NEEDREPLACE, No. 2:09–CV–0407 (JFB)(WDW).

CourtNew York District Court
Writing for the CourtJOSEPH F. BIANCO
Citation7 F.Supp.3d 304
PartiesDominick J. SIANI, Plaintiff, v. STATE UNIVERSITY OF NEW YORK AT FARMINGDALE, et al., Defendants.
Docket NumberNo. 2:09–CV–0407 (JFB)(WDW).
Decision Date28 March 2014

7 F.Supp.3d 304

Dominick J. SIANI, Plaintiff,

No. 2:09–CV–0407 (JFB)(WDW).

United States District Court, E.D. New York.

Signed March 28, 2014

Defendants' motion denied in part and granted in part; plaintiff's motions denied.

[7 F.Supp.3d 310]

Dominick J. Siani, Smithtown, NY, pro se.

John L. Belford, IV, Patricia M. Hingerton, State of New York, Office of Attorney General, Hauppauge, NY, Mark J. Lemire, The State University of New York, Albany, NY, for Defendants.


JOSEPH F. BIANCO, District Judge:

Pro se plaintiff Dominick J. Siani (hereinafter “plaintiff”) brought this action against his employer, the State University of New York (SUNY) and the State University of New York at Farmingdale (SUNY(F)), as well as W. Hubert Keen, Lucia Cepriano, Stephen Havlovic, Marti Anne Ellerman, Seth Gilbertson, Lorraine Greenwald, Francine Federman, Richard Vogel, Matilda Fava, Anthony Giffone, Judith Levine, Daniel Marrone, William Steedle, Socrates Thanasas, and Kathleen Walsh (collectively “defendants”), alleging violations of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et. seq., the Fourteenth Amendment, and various claims under New York state law. This action has been consolidated under the same docket number as an earlier age-discrimination case, begun in 2009, that involves some of the same defendants. The Court has already decided a summary judgment motion in that case, and denied summary judgment with respect to certain claims.

Pending before the Court are five motions: defendants' motion for partial summary judgment, and plaintiff's motions requesting that the Court impose sanctions for spoliation and attorney misconduct, compel production of documents withheld under the attorney-client privilege, and strike portions of an affidavit. Plaintiff's four motions are discussed in more detail in section III, infra, but in short they are denied because plaintiff did not meet his burden under the applicable legal standards.

Defendants' summary judgment motion is denied in part and granted in part. Plaintiff's core claim is that, when he was considered for reappointment as a professor, SUNY(F) and its officials denied his reappointment and terminated him immediately in retaliation for his earlier age-discrimination litigation against SUNY(F) and some of those same officials. After dismissing several of plaintiff's claims as a matter of law, the Court applies the burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) to plaintiff's remaining causes of action under the ADEA, 42 U.S.C. § 1983, and the New York Human Rights Law (NYHRL), and concludes that, if all of plaintiff's evidence is credited and all reasonable inferences are drawn in his favor, a reasonable jury could find that plaintiff was not reappointed and instead terminated because of his earlier age-discrimination lawsuits. Therefore, the Court denies summary judgment as to Keen in his official capacity on the retaliation claim under the ADEA and § 1983, which can only proceed with respect to injunctive relief. Similarly, the Court concludes, with respect to the retaliation claims under the NYHRL against the individual defendants, that there is sufficient evidence to survive summary judgment as to certain defendants. Therefore, the Court denies defendants' summary judgment motion as to the retaliation claim under the NYHRL with

[7 F.Supp.3d 311]

respect to defendants Keen, Cepriano, and Vogel only, because those are the only defendants whom a rational jury could find had a retaliatory motive, when viewing the evidence in a light most favorable to plaintiff, and whose participation in the employment decision made retaliation the “but for” cause of plaintiff not being reappointed and, instead, being terminated. Plaintiff's evidence concerning the remaining individual defendants could not, even if credited, convince a reasonable jury that plaintiff suffered any adverse action as a result of any discrimination or retaliation by them.

The Court also grants summary judgment with respect to plaintiff's state-law causes of action for defamation and breach of contract. In short, the statement at issue in the defamation cause of action is a statement of opinion, not fact, and it is also privileged. The breach of contract claim alleges that defendants did not conduct plaintiff's reappointment in accordance with a Stipulation of Settlement executed during the prior litigation, but the only party to that contract in his individual capacity was Keen, and a reasonable jury could not conclude that he breached the provisions of the Stipulation cited by plaintiff.

I. Background

Plaintiff has been involved in age-discrimination litigation against SUNY(F) since 2005. For background purposes, some of the litigation is described below, followed by a discussion of the facts pertinent to the present motion.

A. Procedural History

Plaintiff was an adjunct professor at SUNY(F) who, in 2005, sued the school for age discrimination he allegedly encountered when he sought to become a full-time professor. In 2007, he settled that lawsuit and, pursuant to a Stipulation of Settlement (“Stipulation”), was made a full-time, tenure-track Assistant Professor. (Stipulation ¶ 3.) The Stipulation provided that plaintiff would be appointed to a three-year term from 2007 to 2010, followed by a two-year term in the same position from 2010 to 2012. ( Id.)

On January 30, 2009, plaintiff filed another lawsuit against SUNY(F) and various individuals, alleging age discrimination related to his attempt to become chairman of the Business Management Department. On June 7, 2011, defendants moved for summary judgment. The Court denied summary judgment on most claims on December 15, 2011.

On August 26, 2011, while the summary judgment motion was pending, plaintiff was fired from his position as Assistant Professor, after a reappointment process that is described in more detail below. On February 6, 2012, plaintiff filed a new complaint under a different docket number, alleging that his termination was in retaliation for his lawsuit and motivated by age discrimination. That complaint has since been amended (“the supplemental complaint”) and the case was consolidated under the current docket number with the case begun in 2009.

The supplemental complaint contains seven causes of action alleging age discrimination and retaliation by SUNY, SUNY(F), and the fifteen individual defendants named in the first paragraph of this Memorandum and Order. Of the individuals, five were also named in the 2009 lawsuit related to the department chairmanship, while ten were new to this litigation. All fifteen individual defendants allegedly played some role in plaintiff's termination.

On June 3, 2013, defendants filed the present motion for partial summary judgment with respect to the supplemental complaint. The Court's decision on the

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previous motion for summary judgment, issued on the record on December 15, 2011, remains intact.1

B. Factual Background

As noted, plaintiff became a full-time faculty member at SUNY(F) in 2007 under the terms of the Stipulation, which also addressed SUNY(F)'s future hiring decisions with respect to plaintiff. One provision—now the basis for plaintiff's breach of contract claim—required that any future hiring decision be conducted in accordance with SUNY and SUNY(F) policies and by-laws, and with the collective bargaining agreement that applied to plaintiff. (Stipulation ¶ 3(f).) Another provision, however, created an exception to the normal reappointment process, and required that if plaintiff was ever considered for reappointment, Keen (the President of SUNY(F)) would designate another person to recommend whether plaintiff should be reappointed, and Keen would accept that recommendation. ( Id. ¶ 3(i).) Normally, Keen makes the ultimate determination whether faculty should continue to be employed (Def. 56.1 ¶ 191), although his decision follows a series of evaluations and recommendations by a committee within the candidate's department, a committee at the college level, and various administrators, including the applicable department chair, dean, and provost (Def. 56.1 ¶ 8; Pl. 56.1 ¶¶ 204–05).

In February 2011, plaintiff submitted a portfolio to the acting chair of his department (Business Management), seeking to be reappointed after the expiration of the terms established in the Stipulation. (Def. 56.1 ¶ 7.) From there, the evaluation of plaintiff's portfolio followed the normal process of sub-presidential evaluations and recommendations. First, plaintiff was reviewed in his own department, where he was recommended for reappointment by both the departmental committee and the department chair, Dr. Francine Federman. ( Id. ¶¶ 12–13.) Although Federman recommended plaintiff's reappointment, she is a named defendant because of reservations she expressed and material she included in plaintiff's portfolio. In particular, plaintiff argues that the inclusion of her observation report (concerning plaintiff's teaching) is a substantive due process violation. As is discussed more fully below, plaintiff contends that such reports are normally three pages long, but Federman added 38 pages of course material to her two-page report, making the report “unduly burdensome” in plaintiff's reappointment portfolio. (Pl. 56.1 ¶ 421.)

Next, plaintiff's portfolio went to the College Academic Faculty and Continuing and Term Appointment Committee (“CCTA”), which also issues a non-binding recommendation. (Def. 56.1 ¶ 20.) In past years, the CCTA did not make recommendations concerning candidates like plaintiff, who were seeking reappointment as opposed to tenure. ( Id. ¶ 31.) At the beginning of the 2010–11 academic year, however, the CCTA decided that it would vote on reappointment portfolios as well. ( Id. ¶ 30.) The parties...

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