Roth v. Farmingdale Pub. Sch. Dist., 14-CV-6668 (JFB) (ARL)

Decision Date30 January 2017
Docket NumberNo. 14-CV-6668 (JFB) (ARL),14-CV-6668 (JFB) (ARL)
PartiesJEFF S. ROTH, Plaintiff, v. FARMINGDALE PUBLIC SCHOOL DISTRICT, Defendant.
CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

Jeff S. Roth ("Roth" or "plaintiff"), proceeding pro se and in forma pauperis, filed a Second Amended Complaint ("SAC") against the Farmingdale Union Free School District1 ("District" or "defendant") on March 28, 2016, alleging that the District violated Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e; the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621 et seq.; the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12112 et seq.; and the First and Fourteenth Amendments of the United States Constitution. Plaintiff also asserts various New York State law claims. Specifically, plaintiff alleges that defendant discriminated and retaliated against him by failing to hire him, and that defendant violated plaintiff's rights to Free Speech and Due Process. Plaintiff also claims that defendant slandered him and violated New York's Open Meetings Law and Freedom of Information Law.

By Memorandum and Order dated February 26, 2016 (the "Memorandum and Order"), the Court granted in part and denied in part defendant's motion to dismiss plaintiff's First Amended Complaint ("FAC"). Roth v. Farmingdale Pub. Sch. Dist., No. 14-CV-6668 (JFB) (ARL), 2016 WL 767986 (E.D.N.Y. Feb. 26, 2016). The Court found that: (1) plaintiff's Title VII and ADA claims alleging discrimination werebarred for failure to exhaust administrative remedies; (2) plaintiff's ADEA claim was barred by the statute of limitations; and (3) plaintiff failed to state a cause of action with respect to his Title VII retaliation claim. Id. at *1. However, in an abundance of caution, the Court granted plaintiff leave to re-plead those claims. Id. The Court specifically directed plaintiff to provide grounds for equitable tolling and to allege how the events and incidents described in the FAC were taken on the basis of plaintiff's protected status under Title VII, the ADEA, and the ADA, such that a plausible discrimination or retaliation claim exists. Id. The Court also dismissed the state slander claim, but granted plaintiff leave to re-plead so as to allege the time, place, and manner of the purportedly false statements, as well as to whom the statements were made. Id. Finally, the Court denied defendant's motion to dismiss plaintiff's First and Fourteenth Amendment claims after concluding that plaintiff had stated plausible causes of action.2 Id. at *9-11.

Plaintiff subsequently filed the SAC, and defendant now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the following grounds: (1) plaintiff failed to re-plead his Title VII, ADEA, ADA, and slander claims; (2) plaintiff failed to exhaust his Title VII and ADA discrimination claims; (3) plaintiff's ADEA claim is (a) barred by the statute of limitations or, alternatively, (b) fails to state a claim; (4) plaintiff failed to state a Title VII retaliation claim; (5) plaintiff failed to state a First Amendment claim; (6) plaintiff failed to state a Fourteenth Amendment Due Process claim; and (7) plaintiff failed to state his New York State law claims.3

For the reasons set forth below, defendant's motion is granted. As a threshold matter, the Court determines that plaintiff failed to comply with the Memorandum and Order because he has not sufficiently demonstrated, either in the SAC or in his opposition to the instant motion, that equitable tolling exempts his Title VII, ADEA, and ADA discrimination claims from the exhaustion and limitations bars to justiciability. In addition, the Court determines that there are no material issues of fact that support plaintiff's Title VII retaliation claim, or his Free Speech and Due Process claims. Finally, the Court, in its discretion, declines to exercise supplemental jurisdiction over plaintiff's New York claims and dismisses them without prejudice to re-filing in state court.

I. BACKGROUND
A. Facts

The following facts are taken from defendant's Rule 56.1 statement4 ("Def.'s56.1," ECF No. 74), as well as the parties' affidavits and exhibits. Unless otherwise noted, the facts are either undisputed or uncontroverted by admissible evidence. Upon consideration of the motion for summary judgment, the Court shall construe the facts in the light most favorable to plaintiff as the nonmoving party, and will resolve all factual ambiguities in his favor. See Capobianco v. New York, 422 F.3d 47, 50 n.1 (2d Cir. 2001).

1. Plaintiff's Employment Application with the District

In 2010, plaintiff applied for a provisional Audio Visual Technician position with the District, a job that required minimum qualifications established by the Nassau County Civil Service Commission. (Def.'s 56.1 ¶¶ 1-2; Aff. of Susan M. Gibson ("Gibson Aff."), ECF No. 72, Ex. LL.) Plaintiff was initially interviewed by Barbara Pandolfo ("Pandolfo"), Jeffrey Pritzker ("Pritzker"), and Glen Zakian ("Zakian"), and he had a second-round interview with Pritzker. (Def.'s 56.1 ¶ 3.) After the interview process was complete, Pandolfo, Pritzker and Zakian recommended that another candidate, Joseph Hassett ("Hassett"), be appointed to the provisional position of Audio Visual Technician. (Def.'s 56.1 ¶ 4.) Pandolfo, Pritzker, and Zakian have attested that they did not know of or consider plaintiff's age, marital status, or arrest record when making their recommendation.5 (Def.'s 56.1 ¶ 4; Gibson Aff. Exs. MM, NN, OO.)

Shortly thereafter, in or about 2011, a Civil Service Examination was administered to fill permanently the District Audio Visual Technician position, and both plaintiff and Hassett applied. (Def.'s 56.1 ¶ 6; Gibson Aff. Ex. LL.) Following the examination, Hassett finished tied for seventh out of the fourteen applicants, and plaintiff finished tied for twelfth. (Def.'s 56.1 ¶ 10.) The District offered a probationary appointment for the position of Audio Visual Technician to Hassett, who accepted and was appointedon or about October 13, 2011. (Def.'s 56.1 ¶¶ 12-13; Gibson Aff. Ex. LL.)

2. Plaintiff's 2007-2013 Interactions with District Employees and Board of Education Members

Plaintiff became a member of the District Facilities Advisory Committee in or about 2007 and began attending District Board of Education meetings in 2011. (Def.'s 56.1 ¶¶ 15-16.) In May 2012, plaintiff had a meeting with then-District Board of Education President Shari Bardash-Eivers ("Bardash-Eivers") and other Board of Education trustees at the Farmingdale Public Library, where they discussed audiovisual and information technology issues in the District. (Def.'s 56.1 ¶ 17; Gibson Aff. Ex. PP.) On or about May 16, 2013, Bardash-Eivers received an email from a District employee informing her that plaintiff had appeared at the District High School during a student music rehearsal and asked students and District employees questions about ideas for new technology and equipment. (Def.'s 56.1 ¶ 19; Gibson Aff. Ex. PP.) Shortly thereafter, plaintiff attempted to enter the High School auditorium during a student concert, and when security personnel told plaintiff to leave, he refused. (Def.'s 56.1 ¶¶ 20-21; Gibson Aff. Exs. I, PP.)

On or about May 23, 2013, District Superintendent of Schools John Lorentz ("Lorentz") sent plaintiff a letter directing plaintiff to send all communications to the District to Lorentz's office. (Def.'s 56.1 ¶ 22; Gibson Aff. Ex. BB.) The purpose of that correspondence was "to address concerns . . . regarding representations made by [plaintiff], [plaintiff's] interactions with students and staff, and [plaintiff's] presence in District schools." (Gibson Aff. Ex. BB.) The letter stated that it was "not [Lorentz's] intention to create an adversarial relationship with [plaintiff]" or to "interfer[e] with [plaintiff's] right to discuss issues at Board meetings," but said that plaintiff's "actions ha[d] resulted in complaints and appear[ed] to be in derogation of law," and that it was "important that [plaintiff] recognize the[se] concerns [because] [f]ailure to comply with these directives may result in legal action." (Id.)

Nevertheless, on or about May 29, 2013, plaintiff entered an invitation-only Student Award Ceremony to which he had not been invited and was asked to leave. (Def.'s 56.1 ¶ 23; Gibson Aff. Exs. W, QQ.) On or about May 30, 2013, plaintiff left three voicemails on District Board of Education Member Michael Goldberg's ("Goldberg") personal cell phone, and at the end of the second voicemail, plaintiff said: "[G]ive me a call when you have a chance, don't be on a gag order from the District that's retarded." (Def.'s 56.1 ¶ 24; Gibson Aff. Ex. R). In the third voicemail, plaintiff told Goldberg about the May 23, 2013 letter from Lorentz, but asked if Goldberg would continue speaking with plaintiff despite Lorentz's direction that plaintiff only communicate with the District via Lorentz's office. (Def.'s 56.1 ¶ 25.)

Subsequently, on or about June 14, 2013, plaintiff approached Bardash-Eivers at a post office to discuss the reasons why he should have received the position of Audio Visual Technician in 2010. (Def.'s 56.1 ¶ 26; Gibson Aff. Ex. I.) Plaintiff told Bardash-Eivers that Lorentz was "condescending and cocky and ha[d] it out for" plaintiff, and that "Lorentz need[ed] to go sooner than later." (Id.) Following that interaction, Bardash-Eivers filed a police report concerning plaintiff. (Id.) Further, on or about June 17, 2013, Bardash-Eivers responded to an e-mail plaintiff had sent her and instructed him toavoid personal contact with her and other District Board Members. (Def.'s 56.1 ¶ 27; Gibson Aff. Exs. I, CC.) In addition, after plaintiff sent a letter to Lorentz and the District Board of Education regarding that e-mail exchange, Bardash-Eivers sent a letter to plaintiff on or about ...

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