Senno v. Elmsford Union Free Sch. Dist.

• Decision Date: 28 July 2011
• Docket Number: No. 08 Civ. 2156 (KMW).,08 Civ. 2156 (KMW).
• Citation: 812 F.Supp.2d 454,276 Ed. Law Rep. 241
• Parties: Michael SENNO, Plaintiff, v. ELMSFORD UNION FREE SCHOOL DISTRICT, Carol Franks–Randall, individually, Betty Funny–Crosby, individually, Matthew R.C. Evans, individually, and Debra B. Lawrence, individually, Defendants.
• Court: U.S. District Court — Southern District of New York

276 Ed. Law Rep. 241

812 F.Supp.2d 454

Michael SENNO, Plaintiff,

v.ELMSFORD UNION FREE SCHOOL DISTRICT, Carol Franks–Randall, individually, Betty Funny–Crosby, individually, Matthew R.C. Evans, individually, and Debra B. Lawrence, individually, Defendants.

No. 08 Civ. 2156 (KMW).

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

July 28, 2011.

Jonathan Lovett, Lovett & Gould, White Plains, NY, for Plaintiff.

Steven Charles Stern, Sokoloff Stern LLP, Westbury, NY, for Defendants.

OPINION and ORDER

KIMBA M. WOOD, District Judge.

Plaintiff Michael Senno (“Plaintiff”) brings this action pursuant to Title VII, 42 U.S.C. § 2000e et seq., against Defendants Elmsford Union Free School District (the “District”); Carol Franks–Randall, individually (“Dr. Franks–Randall”); Betty Funny–Crosby, individually (“Ms. Funny–Crosby”), Matthew R.C. Evans, individually (“Mr. Evans”); and Debra B. Lawrence, individually (“Ms. Lawrence”) (collectively, the “Defendants”). Plaintiff alleges that Defendants collectively violated his rights under Title VII by engaging in gender discrimination, and retaliation for Plaintiff's filing of a complaint with the Equal Employment Opportunity Commission (“EEOC”).

Defendants move, pursuant to Rule 56 of the Federal Rules of Civil Procedure (“Rule 56”), for summary judgment dismissing the complaint. For the reasons stated below, Defendants' motion is GRANTED in part and DENIED in part, as to the District; and GRANTED as to the individual Defendants.

I. BACKGROUNDA. Factual Background

1. Parties

Unless otherwise noted, the following facts are undisputed and are derived from the parties' Local Civil Rule 56.1 statements, affidavits, and other submissions. The Court construes all evidence in the light most favorable to the non-moving party and draws all inferences in the non-moving party's favor.¹ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Plaintiff is the former Deputy Superintendent for the District (Defendants' Local Civil Rule 56.1 Stmt. (hereinafter “Defs.' 56.1 Stmt.”) ¶ 19.) He was appointed to that role in 2005, having previously served as an Assistant Superintendent for Business Affairs for the District since 1993. ( Id. ¶¶ 1, 17.) He received tenure in approximately 1994. ( Id. ¶ 2.) He was also the District Clerk until January 2008, and was appointed a sexual harassment officer for the District in 2005. ( Id. ¶¶ 14, 15.) He occupied the role of Deputy Superintendent until disciplinary charges were issued against him in February 2008, at which time he was suspended with pay during the pendency of hearings pursuant to New York State Education Law § 3020–a (“Section 3020–a” or “3020–a”). ( Id. ¶¶ 231–32, 238.) Following the hearings, at the recommendation of the Hearing Officer, in December 2009, Plaintiff's job was terminated by vote of the District Board of Education (the “Board”).

Defendant Franks–Randall was, at all times relevant to this case, the Superintendent of the District, until her retirement in June 2008. ( Id. ¶¶ 3, 9; Stern Declaration in Support of Defs.' Motion for Summary Judgment (“Stern Dec.”) Exs. A and B, Complaint and Amended Answer.)

Defendants Funny–Crosby, Evans and Lawrence were, at all times relevant to this case, members of the Board. (Stern Dec. Exs. A and B.)

2. Sequence of Events

The events relevant to this case began with a consensual sexual affair between Plaintiff and another administrator in the district, Dr. Sandra Calvi–Muscente (“Dr. Calvi”). During the affair, which lasted roughly from September 2005 through June 2007 (Defs. 56.1 Stmt. ¶¶ 61, 77), Dr. Calvi was the Assistant Principal of the District's Junior/Senior High School. ( Id. ¶ 20.) At that time, she was also a member of the Board of Education of the Mahopac Central School District. (Pl.'s 56.1 Stmt. ¶ 457.) She was also a District sexual harassment officer. ( Id. ¶ 345.)

The parties vigorously dispute how to characterize where Plaintiff and Dr. Calvi sat in the District hierarchy vis a vis one another. Plaintiff insists that he was not Dr. Calvi's direct supervisor and that they were not in the same chain of command. ( Id. ¶¶ 346–351.) Defendants state that, as Deputy Superintendent, Plaintiff was the second highest ranked official in the District, that he had the authority to direct Dr. Calvi to do things, that she brought certain disciplinary matters to his attention, and that he approved a percentage in the District budget for Dr. Calvi's raises. (Defs. 56.1 Stmt. ¶¶ 26–40.) Although the Court is not able to resolve all of these factual disputes on this record, it is undisputed that Plaintiff was ranked higher in the District hierarchy than Dr. Calvi, and that, although his job involved the business, rather than instructional, aspects of District operations, he was also occasionally involved with supervision (and discipline) of instructional staff. ( Id. ¶¶ 42–50.)

The affair between Plaintiff and Dr. Calvi was kept secret until June 2007. ( Id. ¶ 110.) In fact, on two separate occasions—once in January 2006, and once in early June 2007—Dr. Franks–Randall asked Plaintiff directly if he was having an affair with Dr. Calvi, and both times he denied it. ( Id. ¶¶ 65–66, 103.) On June 4, 2007, Dr. Calvi informed Plaintiff's wife of the affair. ( Id. ¶ 110.) On June 18, 2007, Plaintiff admitted to Dr. Franks–Randall that he had been having an affair with Dr. Calvi. ( Id. ¶ 111.) He also described his efforts to end the relationship, as well as the alleged threats and harassment against him by Dr. Calvi during the dissolution of the relationship. (Pl.'s 56.1 Stmt. ¶¶ 380–82.) At a meeting held that week between Plaintiff, Dr. Franks–Randall, and an attorney for the District, the attorney stated that Dr. Calvi had the “trump card” because Plaintiff was her superior, and that Dr. Calvi could therefore sue the District and/or Plaintiff personally in connection with the affair. (Defs. 56.1 Stmt. ¶ 127; Pl.'s 56.1 Stmt. ¶¶ 389–90.)

Later in June 2007, Plaintiff apologized to the Board and to Dr. Franks–Randall for engaging in the affair. (Defs. 56.1 Stmt. ¶ 132.) Initially, Dr. Franks–Randall and the Board expressed support for Plaintiff and told him that they would forgive him for the affair. ( Id. ¶ 133.) Dr. Franks–Randall and members of the Board told Plaintiff that “everything was going to be ok” and “it was all going to go away.” (Pl.'s 56.1 Stmt. ¶¶ 393.) Plaintiff received a 6% salary raise at the end of June 2007. (Defs. 56.1 Stmt. ¶¶ 134.)

On August 14, 2007, Dr. Calvi approached Dr. Franks–Randall and attorneys for the District to discuss Plaintiff's handling of an earlier sexual harassment complaint Dr. Calvi had made against another District employee, David Leis. In the course of that meeting, Dr. Calvi also raised a series of other allegations of misconduct by Plaintiff, including, inter alia, that it was Plaintiff who harassed her and made inappropriate comments to her during their relationship; that Plaintiff shared certain confidential information with her; and that he had asked her to perform a reading evaluation of his daughter. ( Id. ¶¶ 135–60.) On August 20, 2007, Dr. Franks–Randall and counsel for the district met with Plaintiff to question him about these new allegations, but Plaintiff declined to answer questions and stated that he wanted to retain an attorney. ( Id. ¶¶ 164–67.) The next day, Plaintiff, through his attorney, filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) alleging “reverse sexual harassment” by Dr. Calvi, and alleging that the District “has been made aware of [Dr. Calvi's] predatory sexual behavior ... and has failed to take remedial, much less prompt remedial action.” ² (Stern Dec. Ex. U, EEOC Charge, Filed August 21, 2007.) That same day, Plaintiff's counsel faxed a letter to Dr. Franks–Randall advising her that the EEOC complaint had been filed and stating “that it is a violation of federal law to take adverse employment action against anyone by reason of such a filing. Under these circumstances I suggest that no retaliation occur. For if it does, we will immediately file a federal civil rights action ....” (Stern Dec. Ex. V.) Thereafter, Plaintiff refused to answer further questions from Dr. Franks–Randall or counsel for the District in connection with the affair or Dr. Calvi's allegations. (Defs. 56.1 Stmt. ¶ 173.)

Dr. Franks–Randall brought Dr. Calvi's allegations to the Board, and recommended that the Board authorize an independent investigation into the allegations. ( Id. ¶¶ 178–80.) The Board authorized the investigation, and, in September 2007, retained the law firm of Jackson Lewis LLP to conduct the investigation. ( Id. ¶¶ 180, 182.) Michelle Phillips, Esq., of that firm, performed the investigation, during the course of which she interviewed nine witnesses, including Dr. Calvi, and reviewed documents and personnel files. ( Id. ¶¶ 184–85.) Plaintiff refused to participate in the investigation. ( Id. ¶¶ 202–05.)

Ms. Phillips presented the results of the investigation to the Board in October 2007. Based on the information provided by Dr. Calvi and others, Ms. Phillips determined that Plaintiff had engaged in certain improper conduct and recommended that the District proceed with dismissal charges pursuant to Section 3020–a.³ ( Id. ¶¶ 214–29.)

On February 6, 2008, the Board found probable cause to file disciplinary charges against Plaintiff for (1) misconduct, (2) conduct unbecoming an administrator and (3) insubordination. ( Id. ¶¶ 231, 234.) The misconduct charge was supported by fifteen specifications of acts of misconduct; the conduct unbecoming charge was supported by five specifications (all of which were also included as specifications under the misconduct charge); and the insubordination charge was supported by three specifications (all of which were also included as specifications under the misconduct charge). (Stern Dec. Ex. Z, Disciplinary...