Greene v. Brentwood Union Free Sch. Dist.

• Decision Date: 13 August 2013
• Docket Number: No. 11–CV–4308 (SJF)(ARL).,11–CV–4308 (SJF)(ARL).
• Citation: 966 F.Supp.2d 131
• Parties: Betty F. Brown GREENE, Plaintiff, v. BRENTWOOD UNION FREE SCHOOL DISTRICT, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

966 F.Supp.2d 131

Betty F. Brown GREENE, Plaintiff,

v.BRENTWOOD UNION FREE SCHOOL DISTRICT, et al., Defendants.

No. 11–CV–4308 (SJF)(ARL).

United States District Court,

E.D. New York.

Aug. 13, 2013.

Harriet A. Gilliam, Law Office of Harriet A. Gilliam, Riverhead, NY, for Plaintiff.

Lewis R. Silverman, Caroline Beth Lineen, Rutherford & Christie, LLP, New York, NY, for Defendants.

ORDER

FEUERSTEIN, District Judge.

On September 8, 2011, plaintiff Betty F. Brown Greene (“plaintiff”) commenced this action against the Brentwood Union Free School District (the “District”), the Board of Education of the District (the “Board”), Board members George Talley, Lorraine Pace, Stephen Coleman, and Ronald Jimenez, Superintendent Donna Jones, and Assistant Superintendent Joan Lange (collectively, “defendants”), alleging that defendants discriminated and retaliated against her in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. (“Title VII”) and 42 U.S.C. § 1983. [Docket Entry No. 1]. On December 19, 2012, defendants filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. [Docket Entry No. 49]. Now before the Court is the Report and Recommendation of Magistrate Judge Arlene R. Lindsay, dated April 9, 2013, recommending that defendants' motion for summary judgment be granted on the grounds that: (1) plaintiff has failed to establish a prima facie case of discrimination because the evidence offered does not demonstrate that she (a) suffered an adverse employment action or (b) was qualified for the position to which she was denied promotion; and (2) even if a prima facie case were established, she has failed to rebut the non-discriminatory reasons for her treatment offered by defendants. [Docket Entry No. 69] (the “Report”). Plaintiff has filed objections to the Report. [Docket Entry No. 70] (“Objections”). For the following reasons, plaintiff's objections are overruled, and the Court adopts Magistrate Judge Lindsay's Report in its entirety.

I. Standard of Review

Rule 72 of the Federal Rules of Civil Procedure permits a magistrate judge to conduct proceedings of dispositive pretrial matters without the consent of the parties. Fed. R. Civ. P. 72(b). Any portion of a report and recommendation on dispositive matters to which a timely objection has been made is reviewed de novo.28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). However, “when a party makes only conclusory or general objections, or simply reiterates the original arguments, the Court will review the report strictly for clear error.” Frankel v. City of N.Y., Nos. 06 Civ. 5450, 07 Civ. 3436, 2009 WL 465645, at *2 (S.D.N.Y. Feb. 25, 2009). The Court is not required to review the factual findings or legal conclusions of the magistrate judge as to which no proper objections are interposed. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). To accept the report and recommendation of a magistrate judge on a dispositive matter to which no timely objection has been made, the district judge need only be satisfied that there is no clear error on the face of the record. SeeFed. R. Civ. P. 72(b); Johnson v. Goord, 487 F.Supp.2d 377, 379 (S.D.N.Y.2007), aff'd,305 Fed.Appx. 815 (2d Cir.2009); Baptichon v. Nevada State Bank, 304 F.Supp.2d 451, 453 (E.D.N.Y.2004), aff'd,125 Fed.Appx. 374 (2d Cir.2005). Whether or not proper objections have been filed, the district judge may, after review, accept, reject, or modify any of the magistrate judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

II. Plaintiff's Objections

A. Standard of Review

Plaintiff asserts that Magistrate Judge Lindsay applied the incorrect standard of review to the motion for summary judgment by “tak[ing] as undisputed most of the Defendants' Statements, notwithstanding the fact that plaintiff denied most of said Statement and submitted a Counter Statement of Facts.” Objections at 7. Plaintiff therefore requests “that this Court conduct a de novo review of the entire record to ascertain issues of disputed fact necessary to overcome summary judgment, especially where the defendants' state of mind and intent are at issue.” Id. at 5.

Magistrate Judge Lindsay applied the proper standard of review, stating that the parties' Rule 56.1 Statements were “construed in the light most favorable to the non-moving party” and that “[t]he facts set forth in [the] [R]eport are taken from either the uncontested facts in the defendants' Rule 56.1 Statement or the documentary evidence submitted by the parties in connection with [the] motion.” Report at 2, n. 2. Magistrate Judge Lindsay also noted that “many of the exhibits annexed to counsel for the plaintiff's declaration are copies of the same documents produced by the defendants in support of their motion.” Id. It is clear from the Report that Magistrate Judge Lindsay thoroughly considered the evidence presented, and plaintiff has failed to identify any specific statements by defendants that were improperly accepted as true or any evidence that was improperly ignored. Except insofar as plaintiff raises specific objections, which are addressed in further detail below, the Court will not undertake an independent de novo review of the record upon the basis of this conclusory objection. Therefore, the objection is overruled.

B. Direct Evidence of Discriminatory Animus

Magistrate Judge Lindsay determined that plaintiff has failed to present direct evidence of Talley's discriminatory animus and that plaintiffs claims are therefore subject to the McDonnell Douglas burden-shifting test. Report at 15; see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985) (“[T]he McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination.”). Plaintiff argues that she has offered direct evidence of Taliey's discriminatory animus, including: (1) O'Brien's deposition testimony that “he has no reason to disbelieve” Frank Scimeca's statement in an affidavit that Talley had made racially discriminatory comments in the past; and (2) Jones' deposition testimony that she believed Talley had made racially discriminatory statements about her. Objections at 7–8.

“[T]he evidence proffered by the party opposing summary judgment must be of a type that would be admissible at trial.” Cerqua v. Stryker Corp., No. 11 Civ. 9208, 2013 WL 1752284, at *4 (S.D.N.Y. Apr. 23, 2013), and therefore “hearsay testimony that would not be admissible if testified to at trial may not properly be set forth in the Rule 56(e) affidavit,” Beyah v. Coughlin, 789 F.2d 986, 989 (2d Cir.1986) (internal quotation marks and alterations omitted); see also Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir.1985) (“[The non-moving party] cannot rely on inadmissible hearsay in opposing a motion for summary judgment, absent a showing that admissible evidence will be available at trial.”) (citations omitted). Magistrate Judge Lindsay correctly found that “[t]he testimony of O'Brien and Jones commenting on the affidavit of a co-worker in which he reiterates derogatory statements allegedly made by Talley is inadmissible hearsay,” and therefore does not constitute direct evidence of Talley's discriminatory animus. Report at 18. Although plaintiff argues that “the reference to the affidavit of Scimeca should have been considered as further evidence of Talley's propensity for making discriminatory remarks about African Americans and women since it is a sworn affidavit,” Objections at 8, she only offered as evidence the testimony of O'Brien and Jones about Scimeca's affidavit, not the affidavit itself. The Court also agrees with Magistrate Judge Lindsay that, even if there were admissible evidence of Talley's past comments, they are “not probative of the defendants' motive for taking action against Greene,” Report at 18, because the comments are “remote and oblique ... in relation to the employer's adverse action,” Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 115 (2d Cir.2007), abrogated in part on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177–78, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009).

Plaintiff also relies upon O'Brien's testimony that he heard Talley make a comment about Christopher Dowdy's race when he applied for a position as an Assistant Principal and argues that Magistrate Judge Lindsay erred in deeming the comment about Dowdy a “ ‘stray remark’ not aimed at [plaintiff]” and thus not probative of Talley's discriminatory intent in this case. Report at 17 n. 19. Plaintiff notes that the Second Circuit has held that “stray remarks” should be considered in the context of all the evidence to determine whether they may support a reasonable inference of discriminatory animus and not “first ... categorized either as stray or not stray and then disregarded if they fall into the stray category.” Tomassi, 478 F.3d at 116.

Magistrate Judge Lindsay's finding that Talley's comment about Dowdy did not support a reasonable inference of discriminatory animus in this case was not based upon a rigid characterization of the comment as “stray” or “not stray,” but rather was consistent with the Second Circuit's guidance that “the more remote and oblique the remarks are in relation to the employer's adverse action, the less they prove that the action was motivated by discrimination.” Id. at 115;see also Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir.2010) (“In determining whether a remark is probative, [district courts in the Second Circuit] have considered four factors: (1) who made the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror...