distributed to students prior to the start of registration.
Mistakes are discovered every year in the printed schedule of classes following its publication and distribution. When an error is reported and verified by the Provost's office in a printed schedule of classes, a correction is made in the SIMS database maintained by the Registrar's office, a correction is posted in the Registrar's office, and the schedule of classes posted on the college website is updated to include the correct information. Given the frequency of errors in the printed schedule of classes, students are generally aware that the schedule of classes may be updated and corrected after its publication, and that they should check with the Registrar's office or the college website for the latest course information.
Sank speculates that students were not aware that they should look to these sources for potential errors. She fails to provide specific, admissible evidentiary support for this belief.
For the Fall 2001 Schedule of Classes, the revised schedule of classes was sent to deans and departmental chairpersons in March 2001 and sent to the printer in April 2001.
Sank contests that this procedure could not have been followed in the spring of 2001 based on her belief that if her departmental chair had received the draft, the mistake would have been corrected. Such supposition is insufficient to raise a genuine issue of material fact. She also recites the hearsay statement from her chairperson, who denied having received the list. The hearsay statement is not admissible and cannot raise a genuine issue of fact.
In May 2001, it was brought to the attention of Deputy Provost Joseph Barba ("Barba") that the Fall 2001 Schedule of Classes erroneously listed a mathematics prerequisite for one of Sank's courses, ANTH 29500. The Course Catalog listed the following comments under ANTH 29500:
The Defendants claim that Sank contacted Barba directly; Sank claims she did not know that Barba was the person in charge of overseeing such changes and so would not know to contact him. The fact that changes were made in May 2001, however, shows that Barba was contacted in some manner, even if not by Sank directly. Therefore, the fact that Sank did not know Barba was in charge of the correction process does not raise a genuine issue of fact as to whether he was contacted in May 2001.
PREREQ: Math 10100 or MATH 10700 or MATH 10500 CREDIT NOT GIVEN FOR BOTH ECO 29500 AND MATH 17300
Barba verified the error and determined that the mathematics prerequisite for ECO 29500, an economics course, had erroneously been listed under ANTH 29500. The Defendants hypothesize that the erroneous listing occurred due to an input error by temporary clerical staff in Spring 2000 when CCNY was upgrading the SIMS database. In Fall 2000 and Spring 2001, numerous courses in the SIMS database were discovered to have erroneously listed prerequisites. The input error for ANTH 29500 was not discovered prior to the printing of the Fall 2001 course catalog because that was the first semester that the course had been offered following the upgrade.
Sank again speculatively posits why such mistake could not have been made, including the fact that the Economics courses are listed many categories away from the Anthology courses and the fact that the Economics courses should be listed by numbers without two zeros on the end, i.e., ECO 295, and so the mistake should not have been made. These speculations are only that and are insufficient to raise a genuine issue of fact.
Barba then directed Virginia Barberesi in the Registrar's office to remove the mathematics prerequisite from the course in the SIMS database so that students would be permitted to register for ANTH 29500. In addition, he had CCNY's website updated so that ANTH 29500 was correctly described as having no prerequisites. A correction was also posted in the Registrar's office. This procedure was completed by May 8, 2001, before the start of registration on May 14, 2001. Registration for the fall semester continued through the end of August 2001.
The document on which the Defendants rely to show that the change was made reveals that the prerequisite of taking one of three mathematics courses was deleted from the listing. Sank claims that the administration failed to delete all the prerequisites and that some remained in place after this action. She does not provide any evidentiary support for this assertion and therefore does not establish a genuine issue of material fact in this regard. Indeed, the page from the course catalog that she includes as an exhibit vitiates her argument: the catalog lists as a prerequisite that a student have taken one of three mathematics courses (the three that were deleted on May 8, 2001 according to the administration's printout) and then states that a student who has taken MATH 17300 cannot get credit for taking ECO 29500, or vice versa. That statement does not establish a prerequisite but states a condition of taking ECO 29500, that one may not also get credit for MATH 17300. The latter line supports Barba's conclusion that the prerequisites for ECO 29500 were mistakenly appended to ANTH 29500.
At the time Barba dealt with the error, he had no knowledge of Sank's charges of discrimination or the existence of this litigation. His response was identical to his response to other complaints of erroneously listed prerequisites in the schedule of classes.
Sank states that she "doubts" that Barba had no knowledge of her complaints because as an administrator, he should have been privy to the knowledge. Such speculation in the absence of any evidentiary support does not create a genuine issue of material fact.
By letter dated May 23, 2001 (after the problem was corrected), Sank informed CCNY President Stanford A. Roman Jr. of the error in the printed catalog and asked for a complete investigation thereof. On September 4, 2001, she filed a grievance related to the error, in addition to other concerns.
CCNY requires elective courses, such as ANTH 29500, to have a minimum enrollment of ten students. ANTH 29500 was cancelled for the Fall 2001 semester on August 22, 2001, one day prior to the close of regular registration, at which time the class had three students enrolled. On August 22, 2001, two other anthropology courses — ANTH 24600 and ANTH 24900 — had enrollments of seven and five students, respectively. The Dean of Social Sciences, in consultation with the Anthropology Department chairperson, decided to permit these courses to remain open in anticipation that they would enroll a minimum of ten students.
By the end of late registration on August 30, 2001, ANTH 24600 had eleven students registered and ANTH 24900 had nine students registered. Subsequently, in September 2001, two additional students registered in ANTH 24900, bringing its total enrollment to eleven students.
Sank's salary was unaffected by the cancellation of ANTH 29500. Sank contends that she was adversely affected, however, because (1) she was told four days before the fall semester that the class was cancelled, so that she had already substantially completed her preparation for the class; (2) she was forced to teach an additional class that was outside the field of Anthropology and that she had never before taught in order to make up for the cancelled class in the Spring 2002; (3) the fact of cancellation was put in her folder as an "adverse/negative" teaching record; and (4) the cancellation was disincentive for students to enroll in ANTH 29500 when next it was offered.
Sank's Other Allegations of Retaliatory Conduct
For the first time in her opposition papers, Sank has specified a series of actions that she claims were retaliatory and that occurred after November 21, 1991. These allegations were not part of her Rule 56. 1 statement. In light of the length and breadth of these charges, they will be summarized below as they appear in an exhibit to Sank's opposition papers. It should also be noted that the "date" of the action is often times demarcated by the date on which Sank responded to the alleged adverse action, such as by writing letters or filing grievances.
Sank did refer to specific exhibits to provide an evidentiary basis for her claims. The organization of the exhibits was such, however, that it was necessary at times to leaf through numerous documents before reaching the one to which Sank apparently referred.
Sank claims to have received the memoranda after November 21, 1991.
As evidence for this "action," Sank cites only to a FOIL request seeking information in preparation for "A Grievance Concerning Faculty Required to Serve as Advisors to Students During Winter Intercession." The document does not make clear that Sank alone suffered this hardship.
This allegation appears to be alleged as against NYCCHR, as it is not clear how the Defendants were supposed to be liable for the NYCCHR's purported inaction.
Because the instant motion deals with Sank's request to be assigned to Academic Advising in the Spring of 1993, she has actually only sought to amend her complaint to add 11 new claims of retaliation.
DISCUSSION I. Standard of Review
Rule 56(e) of the Federal Rules of Civil Procedure provides that a court shall grant a motion for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits . . . show that there is no genuine issue as to material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Silver v. City Univ., 947 F.2d 1021, 1022 (2d Cir. 1991). "The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law." Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995). In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir. 2002).
"The salutory purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation." Nicastro v. Runyon, 60 F. Supp.2d 181, 183 (S.D.N.Y. 1999) (citing Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)). Greater caution must be exercised, however, in granting summary judgment in employment discrimination cases where the employer's intent is genuinely in issue. Belfi v. Predergast, 191 F.3d 129, 135 (2d Cir. 1999). This is so because "[e]mployers are rarely so cooperative as to include a notation in the personnel file that the [action complained of] is for a reason expressly forbidden by law." Bickerstaff v. Vassar College, 196 F.3d 435, 448 (internal quotation marks and citation omitted; brackets in the original). But even where an employer's intent is at issue, "a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).
In addressing the present motion, the Court is mindful that the plaintiff is proceeding pro se and that her submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers. . . .'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). The pleadings of a pro se plaintiff should be read "liberally" and interpreted "to raise the strongest arguments 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)). Nevertheless, the Court is also aware that pro se status "`does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotations omitted).
II. Law of the Case Does Not Prohibit This Motion
Sank first argues that the "law of the case" should bar the Defendants from bringing this motion.
The law of the case doctrine "`posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'" Arizona v. California, 460 U.S. 605, 618 (1983). Application of this doctrine is discretionary "and does not limit a court's power to reconsider its own decisions prior to final judgment." In re Crysen/Montenay Energy Co., 226 F.3d 160, 165 n. 5 (2d Cir. 2000), cert. denied, 532 U.S. 920 (2001) (quoting Sagendorf-Teal v. Co. of Rensselaer, 100 F.3d 270, 277 (2d Cir. 1996)). See Aramony v. United Way of Am., 254 F.3d 403, 410-11 (2d Cir. 2001) (rejecting law of the case argument because the court had not yet decided the issue and in any event the doctrine is discretionary).
The issue of whether the Defendants are entitled to summary judgment on the retaliation claims arising from Sank's course assignments in Spring 1993, the Defendants' response to the error in the Fall 2001 Schedule of Classes and the other, newly specified claims discussed above has not yet been decided. The Defendants' previous motion for summary judgment, dated April 13, 2001, addressed only those claims raised in Sank's NYCCHR charge and in the Amended Complaint. Indeed, Sank did not specify the two particular actions regarding her course assignments and the error in the schedule of classes until she moved for reconsideration in May 2002.
As noted by the Defendants, the Fall 2001 course catalog had not even been published at the time they filed their original summary judgment motion.
On September 26, 2002, the Court denied the Defendants' motion that had sought dismissal of the retaliation claims on jurisdictional grounds. Transcript at 3. The Court did not, however, decide the Defendants' entitlement to summary judgment based on the two specified remaining claims. In addition, because the Defendants were specifically invited to make the instant motion, this Court will in any case exercise its discretion to hear the motion. As a result, Sank's argument to deny the claim based on the "law of the case" doctrine is denied.
The Defendants argued that the actions alleged by Sank in her motion for reconsideration were not reasonably related to those in her charge of discrimination and thus they should be dismissed from the action.
A response is necessary, however, to Sank's assertion that the Defendants are somehow trying unfairly to take away her right to a jury trial, which attaches to any of her claims that occurred after the effective date of the 1991 Civil Rights Act. Sank only has a "right" to a jury trial if her claims of retaliation occurring after November 21, 1991 are viable. The Defendants also have a right to attempt to show that her claims are not viable, i.e. that they will not survive a motion for summary judgment, before being forced to submit to a jury trial and its concomitant costs. Indeed, it would be a waste of judicial resources if all claims were allowed to go to trial without first being tested by summary judgment. Therefore, the Defendants are merely exercising their right to attempt to show that Sank's claims are not viable and that a trial is therefore not necessary. The Defendants presumably would have done so almost two years ago in their original summary judgment motion if Sank had clarified that her allegations of retaliatory actions had extended beyond those listed in her charge and amended complaint.
III. Sank's Claims of Retaliation
The Defendants first argue that Sank should not be permitted to include her newly specified claims of retaliation in her complaint and next argue that the previously identified claims fail because Sank has failed to present a material issue of fact showing a causal connection between the action and the protected activity and showing that the Defendants' legitimate, non-discriminatory reasons were pretextual.
A. New Claims
Sank has alleged approximately 23 "new" acts of retaliation. Of those, at least seven of the alleged acts are interrelated with the previously established claim of Sank's complaints about her Spring 1993 course schedule and will be incorporated in the discussion of that claim. Sank's inclusion of the other acts will be treated as a motion to amend her complaint to include those acts and analyzed under the rubric of Rule 15(a) of the Federal Rules of Civil Procedure.
These are the actions complained of that occurred on June 18, 1992; September 24, 1993; October 2, 1992; October 19, 1992; Dec. 17, 1992 and Feb. 11, 1993; March 1, 1993; and March 15, 1994.
Rule 15(a) provides that the district court should freely grant leave to amend the pleadings. Fed.R.Civ.P. 15(a). The amendment should be permitted absent evidence of circumstances such as undue delay or bad faith, undue prejudice to the opposing party or futility. Foman v. Davis, 371 U.S. 178, 182 (1962); see also Jones v. New York State Div. of Military and Naval Affairs, 166 F.3d 45, 50 (2d Cir. 1999) (affirming district court's denial of leave to amend due to futility of amendment). Present here is evidence both of undue delay and of futility.
First, Sank's allegations start with actions occurring right around November 21, 1991 and end with an action on March 27, 1995. Thus, Sank is now attempting to amend her complaint to add for the first time actions that occurred from eight to more than eleven years ago. Moreover, she is doing so after the Defendants have already filed two motions for summary judgment and after a bench trial has already been held on claims occurring prior to November 21, 1991. This is classic case of undue delay. Sank should have raised each of these allegations in her motion to reconsider this Court's decision holding that Sank did not have a right to a jury trial. Thus, the Defendants would have had the opportunity to respond to them in this summary judgment motion.
Instead, if the allegations were to be admitted, the Defendants would certainly have to have the opportunity to file a third motion for summary judgment against the new claims. In addition, the fact that Sank's list of actions stops at 1995 raises the spectre that when next the Defendants file a summary judgment motion, Sank will append in opposition yet another list of alleged retaliatory actions running from 1995 to whatever the filing date of those papers are. As noted in earlier opinions, it is time for this case to come to a halt. Sank has been given every opportunity to make her case. Her pro se status will only excuse so much; raising claims for the first time eight to eleven years after they occurred — and at extremely opportune timing in order to preserve her claim — is not a thing to be easily excused.
It is true that the Defendants had the opportunity to reply to these allegations in their reply memorandum. It was unnecessary for them to conduct the necessary investigation, research and presentation of the facts, however, if their current argument succeeds that the allegations should not be added to the Complaint. Therefore, they have not had a proper opportunity to respond to the allegations.
In any case, the claims are futile. A Title VII retaliation claim is analyzed under the rubric of McDonnell Douglas. Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995). First, in order to make out a prima facie case of retaliation, a plaintiff must establish that (1) she engaged in protected activity; (2) defendants were aware of the activity; (3) she was subjected to an adverse employment action; and (4) there is a causal connection between the protected activity and the adverse employment action. Gordon v. New York City Bd. of Ed., 232 F.3d 111, 116 (2d Cir. 2000); Quinn v. Green Tea Credit Corp., 159 F.3d 759, 768-69 (2d Cir. 1998). The Second Circuit has held that a close temporal relationship between the protected activity and an employer's adverse actions can be sufficient to establish causation. Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002) (citing Cifra v. General Elec. Co., 252 F.3d 205, 217 2d 29 Cir. 1998) ("The causal connection needed for proof of a retaliation claim can be establish indirectly by showing that the protected activity was closely followed in time by the adverse action.") (internal quotation marks omitted)). For mere temporal proximity to establish causality, the intervening period must be "very close." Clark Co. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 149 L.Ed.2d 509, 121 S.Ct. 1508 (2001).
If the plaintiff establishes a prima facie case of retaliation, the defendant may articulate a legitimate, non-retaliatory reason for its actions. Id. at 768. Finally, if the defendant does so, the plaintiff must prove that the proffered reason is merely a pretext for retaliation. Id. at 769.
As an initial matter, the majority of Sank's newly alleged claims are not even adverse employment actions. For instance, she cites to several memoranda telling her to attend a meeting about Sank's need for laboratory space, to the fact that the union would not join her in one of the many grievances against CUNY documented in her papers and even to the fact that the NYCCHR apparently never responded to one of her allegations. These are not adverse actions. The only claims that could be potentially considered "adverse actions" are: (1) the denial of Sank's request in November 1993 to receive three credits for teaching two courses with a total enrollment of 95 students; (2) the fact that Sank was again denied an assignment to Academic Advising after her request in April 1994; and (3) purported maneuvering by the Anthropology Department and Chairperson to avoid Sank's secession to the department's executive committee in March 1995.
To sustain an adverse employment action, a plaintiff must "endure a `materially adverse change' in the terms and conditions of employment.'" Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000). In order for the action to be "`materially adverse,' a change in working conditions must be `more disruptive than a mere inconvenience or an alteration of job responsibilities.'" Id. (quoting Crady v. Liberty Nat'l Bank and Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir. 1993)). A "`material adverse change' is one that `has an attendant negative result, a deprivation of a position or an opportunity.'" Campbell v. Grayline Air Shuttle, Inc., 930 F. Supp. 794, 802 (E.D.N.Y. 1996) (citing Medwid v. Baker, 752 F. Supp. 125, 136-37 (S.D.N.Y. 1990)). While adverse employment actions extend beyond readily quantifiable losses, "not everything that makes an employee unhappy is an actionable adverse action." Phillips v. Bowen, 278 F.3d 103, 117 (2d Cir. 2002) (stating that employee's "trivial complaints about an unpleasant working environment" do not constitute adverse employment actions).
With regard to her claim that she should have received three credits for two classes with a total enrollment of 95 students, Sank was informed that the general rule is that an enrollment of 80 or more students is required for a class to qualify for two credits. Memorandum from Dean Jeffrey Rosen, at 1 (Nov. 16, 1993). The action occurred years after Sank filed her latest charge of discrimination and therefore Sank cannot establish a causal connection by temporal proximity. Further, she has not provided any direct evidence of retaliation. Therefore, this claim would fail at the outset as Sank has not made her prima facie case.
In any case, Sank has not presented any evidence that others who were similarly situated were treated differently when they taught a class of less than 80 students and sought to receive two credits for it. It is noteworthy that, on May 5, 1994, the union declined to join Sank in a grievance, which she had filed regarding this allegation on March 15, 1994. It thus appears that Sank will be unable to meet her eventual burden of proving pretext.
The second claim is that Sank was again denied an Academic Advising position for the Spring of 1995. On April 7, 1994, Sank requested that she be assigned to ANTH 285D, ANTH 101E and ANTH 101F. She noted in a footnote, however, that she again was requesting that she serve in Academic Advising instead of teaching ANTH 101F. In light of the determination, infra, with regard to Sank's other claim based on her not being assigned to Academic Advising, this claim also appears futile.
The final claim is that the Anthropology Department, through the actions of its chairperson, changed its bylaws in order to avoid having Sank on its executive committee. Sank filed a grievance regarding this issue. In a letter dated March 27, 1995, the union again refused to join Sank in this grievance. The union representative wrote:
In a grievance dated November 20, 1994, Sank asserts that the Department of Anthropology had, since its inception until the actions complained of, functioned with by-laws that stipulated that at least one faculty member from each of the four fields of Anthropology (archeology, cultural, linguistics and physical anthropology) had to be represented on the department's executive committee. On September 1, 1994, it was announced that it was against the university's by-laws to require departments to have the members of its executive committee representing the different fields in that department. The chairperson requested a vote eliminating that rule in the bylaws. Sank challenges her motive for seeking that vote and the way in which the vote was held.
[T]he issues you have raised do not constitute a violation of the PSC/CUNY agreement or any rules or regulations as promulgated by the CUNY Board of Trustees including the bylaws. As I have previously written you . . ., in making any claim of discrimination under Article VIII of the contract the burden of proof in making such a claim rests solely on the Union and we must provide evidence and testimony to support such a claim. We have no such objective proof that the actions taken by [the department chairperson] were discriminatory against you.
Letter from Professional Staff Congress of CUNY, at 1 (March 27, 1995). In a letter dated April 10, 1995, Anderson, dean of faculty relations, included a summary of discussions held regarding Sank's complaint. These discussions appeared to be held to seek a good faith solution to Sank's complaints. There is no temporal proximity between the vote complained of and the Sank's protected actions. Further, Sank has presented no direct evidence that CUNY's apparent rationale, based solely on the papers submitted by Sank, that the university bylaws did not permit the Anthropology Department bylaws to remain, was a pretext for discrimination. Nor has she pointed to any similarly situated person who has been treated differently. As a result, this claim would be futile if added and Sank's motion to amend her Complaint to add it is denied.
Thus, it is only necessary to consider whether Sank has raised a genuine issue of material fact with regard to her remaining claims.
B. The Remaining Claims
As a result of the above determination, Sank's only remaining claims are those based on the 1993 course schedule that did not include Academic Advising, the errors in the Fall 2001 course catalog and the cancellation of one of Sank's courses in the Fall of 2001 for under-enrollment.
Sank has not established any direct evidence of retaliatory animus for any of her claims. Therefore, she must rely on temporal proximity alone to establish a causal connection. Sank filed her first discrimination charge on August 8, 1989, and her third and final charge on March 3, 1990. The first act of which Sank complains, the failure to assign Sank to Academic Advising, first became an issue in December 1991, and was not effectuated until the spring of 1993. Thus, at the earliest, approximately twenty months elapsed after the filing of Sank's latest discrimination charge to the beginning of the complained of activity. Such time is too great to support a causal connection. Clark Co. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (granting summary judgment in favor of defendant employer on retaliation claim where 20 months had elapsed between EEOC charge and alleged retaliatory act, on the grounds that the temporal proximity between employer's knowledge of the protected activity and adverse employment action must be "very close"). The other actions complained of occurred in the spring and fall of 2001. The most proximate protected activity to that time was Sank's commencement of this lawsuit, the latest amended complaint of which was filed on May 27, 1994. The approximate seven years separating the protected activity and the purported adverse action is no where near "very close" and thus cannot support a finding of causality.
In addition, the decision-maker in this instance was unaware of Sank's claims. Gordon v. N.Y. City Bd. of Ed., 232 F.3d 111, 117 (2d Cir. 2000) ("lack of knowledge on the part of particular individual agents is admissible as some evidence of a lack of a causal connection, countering plaintiff's circumstantial evidence of proximity or disparate treatment" but jury nonetheless can find retaliation if "an agent is acting explicitly or implicitly upon the orders of a superior who has the requisite knowledge").
Even resolving all ambiguities and drawing all inferences in Sank's favor, she therefore has failed to meet her prima facie case with regard to these events. Manessis v. N.Y. City Dep't of Trans., No. 02 Civ. 359, 2003 U.S. Dist. LEXIS 1921, at *38 (S.D.N.Y. Feb. 10, 2003) (granting summary judgment in employer's favor because plaintiff failed to adduce direct evidence of retaliation or a temporal proximity establishing causality). In any case, even if she did not, she has failed to raise a triable issue of fact with regard to whether the Defendants' legitimate non-discriminatory reasons were pretextual.
With regard to Sank's course schedule in the spring of 1993, the Defendants have pointed to the financial difficulties facing CCNY as a legitimate, non-discriminatory reason. It is undisputed that CCNY in 1992 reduced by half the amount of release time available for all faculty in all departments who participated in Academic Advising. Further, Sank has not disputed that CCNY was experiencing financial difficulties at that time, and that those difficulties necessitated the curtailment of available release time for all faculty at CCNY. In addition, although her request was at first denied, Sank was eventually assigned to Academic Advising in the Spring of 1993 in addition to the other three courses for which she had been assigned and which she was required to teach to fulfill her obligations. This assignment resulted in Sank's having a "contractual overload."
When she filed a grievance about this overload, the compromise reached was that she would withdraw her grievance in exchange for resigning from Academic Advising and receiving compensation for the 15 hours she spent in the program. Sank has presented no evidentiary support for her contentions that the above actions occurred as a pretext for retaliation. Indeed, given the handling and settlement of her grievance in that regard, it would be difficult for her to do so. Therefore, her claim regarding an Academic Advising assignment in the spring of 1993 cannot stand on these grounds either.
The factual dispute with regard to the knowledge of the department chairman, Besmer, of the discrimination charge at the time of the course assignment is insufficient to save this claim. E.g., Aguirre v. N.Y.S.tate Police, 156 F. Supp.2d 305, 323 (S.D.N.Y. 2001) (dispute regarding defendants' knowledge of plaintiff's previously filed EEOC charge did not prevent grant of summary judgment in defendants' favor on Title VII retaliation claim because plaintiff had not offered evidence to establish that his termination was based on retaliation, rather than on a non-retaliatory reason, i.e., misconduct). In any case, Sank now alleges that she was first denied the position in December 1991, when Laderman — not Besmer — was still chairperson. Indeed, it was Laderman who eventually relented and assigned Sank to Academic Advising.
Sank's second remaining claim involves the error in the Fall 2001 course catalog. It is undisputed that CCNY's records show that the error in the course schedule was corrected on May 8, 2001. Nor has Sank presented any evidentiary support for her contention that the error remained uncorrected or that the May 8, 2001 record was somehow manufactured after the fact. She merely speculates that even if the prerequisite was deleted in a timely fashion, the fact that it remained in the course catalog likely scared students away from her course. This speculation does not rise to the level of a triable issue of fact, particularly given the fact that the error likely resulted from the upgrade of the SIMS system, that there is no evidence that the person in charge of the process was aware of Sank's discrimination charge and lawsuit, and the fact that the error was corrected in a timely manner and in the same manner in which similar errors were corrected.
It is true that Sank requested that the administration take additional steps to correct the mistake than they normally take by, for instance, printing and distributing an errata sheet to reflect the deletion of the prerequisite, and that the administration refused to do so. There is no evidence that the administration ordinarily took these extra actions, and as a result, Sank cannot base a retaliation claim on the fact that the administration acted as it normally did, instead of going beyond the norm. As a result, the Defendants' motion with regard to this claim is granted, and Sank's claim based on the error in the catalog must be dismissed for failure to raise a triable issue of fact with regard to whether the Defendants' rationale was pretextual.
Sank's final claim is somewhat related to the error in the course catalog, in that she claims that the mis-described ANTH 29500 was precipitously cancelled for being under-enrolled. The Defendants have presented a legitimate non-discriminatory reason for this cancellation: ANTH 29500 had an enrollment of only three students, and the lowest enrollment of all the Anthropology electives. The Dean of Social Sciences therefore decided to cancel ANTH 29500 for lack of enrollment and to permit two other underenrolled classes, ANTH 24600 and ANTH 24900, which had seven and five students respectively, to remain open in anticipation that they would enroll a minimum of ten students.
There is no evidence that the Defendants' legitimate non- discriminatory reason was a pretext. Sank did not complain about any other cancelled courses occurring in the prior twelve years since she first filed her discrimination charge. In addition, there is no specific evidence that the administration created the "less than ten students" rule as a means of cancelling Sank's course, nor that the administration failed to enforce the rule against others similarly situated except for the other anthropology electives that had larger enrollments than ANTH 29500. The mere fact that the administration chose only to cancel the lowest enrolled of the anthropology courses is insufficient to raise a genuine issue of fact with regard to whether its rationale was pretextual.
Sank has suggested that the administration should have stayed the cancellation until the end of the registration period (one day after it was cancelled, August 23, 2001), or even later. While such action perhaps could have resulted in the class garnering seven more students, it also could have resulted in the three or more students registered in the class being forced out with no time left in the registration period to seek another elective. In light of the absence of any evidence that the administration acted contrary to established policy or treated Sank differently from those similarly situated, Sank's speculations are insufficient to raise a triable issue of fact. As a result, the Defendants' motion regarding Sank's claim based on the cancellation of ANTH 29500 is granted, and that claim is dismissed.
To sum up, a Title VII retaliation claim will not be permitted to become a vehicle to litigate grievances by a tenured professor at war with the administrators of the college.
Conclusion
For the foregoing reasons, Sank's motion to amend her complaint to add additional claims of retaliation dating from eight to eleven years ago is denied, and the Defendants' motion to dismiss is granted. Sank's remaining claims of retaliation are hereby dismissed.
It is so ordered.