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granting summary judgment for defendants where plaintiff had alleged racial discrimination based on, inter alia, allegations that defendant commented on potential students' command of English because "command of the English language is a neutral criterion that does not discriminate on the basis of race or national origin"
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98-CV-0578E(Sr)
February 6, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Carlos Bayon, formerly a graduate student in the Anthropology Department at the State University of New York at Buffalo ("SUNYAB"), filed a disability discrimination suit against SUNYAB and various individual defendants on September 11, 1998. SUNYAB, the only remaining defendant, filed a motion for summary judgment on May 12, 2003 and a supporting memorandum of law on October 15. This matter was argued and submitted on January 16, 2004. For the reasons set forth below, Bayon's motion for summary judgment will be granted in part and denied in part.
An Amended Complaint was filed on March 8, 1999. Bayon asserts claims for alleged violation of section 601 of Title VI of the Civil Rights Act, 42 U.S.C. § 2000d and Title II of the Americans with Disabilities Act ("the ADA"), 42 U.S.C. § 12131 et seq. as well as a retaliation claim under the ADA.
Rule56(c) of the Federal Rules of Civil Procedure ("FRCvP") states that summary judgment may be granted only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In other words, after discovery and upon a motion, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is thus appropriate where there is "no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Of course, the moving party bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Goertaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970)). If the moving party makes such a showing, the non-moving party must then come forward with evidence of specific facts sufficient to support a jury verdict in order to survive the summary judgment motion. Ibid.; FRCvP56(e).
With respect to the first prong of Anderson, a genuine issue of material fact exists if the evidence in the record "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, at 248. Stated another way, there is "no genuine issue as to any material fact" where there is a "complete failure of proof concerning an essential element of the nonmoving party's case." Celotex, at 323. Under the second prong of Anderson, the disputed fact must be material, which is to say that it "might affect the outcome of the suit under the governing law ***." Anderson, at 248.
See also Anderson, at 252 ("The mere existence of a scintilla of evidence in support of the [movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [movant].")
Furthermore, "[i]n assessing the record to determine whether there is a genuine issue as to any material fact, the district court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought." St. Pierre v. Dyer, 208 E3d 394, 404 (2d Cir. 2000) (citing Anderson, at 255). Nonetheless, mere conclusions, conjecture, unsubstantiated allegations or surmise on the part of the non-moving party are insufficient to defeat a well-grounded motion for summary judgment. Goenaga, at 18. Indeed, in order to survive a motion for summary judgment, plaintiffs in discrimination cases must offer more than "purely conclusory allegations of discrimination, absent any concrete particulars ***." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829 (1985). Summary judgment is nonetheless appropriate in discrimination cases. Holtz v. Rockefeller, 258 F.3d 62, 69 (2d Cir. 2001).
In discrimination cases, district courts must be "especially chary in handing out summary judgment *** because in such cases the employer's intent is ordinarily at issue." Chertkoua v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996).
See footnote 3.
For the reasons set forth below, Bayon's Title II claim will be dismissed. In order to sue for money damages under Title II of the ADA, Bayon must "establish that the [alleged] Title II violation was motivated by either discriminatory animus or ill will due to disability." Garcia v. SUNY Health Sciences Ctr., 280 E3d 98, 112 (2d Cir. 2001). Moreover, "[g]overnment actions based on discriminatory animus or ill will towards the disabled are generally the same actions that are proscribed by the Fourteenth Amendment — i.e., conduct that is based on irrational prejudice or wholly lacking a legitimate government interest." Id. at Ill. Nonetheless, a knowing or willful violation of Title II does not establish discriminatory animus or ill will. Id. at 112. In order to establish discriminatory animus or ill will, "a plaintiff may rely on a burden-shifting technique similar to that adopted in Mc Donnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 *** (1973), or a motivating-factor analysis similar to that set out in Price Waterhouse v. Hopkins, 490 U.S. 228, 252-258 *** (1989)." Ibid. (emphasis added). In Garcia, the court found no irrational discriminatory animus or ill will because the
"crux of Garcia's claim is simply that SUNY denied him the accommodations he sought, namely allowing him to take `an already scheduled Neuroscience make-up exam' after he had twice failed the course or adjusting his neuroscience grade to a passing mark."
This Court assumes arguertdo that Bayon has established a prima facie case of disability discrimination under Title II of the ADA. Smith v. S.U.N.Y.A.B., 1997 WL 800882, at *5 (W.D.N.Y. 1997) (setting forth the elements of a prima facie case of disability discrimination); 42 U.S.C. § 12132 ("Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity."). Nonetheless, this Court must determine whether SUNYAB displayed irrational discriminatory animus and ill will within the meaning of Garcia.
The Court of Appeals in Garcia did not elucidate how the "irrational discriminatory animus or ill will" requirement should be incorporated into an analysis similar to the analyses set forth in McDonnell Douglas and Price Waterhouse — a question that this Court need not resolve because Bayon has not proffered evidence of irrational discriminatory animus or ill will by SUNYAB.
Similarly, the crux of Bayon's claims is that he was denied requested accommodations, including, inter alia, the opportunity to receive an "incomplete" for certain courses rather than a grade, the ability to retroactively withdraw from certain courses, the ability to delay taking the Physical Anthropology Qualifying Examination and additional time for certain assignments. Bayon, however, has failed to proffer any evidence of irrational discriminatory animus or ill will by SUNYAB (or its faculty) within the meaning of Garcia. Accordingly, Bayon's ADA claim will be dismissed as barred by the Eleventh Amendment of the U.S. Constitution.
Garcia, at 109 ("[T]he Fourteenth Amendment only proscribes government conduct for which there is no rational relationship between the disparity of treatment and some legitimate governmental purpose."). Drs. Pauketat and Dentan provided legitimate pedagogical reasons for denying Bayon's respective requests for an incomplete that were rationally related to their decisions to grant incompletes to nondisabled students requesting the same. Consequently, Bayon cannot satisfy the burden established in Garcia. This Court has considered Bayon's other arguments and finds them without merit.
See Hamilton v. City College of the Univ. of N.Y., 173 F. Supp.2d 181, 184-185 (S.D.N.Y. 2001) (granting defendant's motion for summary judgment because plaintiff failed to demonstrate discriminatory animus or ill will within the meaning of Garcia where plaintiff was merely denied the use of a calculator as an accommodation for his dyslexia); Id. at 185 n. 1 (noting that a single denial of an accommodation — in light of previous accommodations — "is wholly insufficient to demonstrate the irrational discriminatory animus or ill will required by Garcia"); cf. Harris v. N.Y. State Dep't of Health, 202 F. Supp.2d 143, 174-175 (S.D.N.Y. 2002) (finding that physician failed to allege "irrational discriminatory animus or ill will" within the meaning of Garcia where he alleged that the Department of Health denied his request for accommodation, which would have purportedly permitted him to continue practicing medicine); Garcia, supra note [district court], at *8-9 (noting that courts accord considerable deference to academic decisions made by colleges).
Bayon's Title VI claim will be dismissed because he has produced no evidence that SUNYAB (or its faculty) intentionally discriminated against him on the basis of race or national origin. Inasmuch as Bayon has not proffered any direct evidence of discriminatory intent, application of the burden-shifting framework promulgated by McDonnell Douglas and its progeny is applicable. Under the McDonnell Douglas framework, Bayon must establish a prima facie case of discrimination, which requires him to show (1) membership in a protected class, (2) qualification for the position or benefit denied, (3) an adverse decision, and (4) circumstances that give rise to an inference of discrimination. This burden is de minimi's. Nonetheless, Bayon's Title VI claim fails because he cannot establish the fourth element.
The parties do not dispute that Bayon must demonstrate intentional discrimination in order to prevail on his Title VI claim. See Alexander v. Sandoval, 532 U.S. 275, 280-281 (2001) (noting that it is "beyond dispute" that Title VI "prohibits only intentional discrimination"); Tolbert v. Queens College, 242 F.3d 58, 69 (2d Cir. 2001) (holding that a Title VI claim required a plaintiff to show intentional racial discrimination and that such discrimination was a substantial or motivating factor for defendant's actions); Weser v. Glen, 190 F. Supp.2d 384, 395 (E.D.N.Y. 2002) (citing Alexander and noting that "intentional discrimination proscribed by Title VI is discrimination that violates the Equal Protection Clause of the Fourteenth Amendment"); 42 U.S.C. § 2000d ("No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.").
See also Texas Dep't of Cmfy. Affairs v. Burdine, 450 U.S. 248, 253 (1981) ("[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 508 n. 3 (1993) (discussing the burden-shifting analysis established in McDonnell Douglas and construed in Burdine).
See Johnson v. State of N.Y., 49 F.3d 75, 79 (2d Cir. 1995) (holding that the McDonnell Douglas framework is not applicable where plaintiff has proffered direct evidence of discrimination); McKie v. New York Univ., 2000 WL 1521200, at *3 n. 1 (S.D.N.Y. 2000) ("Title VI claims are governed by the same McDonnell Douglas burden shifting inquiry applied to claims brought under Title VII ***."); see also Jackson v. Univ. of New Haven, 228 F. Supp.2d 156, 160 (D. Conn. 2002) (applying McDonnell Douglas framework in Title VI context).
Jacfcson, supra note 13, at 160.
Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 (2d Or.), cert., denied, 534 U.S. 993 (2001).
Although viewed in Bayon's favor, the evidence nonetheless fails to establish circumstances that give rise to an inference of discrimination. Bayon contends in his Memorandum of Law that the requisite discrimination is demonstrated by the following: (1) the fact that Bayon's grade in Dr. Freudenheim's class was raised by five points after Bayon alleged that Dr. Freudenheim discriminated against him on the basis of race or national origin; (2) Dr. Steegman's comments that he refused to grant "political degrees" and that he wanted a "smaller" and "more elite" group of graduate students in the Anthropology Department and that such students should "have excellent command of English"; (3) that Dr. Steegman's comments were made eight days before Bayon was asked to resign from SUNYAB's Anthropology program; (4) that Dr. Dentan allegedly made racist comments during class; and (5) that the Anthropology Department's Qualifying Examination "is a tool of racist discrimination and biased against minority students." These allegations fail to establish circumstances giving rise to an inference of discrimination based on Bayon's race or national origin.
Inasmuch as Bayon has failed to establish a primafacie case of discrimination under Title VI, there is no need to address the second or third stages of the McDonnell Douglas burden-shifting framework.
See Pl's Mem. Of Law., at 23-25.
The allegations with respect to Dr. Freudenheim are conclusory and thus fail to establish a genuine issue of material fact. The allegations with respect to Dr. Steegman are insufficient because they are unrelated to race or national origin. Indeed, command of the English language is a neutral criterion that does not discriminate on the basis of race or national origin; it is equally applicable to all and favors none. Upon reviewing Dr. Dentan's allegedly racist comments in Exhibit L of Plaintiff's Appendix — which Bayon incorporated by reference but failed to quote or specifically discuss —, this Court finds that such statements do not give rise to an inference of racial discrimination. Moreover, Bayon stated in his Statement of Disputed Material Facts (Pl's Statement) that he
Meiri, at 998; Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("Conclusory allegations, conjecture and speculation *** are insufficient to create a genuine issue of fact.").
Indeed, Bayon fails to proffer any evidence that Dr. Dentan did anything beyond discussing the subject of race in a cultural anthropology course.
"does not know what motivated Dr. Dentan and Dr. Pauketat to discriminate against him, but believes that their adverse actions had more to do with his disability, and relate more to his claims of their failure to reasonably accommodate his disability, and their retaliation against him. Plaintiff cannot state affirmatively that Dr. Dentan and Dr. Pauketat were not motivated to act as they did based upon plaintiff's race and national origin." Pl's Statement ¶ 3(j) (emphasis added).
See also Bayon Dep., at 50-54, 60, 66-67, 123 (indicating that none of Bayon's professors ever made any derogatory comments concerning his race or national origin); Pl's Statement \?\ 3(b) ("[Bayon] believes Dr. Milisauskas treated him differently because of his race and disability, but agrees Dr. Milisauskas never made any verbal derogatory statement directly to plaintiff regarding plaintiff's race or disability") (emphasis added); id. ¶ 3(c) ("[Bayon] agrees that Dr. Duggleby and Dr. McElroy never made any derogatory statement regarding plaintiff's disability or national origin directly to plaintiff, but plaintiff does not know what they may have said to other faculty members regarding same") (emphasis added); id. ¶ 3(d) ("[Bayon] agrees that Dr. Steegman and Dr. Pauketat never made any derogatory statement regarding plaintiff's disability or national origin directly to plaintiff, but plaintiff does not know what they said to other persons or faculty members regarding same") (emphasis added); DisTasio v. Perkin Elmer Corp., 157 F.3d 55, 61 (2d Cir. 1998) ("[P]laintiffs may not avoid summary judgment by simply declaring that state of mind is at issue.").
Consequently, Bayon has proffered no evidence that SUNYAB (or its faculty) discriminated against him on the basis of race or national origin. Finally, Bayon's allegation that the Qualifying Examination is a racist tool is conclusory and without any evidentiary support. Accordingly, Bayon's Title VI discrimination claim will be dismissed.
Bayon Dep., at 80-82 (opining that the Qualifying Examination is subjective and racially discriminatory).
Finally, Bayon's ADA retaliation claim will not be dismissed. In order to state a retaliation claim under the ADA, Bayon must establish that (1) he was engaged in protected activity, (2) the alleged retaliators knew that Bayon was involved in protected activity, (3) an adverse course of action was taken against Bayon and (4) a causal connection exists between the protected activity and the adverse action. Bayon's failure to prevail on his Title II claim is not an obstacle to his retaliation claim. The first three elements are easily satisfied. Moreover, this Court finds that Bayon has satisfied the fourth element — that a causal connection existed between Bayon's protected activity and the adverse actions taken against him — because Bayon was subject to various adverse actions by various SUNYAB faculty after he had engaged in protected activity, including filing complaints about many of the faculty who refused to grant Bayon certain requested accommodations. Even assuming arguendo that SUNYAB has set forth legitimate, nondiscriminatory reasons for all of the allegedly adverse actions taken against Bayon, there nonetheless remain genuine issues of material fact whether SUNYAB faculty retaliated against Bayon for having engaged in protected activity.
Title V of the ADA provides that:
"No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this chapter." 42 U.S.C. § 12203(a).
Weixel v. Bd. of Ed. of City of N.Y., 287 F.3d 138, 148 (2d Cir. 2002).
Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 234 (2d Cir. 2000).
A rational juror could find that Dr. McElroy's statement to Bayon that his path in the Anthropology Department would be smoother if he dropped his complaints against various SUNYAB faculty supports a finding that certain faculty members had motive to and in fact did retaliate against Bayon. Cf. Amir v. St. Louis Univ., 184 F.3d 1017, 1026 (8th Cir. 1999) (affirming denial of summary judgment because a genuine issue of material fact existed where a college student was given a failing grade by a professor against whom the student had filed a grievance, especially in light of the discretion that the professor had in assigning the student's grade).
Accordingly, it is hereby ORDERED that defendant's motion for summary judgment is granted in part and denied in part, that plaintiff's Title II and Title VI claims are dismissed, that plaintiff's retaliation claim is not dismissed and that the parties shall appear before Part III of this Court on March 26, 2004 at 3:00 p.m. (or as soon thereafter as they may be heard) to set a date for trial.