Serodio v. Rutgers, Civil Action No. 09–2221 (SRC).

• Court: United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
• Writing for the Court: CHESLER
• Citation: 27 F.Supp.3d 546
• Parties: Paulo SERODIO, Plaintiff, v. RUTGERS, the State University of New Jersey, et al., Defendants.
• Docket Number: Civil Action No. 09–2221 (SRC).
• Decision Date: 13 June 2014

27 F.Supp.3d 546

Paulo SERODIO, Plaintiff,
v.
RUTGERS, the State University of New Jersey, et al., Defendants.

Civil Action No. 09–2221 (SRC).

United States District Court, D. New Jersey.

Signed June 13, 2014

Motion granted.

[27 F.Supp.3d 548]

Alexandra Garcia, Garcia Hobbs Law, LLC, Newark, NJ, for Plaintiff.

William F. Maderer, Rina G. Tamburro, Saiber LLC, Florham Park, NJ, for Defendants.

OPINION
CHESLER, District Judge.

This matter comes before the Court upon the motion for summary judgment filed by Defendant Rutgers, The State University of New Jersey (f/k/a University of Medicine and Dentistry of New Jersey (“UMDNJ”)) ¹ and the various individual Defendants,² who are affiliated with UMDNJ. Plaintiff Paulo Serodio (“Plaintiff” or “Serodio”) has opposed the motion. The Court has considered the papers filed by the parties. It rules based on the written submissions and without oral argument, pursuant to Federal Rule of Civil Procedure 78. For the reasons expressed below, the motion for summary judgment will be granted in its entirety.

I. Background

This action arises out of Plaintiff's suspension from UMDNJ's medical school, in which he was enrolled as a student at all relevant times. Disciplinary proceedings were initiated against Serodio in January 2007. In April 2007, following a hearing in which he participated, Serodio was found to have violated the school's policies on

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proper use of its electronic information systems and its code of professional conduct. The disciplinary committee imposed a one-year suspension. Serodio appealed the decision, but it was affirmed in June 2007. After he was reinstated, Serodio experienced significant academic failures, resulting in his ultimate dismissal from the school in 2011.

Serodio filed this lawsuit in 2009 alleging that the disciplinary actions taken against him by UMDNJ and the other Defendants constituted retaliation for his exercise of First Amendment rights to free speech and discrimination on the basis of his race and national origin. Serodio is a white man who was born in Mozambique and therefore describes himself as a “white African American.” He claims that UMDNJ's allegedly wrongful conduct stems from comments he made during class discussions in which he identified himself as a white African American and the similarly-themed essay he published in the school newspaper, The Plexus, in December 2006. The record also contains evidence that, in January 2007, Serodio posted lecture summaries known as “scribe notes” on the school's intranet system, for the purpose of sharing the notes with classmates, and that the notes contained inflammatory comments as well as lewd and inappropriate material. The Court's October 1, 2013 Opinion granting Defendants' motion for partial summary judgment narrates in more detail the facts relevant to both the claims and defenses, and the Court incorporates that Opinion's factual background section by reference.

In the October 1, 2013 Opinion and Order, the Court held that as a matter of law, Plaintiff could not establish his claims insofar as the alleged retaliatory and discriminatory conduct consisted of his dismissal from the medical school in 2011. Defendants had moved for partial summary judgment, seeking an order limiting the claims in the case to any nominal damage Serodio may have sustained as a result of the one-year suspension imposed in 2007. The Court found that the evidence demonstrated that Plaintiff's inadequate academic performance resulted in his dismissal and therefore no reasonable juror could find a causal link between Serodio's allegations of wrongdoing by Defendants and the alleged harm inflicted by the dismissal. ( See d.e. 82 at 9–11.) Now, Defendants have moved for summary judgment on the entirety of the Amended Complaint, arguing that as to the pared-down action arising out of the allegedly retaliatory and discriminatory suspension, there is no genuine issue of fact a jury could resolve in Plaintiff's favor.

II. Legal Standard for Summary Judgment

Federal Rule of Civil Procedure 56(a) provides that a “court shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (construing the similarly worded Rule 56(c), predecessor to the current summary judgment standard set forth in Rule 56(a)). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant, and it is material if, under the substantive law, it would affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, a district court “must view the evidence ‘in the light most favorable to the opposing party.’ ” Tolan v. Cotton, ––– U.S. ––––, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (quoting

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Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). It may not make credibility determinations or engage in any weighing of the evidence. Anderson, 477 U.S. at 255, 106 S.Ct. 2505.

“When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must show that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party.” In re Bressman, 327 F.3d 229, 238 (3d Cir.2003) (quoting United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir.1991)). “[W]ith respect to an issue on which the nonmoving party bears the burden of proof ... the burden on the moving party may be discharged by ‘showing’ that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325, 106 S.Ct. 2548.

Once the moving party has satisfied its initial burden, the party opposing the motion must establish the existence of a genuine issue as to a material fact. Jersey Cent. Power & Light Co. v. Lacey Twp., 772 F.2d 1103, 1109 (3d Cir.1985). “A nonmoving party has created a genuine issue of material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial.” Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir.2001). However, the party opposing the motion for summary judgment cannot rest on mere allegations; instead, it must present actual evidence that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir.1990) (holding that “unsupported allegations in [a] memorandum and pleadings are insufficient to repel summary judgment.”).

III. Discussion

The multi-count Amended Complaint pleads for relief under a number of federal civil rights statutes and parallel state law claims.³ The claims can be grouped into three categories: the retaliation claims, the discrimination claims and the hostile work environment claims. Each category will be addressed in turn.

A. Retaliation Claims

In Count One of the Amended Complaint, Serodio seeks relief for Defendants' alleged violation of his First Amendment rights pursuant to 42 U.S.C. § 1983, which provides a private cause of action against a state actor for violation of rights created by federal statute or by the Constitution. 42 U.S.C. § 1983; Gonzaga University v. Doe, 536 U.S. 273, 289, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). Plaintiff claims that Defendants violated his civil rights by suspending him in retaliation for engaging in speech protected by the First Amendment. The Amended Complaint recites a number of instances preceding Serodio's suspension, in which Serodio expressed his views on race and national origin, including his in-class comments, his article in the student newspaper and an email he circulated to the student body in late December 2006. It does not specify which of Plaintiff's actions constitutes the allegedly protected

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conduct motivating adverse action against hi m. Perhaps due to this lack of precision, Defendants' argument in their moving brief focuses on Serodio's scribe notes. The opposition brief to the instant motion for summary judgment, however, helps to clarify the matter. In it, Plaintiff emphasizes that the “conduct at issue for which Dr. Serodio suffered irreparable harm and was ultimately suspended was his decision to write and publish an essay in the student newspaper, “The Plexus”, on his opinion as to his self-identification as a ‘White African American.’ ” (Opp'n Br. at 5.)

To establish a claim of First Amendment retaliation, a plaintiff must prove “(1) that the activity in question is protected by the First Amendment, and (2) that the protected activity was a substantial factor in the alleged retaliatory action.” Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir.2006). To demonstrate that protected speech was a substantial or motivating factor for an alleged retaliatory action, a plaintiff may rely on “a range of circumstantial evidence” including temporal proximity between the speech and adverse action, evidence of retaliatory animus in the intervening period, proof of ongoing antagonism and inconsistent explanations for the alleged retaliation. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280–81 (3d Cir.2000); Ivan v. County of Middlesex, 595 F.Supp.2d 425, 472 (D.N.J.2009).

Plaintiff concedes that an article published in a school-sponsored newspaper, such as Serodio's December 2006 essay in The Plexus, constitutes “speech occurring in a non-public forum [and thus] may be subject to reasonable restrictions.” Tinker v. Des Moines Independent Cmty. Sch. Dist., 393 U.S. 503, 508, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Even so, he argues that the record...