Summary
observing that the failure to reappoint an adjunct professor may constitute an adverse employment action
Summary of this case from Lipschultz v. Holy Family Univ.Opinion
No. 02 Civ. 6355 (RJH) (KNF).
January 19, 2005
MEMORANDUM OPINION AND ORDER
George Chapkines brought this pro se action against New York University's School of Continuing and Professional Studies ("NYU"), various individuals currently or formerly employed by NYU and two unidentified Jane Doe students (collectively "defendants"). Chapkines has alleged that defendants unlawfully terminated his employment at NYU based on age discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq.; the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. L. § 296 et seq.; and the New York City Human Rights Law ("NYCHRL"), N.Y. City Administrative Code § 8-107(6). Defendants now move for summary judgment on all claims contained in Chapkines' complaint. For the reasons set forth below, the Court grants summary judgment and dismisses Chapkines' complaint in its entirety.
BACKGROUND
Unless otherwise indicated, the following facts are undisputed.I. Chapkines' Employment at NYU
Chapkines taught accounting courses at NYU as an adjunct assistant professor for from 1979 until the Fall 2000 semester at the Center for Finance, Law, and Taxation (the "Center") at NYU. (Pl.'s 56.1 ¶¶ 6-8; Chapkines Dep. Tr. at 24-25.) During that period, Chapkines had enjoyed numerous positive student evaluations. (Pl.'s Ex. G.) Additionally, Chapkines continued his full-time employment at the Taylor Business Institute from 1983 until 2000. (Chapkines Dep. Tr. at 8.)
Chapkines was assigned to teach a course entitled "Fundamentals of Accounting" for the Fall 2000 semester. (Hyde Decl., Ex. B.) During the first session of the course, Chapkines wrote his name and telephone numbers on the chalkboard. (Chapkines Dep. Tr. at 44.) After doing so, he stated to the class "[t]his is just for the girls," and added "just kidding." ( Id.) It is disputed, however, as to whether Chapkines also asked for telephone numbers of female students so that he could call them during the weekends when he was bored. ( Id.; Defs.' 56.1 ¶ 23.)
At least one female student, Lorna Schmidt, stood up and walked out of the class in response to Chapkines' comments. (Chapkines Dep. Tr. at 45.) Although the class was still in session, Chapkines followed her into the hallway and asked her to return. (Schmidt Dep. Tr. at 28-29.) When she declined, he returned to the classroom and made some sort of "apologetic" statement. (Rees Dep. Tr. at 13.) Thereafter, Schmidt telephoned Cynthia Negron, an Administrative Aide at the Center, to express her desire to withdraw from the class and to request a refund. Schmidt informed Negron that she wanted to withdraw from the course because she perceived that Chapkines was not adequately credentialed, and that Chapkines had "made two comments that . . . made me feel very uncomfortable and were not appropriate to be made in an educational or professional setting." (Schmidt Dep. Tr. at 8-9.) NYU permitted her to withdraw and fully refunded her tuition. ( Id. at 12; Defs,' 56.1 ¶ 25; Negron Decl. ¶¶ 1, 6.)
Negron considered Chapkines' behavior to be a violation of NYU's sexual harassment policy. (Negron Decl. ¶ 8.) Moreover, this occasion was not the only instance in which Negron perceived Chapkines' behavior to be in some manner inappropriate. ( Id. ¶ 10.) During two separate conversations with Chapkines during the Spring 2000 semester, Negron contends that Chapkines resisted filling out an I-9 form necessary for confirming his citizenship status under federal employment law in a confrontational and bullying manner. ( Id. ¶ 11.) Negron advised Chapkines to speak with Maxine Gerson, the Associate Director of the Center, who later complained to Negron concerning Chapkines' perceived irrational and frustrating behavior. ( Id. ¶ 12.) Gerson wrote a letter dated April 28, 2000, to Chapkines, explaining why federal law required him to complete the form. (Hyde Decl., Ex. C.)
NYU's sexual harassment policy provides, inter alia, that "New York University is committed to maintaining a learning and working environment for all students that is fair, humane, and responsible . . . Sexual harassment and sexual assault undermine the character and purpose of the University and its community members . . . Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature . . . The University will not condone discriminatory conduct, and will take prompt and remedial action upon receiving knowledge that such behavior has occurred." (Negron Decl., Ex. B.)
Chapkines contests that he was ever rude or confrontational with the staff. (Pl.'s Opp'n to Mot. for Summary J. at 8.) Chapkines also asserts that his questions regarding the need and applicability of the I-9 form "were posed not in the spirit of confrontation but of clarification." (Pl.'s Opp'n to Mot. for Summary J. at 8.) Nevertheless, it is undisputed that Chapkines did not understand why he had to fill out the form. (Chapkines Dep. Tr. at 59.) As a result, Chapkines repeatedly questioned the Center's staff regarding the I-9 form prior to his appointment for the Fall 2000 semester. (Defs.' 56.1 ¶ 30; Chapkines Dep. Tr. at 36, 59, 94-95; Vullo Decl., Ex. E.) On May 8, 2000, Chapkines ultimately completed the form and returned it to Mary Silver, Director of Part-Time Programs and Professional Skills Training at NYU School of Law. (Pl.'s Mem. in Opp'n to Mot. for Summary J. at 9; Negron Decl. ¶ 13.)
Defendants further maintain that Chapkines was difficult to reach because he did not have an answering machine or voicemail system between 1998-2000. (Defs.' 56.1 ¶ 33.) Although Chapkines had a caller identification mechanism, he often did not know who had called him when he returned any calls. (Chapkines Dep. Tr. at 27-29.) On one instance, Chapkines returned a telephone call apparently made by the Center that had showed up on his caller identification box. (McMahon Dep. Tr. at 6-8.) When Jean McMahon, an Administrative Aide at the Center, answered the phone, Chapkines insisted in a rude and obnoxious fashion that she had called him without realizing that the number he had called was a general line for the Center. ( Id.) On other occasions, Hyde's attempts to telephone Chapkines resulted in endless ringing since he did not have any answering service. (Hyde Decl. ¶ 19.)
Following Chapkines' comments during the Fundamentals of Accounting course, Negron notified Katherine Hyde, who was then serving as Assistant Director at the Center. (Negron Decl. ¶¶ 8-9.) Hyde agreed with Negron's recommendation that Chapkines not be re-appointed for the Spring 2001 semester because of his comments during the Fundamentals of Accounting course, his purported rudeness to staff on prior occasions and resistance in filling out an I-9 form regarding his citizenship status, and his perceived inaccessibility. (Hyde Decl. ¶¶ 12-16.) Hyde subsequently informed Silver of the issues surrounding Chapkines' continued employment at NYU. (Silver Decl. ¶ 6.) At Silver's behest, Hyde wrote a memorandum summarizing what had happened at the December 19, 2000 meeting with Chapkines. (Hyde Decl. ¶ 28.) Silver then affirmed Hyde's determination not to reappoint Chapkines. (Silver Decl. ¶ 7.)
As an adjunct faculty member, Chapkines learned whether he was reappointed to teach for the next semester by looking at the bulletin published by NYU. (Chapkines Dep. Tr. at 29.) On December 4, 2000, Chapkines discovered that he was not reappointed for the Spring 2001 semester because he did not see his name listed in the NYU bulletin. ( Id. at 48.) Chapkines subsequently asked to see Negron to find out why he had not been reappointed. (Finney Decl., Ex. A.) After being informed that Negron was on maternity leave, Chapkines was approached by Hyde. ( Id.) Hyde told Chapkines that NYU had decided against re-appointing him because of "poor student evaluations" although Chapkines understood that term to mean official evaluations submitted to NYU. ( Id.; Hyde Decl., Ex. G.) He thus informed Hyde that his student evaluations were always excellent, to which Hyde responded by telling Chapkines she would discuss the matter with Negron and would then call him. (Finney Decl., Ex. A.) After Chapkines insisted on meeting in person, Hyde set up an appointment for December 19, 2000 to meet with her and Negron at her office. ( Id.)
Prior to the Fall 1999 semester, Chapkines received memorandums of appointment issued by NYU to adjunct faculty members identifying the course to be taught and the dates of the first and last sessions of the course. (Defs.' 56.1 ¶ 11; Pl.'s 56.1 ¶¶ 11, 26-47.) Those memorandums of appointment stated that NYU "reserve[s] the right to cancel a course at any time." (Pl.'s 56.1 ¶¶ 26-47.) In 1999, the memorandums of appointment altered that language to provide that NYU "reserves the right to cancel a course and your appointment at any time." (Hyde Decl., Exs. B, F (emphasis added); Chapkines Dep. Tr. at 17-20; Pl.'s Mem. in Opp'n to Mot. for Summary J. at 4.) Chapkines' employment status is ambiguous to the extent that he claims he was "grandfathered" in before the added statement took effect because he began working for NYU in 1979. ( Id. at 5.) At one point, Chapkines testified that he was an at-will employee. (Chapkines Dep. Tr. at 21.) However, Chapkines later asserted that prior to 1999, when the at-will clauses were added to the memorandums of appointment, he "didn't consider [himself] to be an at-will employee." (Pl.'s 56.1 ¶ 10.) Moreover, to Chapkines' understanding, if a class he was planning to teach was cancelled, Chapkines' appointment for that semester was also cancelled. (Chapkines Dep. Tr. at 26.) Chapkines contends that every time his class was cancelled, NYU placed him on "leave" such that he expected to return the following semester. (Chapkines Dep. Tr. at 27.)
On December 19, 2000, Hyde met with Chapkines alone to discuss why NYU had decided not to reappoint him because Negron was on maternity leave. (Pl.'s Ex. G.) At the meeting, Hyde told Chapkines that "student evaluations are not the issue, but these three issues are." (Pl.'s Ex. G.) Those reasons, Hyde explained, were as follows: (1) Chapkines had made inappropriate remarks during the first session of the Fundamentals of Accounting course; (2) Chapkines had behaved rudely and uncooperatively towards the Center's staff, particularly with respect to the I-9 form; and (3) Chapkines was inaccessible due to his failure to retain a telephone answering service. (Defs.' 56.1 ¶ 46; Chapkines Dep. Tr. at 52-60.) At the end of the meeting, Chapkines asked Hyde whether the decision had been motivated by age discrimination because he believed the proffered reasons were "bogus." (Chapkines Dep. Tr. at 60.) Hyde responded that age was not a factor in the decision not to reappoint him. (Hyde Decl., Ex. G.) Chapkines admits that he has no direct evidence that this decision was motivated by age discrimination or that any of the individual defendants made offensive comments about his age in his presence. (Defs.' 56.1 ¶¶ 87-97.)
Chapkines subsequently wrote a letter dated January 30, 2001 to David Finney, the Dean of the School of Professional and Continuing Studies, asking him to investigate the decision made by the Center not to reappoint him for the Spring 2001 semester. (Finney Decl. ¶ 5.) Chapkines also approached Dean Finney during a faculty meeting in early February 2001 to discuss the letter although they had never met prior to that occasion. ( Id. ¶ 6.) Dean Finney ultimately asked Perry Greene, Associate Dean of the School of Professional and Continuing Studies, to investigate the matter further. ( Id. ¶ 7.) Based on his conversations with Hyde, Associate Dean Greene recommended to Dean Finney that the decision not be overturned based. (Greene Dep. Tr. at 12-15.) Dean Finney affirmed the decision made by the Center, and Associate Dean Greene wrote a letter to Chapkines informing him of the decision. (Finney Decl ¶¶ 8, 10.)
Defendants engaged Sheila Jones, born in 1963, to teach the course for the Spring and Fall 2001 semesters. (Negron Decl. ¶ 20.) Jones had responded to an advertisement NYU ran in the New York Times in July of 2000 seeking applicants to teach a variety of subjects in finance, law, tax and marketing-related non-credit courses. ( Id. ¶ 17; id., Ex. C.) This advertisement was designed to solicit applicants to create a pool of adjuncts available to teach. ( Id. ¶ 17.) Negron interviewed Jones shortly after she had responded to the advertisement and subsequently approved her to be on the roster of adjuncts prior to the incident in Chapkines' Fundamentals of Accounting course. ( Id. ¶ 19.) Defendants maintain that Jones was qualified to teach the Fundamentals of Accounting course. ( Id.)
II. Chapkines' Legal Remedies
On April 6, 2001, Chapkines filed a charge with the Equal Employment Opportunity Commission ("EEOC"). (Defs.' 56.1 ¶ 50.) The EEOC dismissed that charge on June 25, 2001 ( id. ¶ 51), but later reinstated the charge on April 26, 2002, and sent a probable cause finding to NYU. ( Id. ¶ 53; Pl.'s Ex. F.) On or about August 9, 2002, Chapkines filed an action in this Court against NYU, Finney, Greene, Silver, Hyde, Gerson, Negron, McMahon and Jane Does 1 and 2 for age discrimination under the ADEA. (Defs.' 56.1 ¶ 54.) Chapkines subsequently amended his complaint two times to add claims pursuant to the NYSHRL and NYCHRL. ( Id. ¶¶ 55-56.) Defendants filed a motion to dismiss certain claims contained in Chapkines' complaint on May 16, 2003.
Chapkines sent a letter dated August 3, 2001, to the EEOC explaining his allegations of age discrimination in further detail. (Pl.'s Ex. F.) On September 7, 2001, the EEOC subsequently issued a Notice of Intent to Reconsider its earlier determination. ( Id.)
In a Report and Recommendation dated February 25, 2004, Magistrate Judge Kevin N. Fox recommended to this Court that Chapkines' claims against McMahon, Gerson, and Jane Does 1 and 2 be dismissed, as well as any claims for punitive damages, liquidated damages and attorney's fees. ( Id. ¶¶ 58-59.) On June 29, 2004, this Court adopted Magistrate Judge Fox's Report and Recommendation to the extent that Chapkines' ADEA-based claims against individual defendants, claims against Jane Does 1 and 2, and his claim for attorney's fees were dismissed. Additionally, the Court denied defendants' motion to dismiss with respect to claims pursuant to the NYHRL and NYCHRL against individual defendants and claims for punitive and liquidated damages.
Defendants have now moved for summary judgment on the remaining claims in Chapkines' complaint.
DISCUSSION
I. Summary Judgment Standard
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997) (quoting Fed.R.Civ.P. 56(c)). In reviewing the record, the district court must assess the evidence in "the light most favorable to the non-moving party," resolve all ambiguities, and "draw all reasonable inferences" in its favor. Am. Cas. Co. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
An alleged factual dispute between the parties will not by itself defeat a motion for summary judgment, since "the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphasis in original). In order to defeat such a motion, the non-moving party must affirmatively set forth facts showing that there is a genuine issue for trial. Id. at 256; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Specifically, the non-moving party cannot rely on mere allegations, denials, conjectures or conclusory statements, but must present affirmative and specific evidence showing that there is a genuine issue for trial. See Anderson, 477 U.S. at 256-57; Gross v. Nat'l Broad. Co., 232 F. Supp. 2d 58, 67 (S.D.N.Y. 2002). "A fact issue is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 2003) (quoting Anderson, 477 U.S. at 248). "A fact is `material' if it might affect the outcome of the suit under governing law." Id. (quoting Anderson, 477 U.S. at 248).
Summary judgment may also be granted when the opposing party fails to establish an element essential to that party's case and on which that party would bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 321 (1986). Indeed, summary judgment is "mandated" when "the evidence is insufficient to support the non-moving party's case." Distasio v. Perkin Elmer Corp., 157 F.3d 55, 61 (2d Cir. 1998).
Because Chapkines is proceeding pro se, the Court is cautious in fulfilling its obligation "to construe his pleadings liberally, particularly when they allege civil rights violations." Hemphill v. New York, 380 F.3d 680, 687 (2d Cir. 2004) (internal citations and quotations omitted). Moreover, the Court has broad discretion in overlooking a party's failure to comply with Local Rule 56.1, such as is the case here. Holtz v. Rockefeller Co., Inc., 258 F.3d 62, 73-74 (2d Cir. 2001) (excusing pro se plaintiff's failure to submit 56.1 statement). While Chapkines' pleadings and submissions regarding his Local Rule 56.1 obligations are woefully inadequate, the Court exercises its discretion in overlooking these defects and proceeds to the merits of his claims.
II. Chapkines' ADEA, NYSHRL and NYCHRL Claims A. The Framework for Analyzing Age Discrimination Claims
Chapkines has asserted claims pursuant to the ADEA, NYSHRL and NYCHRL, alleging that defendants declined to reappoint him because of age discrimination. As an initial matter, any NYSHRL and NYCHRL claims alleging age discrimination must be analyzed according to the standard applied to ADEA claims. Schappert v. Bedford, Freeman Worth Publ'g Group, LLC, No. 03 Civ. 0058 (RMB), 2004 WL 1661073, at *5 (S.D.N.Y. July 23, 2004). The purpose of the ADEA is to "promote employment of older persons based on their ability rather than age" and "to prohibit arbitrary age discrimination in employment." 29 U.S.C. § 621(b). In part, the ADEA prohibits an employer from "dischar[ging] any individual or otherwise discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1).
The burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), sets forth the order and allocution of proof in evaluating ADEA claims. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 612 (1993); Abrahamson v. Bd. of Educ. of Wappingers Falls Cent. School Dist., 374 F.3d 66, 71 (2d Cir. 2004). Under McDonnell Douglas, a plaintiff asserting age discrimination must first establish a prima facie showing that "(1) he was within the protected age group; 2) he was qualified for the position; 3) he was subject to an adverse employment action; and 4) the adverse action occurred under circumstances giving rise to an inference of discrimination." Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003) (internal citations and quotations omitted). Once the plaintiff has presented a prima facie case, a presumption of discriminatory animus arises, and the burden shifts to the defendant to proffer a legitimate, nondiscriminatory business rationale justifying its adverse employment action. Jetter v. Knothe Corp., 324 F.3d 73, 75 (2d Cir. 2003); Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000). Assuming the defendant is able to meet that burden, the plaintiff "must show that the articulated non-discriminatory reason for defendant's action is in fact for discrimination" to prevail on an ADEA claim. Jetter, 324 F.3d at 75.
B. Chapkines' Prima Facie Showing
The burden of proof that must be met to enable the plaintiff to survive summary judgment at the prima facie stage is de minimis. Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994). Specifically, the plaintiff need not present evidence of discrimination. James v. New York Racing Assoc., 233 F.3d 149, 153-54 (2d Cir. 2000). So long as the plaintiff is able to show "membership in a protected class, qualification for the position, an adverse employment action and preference for a person not of the protected class," the McDonnell Douglas framework operates to "force employers to come forward with [nondiscriminatory] reasons" for their adverse employment actions." Id. (internal citations and quotations omitted.)
It is undisputed that Chapkines was born on March 8, 1931, and was 70 years old when NYU failed to reappoint him. (Chapkines Dep. Tr. at 5.) Therefore, he falls within the relevant age group protected by the ADEA, which encompasses all persons at least 40 years of age. See 29 U.S.C. § 631(a). Moreover, Chapkines was clearly qualified to teach at NYU based on his experience as a full-time employee at the Taylor Business Institute from 1983 until 2000 and his appointments at NYU to teach accounting courses between 1979 and 2000. (Chapkines Dep. Tr. at 8, 25; Hyde Decl. ¶ 6.) Indeed, the fact that NYU retained him over the course of twenty years for the position greatly strengthens the inference that at the very least, Chapkines possessed the basic skills necessary to perform his job. See Gregory v. Daly, 243 F.3d 687, 696 (2d Cir. 2001) (remarking that the strength of the inference that plaintiff had "basic skills" necessary to perform job is heightened where employer retains plaintiff over significant period of time). Although defendants argue that Chapkines was no longer qualified to teach because of his comments during the first session of the Fundamentals of Accounting course, they cite no authority for this argument. Significantly, defendants concede that Chapkines' "competency in the subject matter was never an issue." (Defs.' Mem. in Supp. of Mot. for Summary J. at 8.) In light of defendants' failure to dispute Chapkines' credentials, the Court finds that Chapkines has made a prima facie showing that he is sufficiently qualified for his adjunct faculty position teaching accounting courses.
Regarding the element of adverse employment action, the Court finds that Chapkines had been hired to teach the Fundamentals in Accounting course for the Fall 2000 term. (Hyde Decl. ¶ 9; id., Ex. B.) However, NYU declined to reappoint him to teach the Spring 2001 course at the end of that term. (Hyde Decl. ¶ 10.) Although there is some uncertainty regarding Chapkines' employment status under NYU's Bylaw 73, defendants admit that their failure to reappoint Chapkines could be considered an adverse employment action. (Defs.' Mem. in Supp. of Mot. for Summary J. at 7; Hyde Decl. ¶¶ 7-8.) Moreover, other courts have determined that the failure to reappoint may constitute an adverse employment action at the prima facie stage. Arrocha v. City University of New York, No. 02 Civ. 1868 (SJF), 2004 WL 594981, at *4 (E.D.N.Y. Feb. 9, 2004) (analyzing failure to reappoint adjunct instructor as an adverse employment action); Bailey-Lynch v. Potter, No. 03 Civ. 1453 (JTE), 2003 WL 23350112, at *2 n. 12 (W.D.N.Y. Oct. 27, 2003) (assuming that decision not to renew employment was adverse employment action); Mancabelli v. Solvay Union Free Sch. Dist., 180 F. Supp. 2d 371, 377 n. 2 (N.D.N.Y. 2001) (treating failure to reappoint as adverse employment action for purposes of prima facie showing). Accordingly, the Court determines that Chapkines has sufficiently carried his de minimis burden with respect to showing an adverse employment action.
The final element for which Chapkines must proffer a prima facie showing is an inference of discrimination. It is well established that a plaintiff may simply show that he was replaced by a substantially younger worker to raise an inference of age discrimination. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313 (1996) (remarking that an inference of age discrimination may be drawn where the plaintiff's replacement is substantially younger than the plaintiff); Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001). Defendants' reliance on Fagan v. New York State Electric Gas Corp., 186 F.3d 127 (2d Cir. 1999) and Hollander v. American Cyanamid Co., 172 F.3d 192, 199 (2d Cir. 1999) is misplaced. In Fagan, the Second Circuit expressly declined to reach the issue of whether the plaintiff had established a prima facie case and instead, proceeded directly to the ultimate issue of age discrimination. Fagan, 186 F.3d at 132. Similarly, none of the characteristics in Hollander are apparent here to the extent that in Hollander, the Second Circuit affirmed the district court's decision to grant summary judgment where the plaintiff (1) identified his purported replacements as insignificantly younger; and (2) failed to show that the persons he identified were truly his replacements. Hollander, 172 F.3d at 204.
It is undisputed that NYU appointed Sheila Jones, born in 1963, to teach the Fundamentals of Accounting course for the Spring 2001 and Fall 2001 semesters after defendants determined that they would not reappoint Chapkines although she had been placed on the adjunct roster prior to the Fall 2000 semester. (Negron Decl. ¶¶ 19-20.) As such, Chapkines has arguably shown that NYU hired a person substantially younger in age to fill his position. Keeping in mind that Chapkines' initial burden is de minimis at the prima facie stage, the Court finds that Chapkines has sustained his burden of proof with respect to his age discrimination claims. See U.S. Postal Service Bd. of Governors, 460 U.S. at 716; James, 233 F.3d at 153-54. Under the McDonnell Douglas framework, the burden now shifts to defendants to present a legitimate, nondiscriminatory reason for their failure to reappoint Chapkines.
The Court is mindful that the prima facie case method established in McDonnell Douglas "is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination" and seeks to avoid "rigid, mechanized, or ritualistic" application. U.S. Postal Service Bd. of Governors, 460 U.S. at 716 (internal citations and quotations omitted). The Supreme Court further commented that if the defendant has "done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant." Id. The district court may then proceed to the inquiry as to whether the defendant intentionally discriminated against the plaintiff. Id.
B. Defendants' Legitimate, Nondiscriminatory Reasons
Defendants have articulated three reasons that they claim are legitimate, nondiscriminatory reasons for failing to reappoint Chapkines. Specifically, defendants contend that they did not reappoint Chapkines because of (1) his inappropriate remarks during the Fundamentals of Accounting course; (2) his rudeness to the staff, particularly in completing an I-9 form; and (3) his inaccessibility. (Defs.' 56.1 ¶¶ 37-38.) An employer may permissibly terminate an employee based on his inappropriate comments, perceived insubordination or disruptive behavior in the workplace. Schnabel, 232 F.3d at 87-88 (insubordination); Matima v. Celli, 228 F.3d 68, 79 (2d Cir. 2000) (disruptive behavior); Bumpus v. Runyon, 94 Civ. 2570 (DC), 1997 WL 154053, at *4 (S.D.N.Y. April 2, 1997) (inappropriate comments made to coworkers); Marlow v. Office of Court Admin. of State of N.Y., 820 F. Supp. 753, 757 (S.D.N.Y. 1993) (unresponsive, intolerant, argumentative, disrespectful and verbally combative behavior); Cutler v. Parfums Givenchy, No. 96 Civ. 9070 (LAK), 1997 WL 634171, at *2 (S.D.N.Y. Oct. 15, 1997) (repeated refusals to comply with paperwork requirements). Moreover, the burden on defendants to articulate a nondiscriminatory rationale is one of production, not persuasion. Taylor v. Potter, No. 99 Civ. 4941 (AJP), 2004 WL 1811423, at *12 (S.D.N.Y. Aug, 16, 2004) (internal citations omitted).
Defendants have presented undisputed evidence that during the Fundamentals of Accounting course, Chapkines remarked that his phone number "was just for the girls." (Chapkines Dep. Tr. at 44.) Such behavior, defendants concluded, violated their internal sexual harassment policy and undermined NYU's ability to compete with other schools in providing education in a "non-intimidating, harassment-free environment." (Negron Decl. ¶ 8; Hyde Decl. ¶ 13; Finney Decl. ¶¶ 8-9; Silver Decl. ¶ 7.) Moreover, defendants have presented evidence that Chapkines behaved rudely to staff members on numerous occasions. (McMahon Dep. Tr. at 6-8; Negron Decl. ¶¶ 11-12.) Specifically with respect to the I-9 form, Negron and Gerson both attested to the fact that Chapkines repeatedly refused to fill out the I-9 form. (Negron Decl. ¶¶ 8, 12; Hyde Decl., Ex. C.) Although he ultimately completed the form, Chapkines admitted that he did not understand why the 1-9 form was necessary and that he repeatedly questioned the Center's staff regarding the form's applicability. (Defs.' 56.1 ¶ 30; Chapkines Dep. Tr. at 36, 59, 94-95; Negron Decl. ¶ 13.) Finally, the record shows that Chapkines was difficult to contact because he did not have a telephone answering service. (Defs.' 56.1 ¶ 33; Chapkines Dep. Tr. at 27-29.) Accordingly, the Court finds that defendants' proffered reasons are legitimate, nondiscriminatory grounds for their determination not to reappoint Chapkines.
C. Chapkines' Ultimate Burden in Proving Age Discrimination
Given that defendants have presented legitimate, nondiscriminatory reasons for their decision not to reappoint Chapkines, the burden shifts back to Chapkines to show that he was "treated adversely for discriminatory reasons." Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 94 (2d Cir. 2001); McDonnell Douglas, 411 U.S. at 804. Prior to the Supreme Court's decision in Reeves v. Sanderson Plumbing Prods., 530 U.S. 133 (2000), the precedent in the Second Circuit could be read as defining that burden to include proof not only that defendants' proffered reasons were pretextual, but also that defendants' real reasons were discriminatory. See Schnabel, 232 F.3d at 88 (remarking that prior to Reeves, a district court's decision to grant summary judgment based on plaintiff's failure to present more than prima facie and pretext evidence "unquestionably would have been correct"). In Reeves, the Supreme Court limited those precedents by instructing that evidence of pretext, without more, may permit the trier of fact to reasonably infer that the employer "is dissembling to cover up a discriminatory purpose," so as to defeat summary judgment. Reeves, 530 U.S. at 147; Schnabel, 232 F.3d at 90. Such an inference, the Supreme Court reasoned, is consistent with the principle that evidence of dishonesty may show "affirmative evidence of guilt," as well as with the rationale that "once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation." Reeves, 530 U.S. at 147.
However, the Supreme Court also acknowledged instances where a plaintiff's case, consisting of only prima facie and pretext evidence, may be insufficient to defeat summary judgment. Id. at 148. For instance, an employer may be entitled to judgment as a matter of law if "the record conclusively revealed some other, nondiscriminatory reason for the employer's decision" or "if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred." Id. Ultimately, the Supreme Court deemed the propriety of judgment as a matter of law to depend on "the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law." Id. at 148-49.
Following Reeves, the Second Circuit espoused a "case-by-case" approach evaluating the entire record for a reasonable inference that an employer's adverse employment action was motivated wholly or in part by age discrimination. Schnabel, 232 F.3d at 90; see also Slattery, 248 F.3d at 93-94. At the very least, Chapkines must introduce evidence raising an issue of material fact as to whether defendants have honestly and truthfully set forth their reasons for failing to reappoint him. Weinstock v. Columbia University, 224 F.3d 33, 42 (2d Cir. 2000) (plaintiff must introduce evidence "sufficient to support a rational finding that the legitimate, non-discriminatory reasons proffered by the [defendant] were false").
In Weinstock, the Second Circuit expressly declined to address how much evidence is necessary to find pretext because the plaintiff had failed to introduce any evidence raising a triable issue of fact with regard to defendants' decision to deny her tenure. Weinstock, 224 F.3d at 42 n. 2.
Chapkines has attempted to demonstrate pretext by asserting that (1) defendants' proffered reasons underlying their decision not reappoint him were false; and (2) defendants' failure to follow their own procedures reveals that they were dissembling to cover up an illegitimate purpose. The Court will now address each of Chapkines' arguments in turn.
1. The Falsity of Defendants' Proffered Reasons a. Chapkines' Remarks During the Fundamentals of Accounting Course
Chapkines contends that defendants improperly relied on the statements made by Schmidt regarding his remarks during the Fundamentals of Accounting Course in making their decision. (Pl.'s Mem. in Opp'n to Mot. for Summary J. at 17-22.) First, he argues that the remarks were merely jokes meant to "break the tension in the class," and that other female students were not offended by those remarks. ( Id. at 19; Silver Decl., Ex B.) Second, he points out that although Schmidt expressed to Negron two reasons for her request to withdraw — namely, her perception that he lacked accounting experience and his remarks on the first day of class — Negron did not record this conversation and only relayed Schmidt's second reason to her supervisors rather than the entire conversation. ( Id. at 20.)
The record demonstrates that Chapkines admitted he wrote his phone number on the board and later stated "this is just for the girls." (Chapkines Dep. Tr. at 44.) In response, at least one female student stood up and walked out of the class and later withdrew from that course in part because of his comments. (Defs.' 56.1 ¶¶ 21-24; Schmidt Dep. Tr. at 8-9.) Although Chapkines characterizes the remarks as lighthearted humor that other students did not find offensive, he has not controverted the fact that NYU construed his behavior to constitute a violation of their sexual harassment policy. In determining pretext, the issue is whether his employer, NYU, made a good-faith business determination that these remarks violated their internal policies and could potentially drive away students. See Gallo v. Prudential Residential Servcs., Ltd. Partnership, 22 F.3d 1219, 1226 (2d Cir. 2000) (commenting that "courts should be careful not to second-guess an employer's judgment that it makes in good faith"); Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 104 (2d Cir. 2001). Even if NYU's decision could be perceived as unwise or overly sensitive, it is not the "province of the Court to sit as a super-personnel department that reexamines an entity's business decisions" absent evidence of discrimination. Faldetta v. Lockheed Martin Corp., No. 98 Civ. 2614 (RCC), 2000 WL 1682759, at *9 (S.D.N.Y. Nov. 9, 2000) (internal citations and quotations omitted); Dodson v. CBS Broadcasting Inc., No. 02 Civ. 9270 (AJP), 2004 WL 1336231, at *21 (S.D.N.Y. June 15, 2004) (collecting cases).
The fact that other female students may not have found those remarks to be offensive is simply besides the point. Similarly, Negron's failure to advise her supervisors of the other reason Schmidt articulated in withdrawing from the course — namely, her perception that Chapkines was inexperienced — does not undermine NYU's determination that those remarks violated its sexual harassment policy and could damage NYU's business reputation. While Chapkines may call into question the wisdom of defendants' decision, he has failed to rebut defendants' first justification as factually baseless and therefore pretextual. b. Chapkines' Rudeness to the Center's Staff
To the extent that Chapkines has argued that Hyde gave varying explanations regarding his student evaluations, the Court finds no merit in this contention. In a letter Chapkines wrote to Finney, he stated: "I do not understand how on December 4, 2000, Ms. Hyde spoke of `poor student evaluations' and then on December 19, 2000 said `student evaluations are not the issue, but these three issues are.'" (Finney Decl., Ex. C.) It is true that a triable issue of fact arises when an employer gives "inconsistent and varying explanations for its decision to terminate a plaintiff." Roge, 257 F.3d at 170. However, Hyde's explanation regarding the student evaluations was neither inconsistent nor varying in light of the fact that "student evaluations" is a general term that could easily encompass Schmidt's remarks. See id. (affirming summary judgment where defendant proffered explanations that were "variations on the same theme").
Chapkines contends that he has been "unfailingly polite and cooperative" in rebuttal of defendants' numerous charges that he acted rudely, combatively and confrontationally with staff members of the Center. (Pl.'s Mem. in Opp'n to Mot. for Summary J. at 8.) With regard to defendants' proffered reason that he resisted filling out an I-9 form, Chapkines responds that he promptly filled out the form, which was later found in defendants' possession. ( Id. at 8-9.) Moreover, he points to several instances which he claims demonstrate defendants' persistent contradictory statements regarding the form's existence. ( Id.)
In support of this argument, Chapkines identifies Gerson's letter, in which she stated that NYU required him to fill out the form because his Spring 2000 course had been cancelled. (Hyde Decl., Ex. C.) However, Chapkines claims, NYU had never previously required him to fill out such a form even when his courses had been cancelled for the Spring 1995 semester and Fall 1996 semester. (Pl.'s Mem. in Opp'n to Mot. for Summary J. at 8.) Additionally, Chapkines contends that Hyde's silence as to how she finally obtained the I-9 form, as well as how Negron knew that Hyde had the form (Negron Decl. ¶ 13), raise issues of material fact for trial.
While it is unclear how Chapkines' I-9 form, which he filled out and returned to Silver (Negron Decl. ¶ 13), fell through the cracks at the Center, the issues pertaining to Hyde's silence and Negron's knowledge are immaterial. At best, these issues prove that the Center was inefficiently managed and poorly coordinated, and otherwise accomplish little in advancing Chapkines' age discrimination claims.
As an initial matter, Chapkines' assertion that he was been "unfailingly polite and cooperative" to the Center's staff is unsubstantiated, self-serving and too general to address any of the encounters set forth by Negron, Gerson, McMahon and Hyde. Weinstock, 224 F.3d at 41 (unsupported allegations "do not create a material issue of fact"); Smith v. American Express, Co., 853 F.2d 151, 154 (2d Cir. 1988) (affirming summary judgment where plaintiff failed to rebut employer's justifications through specific facts contained in affidavits, deposition testimony or other admissible evidence). At best, Chapkines has raised a weak issue of fact as to whether he acted impolitely towards the Center's staff on each of these occasions.
Additionally, Chapkines has misconstrued defendants' proffered reason regarding the I-9 form as his ultimate failure in filling out the form. Contrary to what Chapkines suggests, defendants have argued that they were troubled by Chapkines' "resistance and rudeness at being asked to complete an I-9 form." (Defs.' Reply Mem. in Supp. of Mot. for Summary J. at 8.) Whether Chapkines ultimately filled out the form is irrelevant, particularly in light of Chapkines' admissions that he did not understand why he had to fill out the form and that he repeatedly questioned the Center's staff regarding its applicability. (Defs.' 56.1 ¶ 30; Chapkines Dep. Tr. at 36, 59, 94-95.) Indeed, Gerson's letter explaining why the I-9 form was necessary for his re-appointment only serves to underscore the fact that Chapkines did not comply with initial defendants' request that he fill out the form. (Hyde Decl., Ex. C.) Accordingly, the Court finds that Chapkines has failed to rebut defendants' second asserted justification as pretextual. c. Chapkines' Inaccessibility
Chapkines' only response to defendants' charge that he was rendered inaccessible because of his lack of a telephone answering service is that NYU never "broached the subject" on any prior occasion. (Pl.'s Ex. G.) Yet Chapkines admitted that he did not have a telephone answering service, and that he often returned phone calls to the Center without knowing who had called him. (Chapkines Dep. Tr. at 27-29.) Moreover, Chapkines has failed to call into question defendants' good faith with respect to their determination that he was difficult to contact. Gallo, 22 F.3d at 1226; Byrnie, 243 F.3d at 104. Accordingly, the Court also finds that Chapkines has failed to show that defendants' third reason was pretextual.
2. Defendants' Deviations From Their Policies
Chapkines's second argument regarding pretext relies on his assertion that defendants deviated from their stated policies in an effort to ensure his departure from NYU. (Pl.'s Mem. in Opp'n to Mot. for Summary J. at 23-29.) First, Chapkines asserts that Negron "specially handled" Schmidt's request for a refund by accepting it over the telephone, rather than by person, mail or fax as prescribed by the Adjunct Faculty Handbook. ( Id. at 23; Schmidt Dep. Tr. at 12; Negron Decl. ¶¶ 1, 6; Pl.'s Ex. A at 25.) Second, Chapkines contends that contrary to NYU's policy, defendants hired Jones to replace him without securing the approval of Silver and Finney. (Pl.'s Ex. A at 29.)
In her declaration, Silver states that she was "not involved in the selection of the person(s) to teach the Fundamentals of Accounting course for Spring 2001 and beyond" to the extent that she would simply defer to the decisions of the Program Coordinator and Assistant Director. (Silver Decl. ¶ 10.) Similarly, Finney states that he had no personal knowledge of who was appointed to teach the course for Spring 2001 and beyond. (Finney Decl. ¶ 12.)
Procedural irregularities may cast serious doubts over the perceived good faith of defendants if such defects reasonably affect the final determination. Weinstock, 224 F.3d at 44. Nevertheless, Chapkines has failed to show what effect, if any, Negron's approval of Schmidt's withdrawal by phone, rather than by person, mail or fax, had on defendants' decision not to reappoint him. See id. (concluding that plaintiff failed to show pretext despite procedural irregularities because they did not affect the ultimate decision to deny tenure). Similarly, Chapkines has not established a link between defendants' purported failure to involve Silver and Finney in the decision to appoint Jones to their determination not to reappoint him, except to suggest that defendants needed to "lock in" Jones as his replacement before getting rid of him. In effect, Chapkines purports to cast a wide net over all of the defendants, ensnaring them in a tenuous conspiracy theory that defendants engaged in an elaborate scheme to remove him from NYU. However, he has failed to present any evidence in support of these conclusory allegations. Smith, 853 F.2d at 154. Accordingly, the Court finds that Chapkines' evidence based on any perceived procedural deviations fails to establish pretext.
Ultimately, Chapkines has, at best, raised a weak issue of material fact regarding his behavior towards the Center's Staff based on his own statement that he fully cooperated with staff. However, a plaintiff must "produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the [defendant] were false, and that more likely than not [discrimination] was the real reason for the [employment action]." Weinstock, 224 F.3d at 42 (internal citations and quotations omitted) (emphasis added). The Court thus expresses grave doubts as to whether Chapkines' assertion that he was "unfailingly polite" alone merits the conclusion that defendants' proffered reasons served as a pretext for age discrimination.
Even if this Court were to "find this evidence sufficient to raise a fact question as to pretext, such a determination would not end [the] inquiry." Slattery, 248 F.3d at 93. In evaluating the record in its entirety, the Court finds scant evidence supporting Chapkines' claim that age discrimination played a factor in defendants' decision not to reappoint him. Id. Chapkines' prima facie case is extremely weak, to the extent that the only evidence presented to establish age discrimination is the fact that Jones, a substantially younger person, was hired to teach the course that Chapkines once taught. The record shows that defendants never discussed Chapkines' age or engaged in age-related comments, criticisms or age-disparaging behavior; nor has Chapkines suggested as much. See Schnabel, 232 F.3d at 91. Indeed, Chapkines admits that he has no direct evidence that any of the defendants acted in a manner that suggested age discrimination. (Defs.' 56.1 ¶¶ 87-97.) Significantly, defendants have presented legitimate, non-discriminatory reasons for their decision. While those reasons may appear silly, petty or spiteful to outsiders, Chapkines failed to make a viable showing that they were pretextual. See Dodson, 2004 WL 1336231, at *21.
In this context, no reasonable juror could find that defendants discriminated against Chapkines based solely on Jones' appointment to teach the Fundamentals of Accounting course and his insistence that he was polite to the Center's Staff. The circumstances surrounding defendants' decision are hardly indicative of foul play in any sense. While it may be true that defendants got rid of Chapkines without the respect he felt he deserved, there is simply no evidence — indirect or direct — supporting his view that age discrimination was a determinative factor in defendants' decision. Schnabel, 232 F.3d at 91 (affirming district court's decision to grant summary judgment where plaintiff failed to show that "age was a determinative factor in defendants' decision to fire him"). Accordingly, the Court grants defendants summary judgment on Chapkines' age discrimination claims brought pursuant to the ADEA, NYSHRL, and NYCHRL.
III. Conclusion
The Court grants summary judgment to defendants on all of Chapkines' claims, thereby dismissing this action in its entirety. The Clerk of the Court is directed to close the case.
SO ORDERED.