Opinion
25086/02.
Decided on September 22, 2009.
The plaintiff is represented by Trevor A Reid, P.C. by Trevor A. Reid, Esq., of counsel, the defendant the Board of Education of the City of New York.
"John Doe" "Mary Smith" and "John Red" are represented by Michael A. Cardozo, Esq., Corporation Counsel of the City of New York by Danielle J. Barrett, Esq., of counsel.
Upon the foregoing papers in this action by plaintiff Kenneth Chase (plaintiff) seeking monetary damages for alleged discrimination, negligence, and defamation, defendant the Board of Education of the City of New York (defendant) moves for summary judgment dismissing plaintiff's complaint as against it.
In January 2000, plaintiff became a substitute attendance teacher for defendant and worked in School District 73, Brooklyn High Schools (the District). Plaintiff was first assigned to work at Erasmus Hall High School in Brooklyn, New York. On March 8, 2000, Maureen O'Mara (O'Mara), the District Supervisor of Attendance for the District, transferred plaintiff to George W. Wingate High School (Wingate) to serve as the attendance teacher there. Plaintiff was directly supervised by Howard Solovay (Solovay), the Wingate Assistant Principal of Administration, and Principal Maxwell Melamed (Principal Melamed).
By letter dated March 24, 2000, Robert M. Silverman (Silverman), who replaced O'Mara as the District Supervisor of Attendance for the District, praised plaintiff's work since 75.6% of 407 cases at Wingate had been closed as a result of his efforts and those of other members of the attendance team. Three months later, in June 2000, plaintiff had his first evaluation as an attendance teacher from Principal Melamed, and he received a satisfactory ("S") rating for the period of March 15, 2000 to June 28, 2000.
A fax dated October 20, 2000 shows that defendant appointed plaintiff as a regular attendance teacher in the fall semester of 2000. As a result of that appointment, plaintiff was subject to a three-year probationary period (Education Law §§ 3012 [a], 2573 [1] [a]).
In a memorandum sent to plaintiff, dated August 21, 2000, Silverman set forth plaintiff's major responsibilities for that academic year and the exceptions for plaintiff's performance. These responsibilities included: (1) a daily schedule of hours from 8:30 A.M. to 3:40 P.M., but, ideally, having all attendance teachers beginning their school day at 7:00 A.M. and concluding at 2:10 P.M., (2) making an average of six home visits per day for a total of 30 for each five-day week, (3) scheduling the home visits and sharing the results of the home visits with the Assistant Principal in charge of attendance at Wingate or the assistant principal's designee, (4) attending monthly meetings of all attendance teachers, and (5) timely and properly completing all documentation concerning the cases on which he was working or had closed.
Plaintiff's primary responsibility as an attendance teacher was to visit the homes of students who were chronically absent from school after efforts by telephone to reach their parents or guardians had failed to bring the students back to school. Wingate routinely generated a list of its chronically absent students by generating a document known as a Form 407 (407), which listed each student's absences, previous attendance record, and last known contact information. A copy of each 407 for Wingate was given to plaintiff, who was required to investigate the student's absences by visiting the address shown on the 407, and to report his findings to Wingate and the District Office. In the portion of the 407 labeled "Attendance Teacher's Investigation," plaintiff was required to provide a description of the residence he had visited and the steps that he had taken to locate each student and get him or her to return to school.
As an attendance teacher, plaintiff was expected to continue his or her investigation with respect to each 407 until the student either returned to school or his or her present whereabouts were determined and confirmed. Only at that point was the 407 to be closed. After closing each 407, plaintiff was required to make a copy of the annotated 407 and submit the photocopy to the District Office.
Since plaintiff, as an attendance teacher, made home visits, he was entitled to compensation by defendant for the travel expenses incurred by him in making those visits. Due to the fact that plaintiff used his own vehicle to make the home visits, he was entitled to travel reimbursement at the rate of $7.50 per day during the 2000-2001 school year. In order to receive this travel reimbursement, plaintiff was required to submit to the District Office a travel reimbursement sheet (TRS), a photocopy of the annotated 407, and any other supporting documentation, including the Attendance Teacher's Daily Report, also referred to as a Form 411 (411), for each home visit for which he sought reimbursement.
Plaintiff, as an attendance teacher, was also required to submit an Attendance Teacher Monthly Certification Form (Certification Form) each month. On that form, he was required to certify: (1) the number of home visits completed for the month, (2) that he had attached an annotated 407 for each home visit, and (3) that he had submitted all required paperwork for the month, including the TRSs and 411s, with attached copies of the 407s that he had closed for the month. A footnote on the Certification Form warned that a "satisfactory evaluation will not be possible unless an average of six (6) Home Visits per day are completed for each school day of the month." If plaintiff had difficulty completing any of the required paperwork, he was supposed to seek assistance from Silverman's secretary, Roslyn Lindor (Lindor), who was also responsible for accepting his paperwork, including all travel reimbursement requests.
On April 2, 2001, Silverman gave plaintiff a split assignment, which commenced on April 16, 2001. The split assignment required that plaintiff work at Thomas Jefferson High School on Mondays, Tuesdays, and alternate Wednesdays and at Wingate on Thursdays, Fridays, and alternate Wednesdays. Plaintiff returned to Wingate to resume his duties full time effective May 2, 2001.
According to Silverman, in or about May 2001, Lindor brought to his attention that plaintiff had submitted TRSs to the District for March 2001, along with 407s which did not indicate a description of the residences that he had visited or an explanation of his investigation. Silverman then reviewed plaintiff's work and all the documents that plaintiff had submitted to the District for February, March, and April 2001, and determined that plaintiff was seeking reimbursement for home visits that were not supported by an annotated 407, as required.
In a letter to the District Deputy Superintendent Patricia Kobetts (Kobetts) dated May 10, 2001, Silverman explained that he had denied plaintiff's request for travel reimbursement of $142.50 for March 2001 after he had reviewed plaintiff's documentation for that month, and found that plaintiff was seeking "reimbursement for transportation expenses without having made the home visits listed." Silverman, in that letter, further reported that he had also reviewed plaintiff's documentation for February 2001 and found that plaintiff had also sought and already received travel reimbursement of $105 without having made the home visits listed. Silverman, in that letter, also stated that a review of plaintiff's documentation for April 2001 was only "minimally satisfactory." Silverman, in that letter, then summarized that plaintiff had claimed travel reimbursement for 79 home visits in February 2001, but had made only 8 home visits; that plaintiff had claimed travel reimbursement for 112 home visits in March 2001, but had made only 3 home visits; and that plaintiff had claimed travel reimbursement for 37 home visits for April 2001, but had made only 26 home visits. Silverman also noted, in this letter, that preliminary work submitted by plaintiff for May 2001 "clearly indicate[d] that [plaintiff] [wa]s well aware of the proper way to conduct home visit investigations."
It is undisputed that plaintiff's May 2001 407s were properly annotated. Specifically, these 407s described the residences plaintiff had visited and an explanation of his investigations. Significantly, earlier 407s submitted by plaintiff in October, November, and December 2000, and January 2001, were also properly annotated by plaintiff. Silverman, in his May 10, 2001 letter, thus, concluded, that plaintiff was seeking reimbursement for home visits that he had not made for the period February 2001 through April 2001.
On May 25, 2001, plaintiff had a disciplinary hearing regarding allegations of "improprieties and theft of services." Plaintiff, along with his union representative Frank Volicipella, the Attendance Teacher Chapter Leader Steve Grossman, Kobetts, and Silverman were present at the disciplinary hearing. Plaintiff was told at this hearing that Silverman did not believe that he had made the home visits in question. According to Kobetts, at the hearing, plaintiff did not deny that the documentation he submitted was inadequate, but, instead, he explained that although his paperwork could be better, he did not intentionally submit misinformation. As stated by Kobetts, plaintiff had indicated at the hearing that he was fairly new to his position, and that there had been increased demands placed on attendance teachers. Plaintiff denies that he made these excuses at the hearing. Plaintiff, however, apparently indicated at the hearing that he could provide additional documentation to prove that he made the home visits.
After the May 25, 2001 hearing, the District gave plaintiff the opportunity to submit proof that he made the home visits at issue for which he had sought reimbursement. The week following the hearing, plaintiff submitted copies of 29 407s. Kobetts, in a letter to plaintiff dated June 20, 2001, stated that a review of these 29 resubmitted 407s indicated that 14 of them contained no new information, seven of them were already confirmed home visits, and only eight of them contained additional information which indicated that possible home visits were made.
Kobetts, in that June 20, 2001 letter, stated that plaintiff's "paperwork, home visits and attendance investigations [we]re lacking and unsatisfactory," and that he was "not in compliance with district attendance directives and the training [he] received regarding [his] responsibilities." Kobetts additionally stated, in that letter, that since plaintiff had been reimbursed for February 2001 "despite making a minimal number of home visits to compensate," he would not be reimbursed for March and April 2001 "which also indicate[d] requests for reimbursement for non-documented home visits." Kobetts determined that "[b]ased on [her] investigation, [plaintiff] did submit inaccurate records requesting reimbursement, [plaintiff] did not keep accurate records of attendance investigations, and [plaintiff] failed to make the required number of investigation visits." Kobetts concluded that plaintiff's "performance as an attendance teacher [wa]s unsatisfactory." A copy of this letter was placed in plaintiff's file.
At the end of the 2000-2001 school year, plaintiff's performance was evaluated by Wingate's principal, Malaika Bermiss (Principal Bermiss) (who had replaced Principal Melamed as principal in 2001). Plaintiff was initially given an overall "S" (satisfactory) rating. Plaintiff asserts that he was given this "S" rating on June 27, 2001 and that he signed it on that date. However, a handwritten note dated June 21, 2001 (a day after Kobett's June 20, 2001 letter) on that "S" rating sheet stated that "[Principal] Bermiss advised [that] this rating sheet is to be revised." On June 22, 2001, Principal Bermiss gave plaintiff a "U" (unsatisfactory) rating. Plaintiff did not sign this "U" rating.
According to defendant, plaintiff, by letter dated June 27, 2001, appealed his "U" rating. Plaintiff denies that he appealed the "U" rating and states that the signature on this June 27, 2001 letter was not his. By letter dated August 31, 2001, the District Superintendent of Brooklyn High Schools, Charles Majors (Majors), informed plaintiff that he would review and consider by September 30, 2001 whether his services as a probationary teacher would be discontinued as of August 31, 2001 based on his "U" "rating and any supporting documentation that accompanied the rating. Majors, in that letter, stated that plaintiff could submit a written response to contest the reasons for his termination no later than seven days prior to the date of his consideration and final determination of his discontinuance. Plaintiff asserts that he received Major's August 30, 2001 letter on September 5, 2001, when he returned to Wingate for the fall semester. Plaintiff did not submit any written response to Majors.
Plaintiff asserts that no documentation accompanied the "U" rating.
By Memorandum dated September 21, 2001, plaintiff was reassigned to the Brooklyn High Schools District Office for administrative duties under the supervision of Denise J. Hallett. By letter dated October 3, 2001, Majors informed plaintiff that he had reaffirmed his discontinuance of probationary service effective as of the close of business on August 30, 2001. On November 30, 2001, plaintiff filed a notice of claim against defendant, claiming fraud, destruction of his personal property by individuals employed by defendant, age discrimination, racial discrimination, illegal and wrongful discharge from his employment, that he was accused of submitting false and fraudulent transportation reimbursement documents and theft of services, and a violation of his Civil Rights.
Plaintiff appealed his termination and was granted an appeal hearing before the Chancellor's Committee on June 21, 2002. Plaintiff attended the hearing and was represented by his union advisor, Michael Grossman. At the June 21, 2002 hearing, plaintiff, through his union advisor, proffered documentary evidence and oral testimony and cross-examined Silverman. Based on its review of all of the evidence presented by the parties at the June 21, 2002 hearing, the Chancellor's Committee, in its Chancellor's Committee Report dated June 21, 2002, found that plaintiff had failed to provide written descriptions of buildings he had visited which was required to be done to prove visitation; that none of the 407s that plaintiff had submitted could be matched to a TRS submitted by plaintiff; that plaintiff "did not follow the guidelines of his job"; that while defendant alleged that plaintiff had committed fraud, fraud was never proven; and that plaintiff "deserved to be discontinued based on [his] job performance alone" (as opposed to fraud) because "the omission of building descriptions, as well as the submission of many completely blank forms, demonstrate[d] a clear failure [by plaintiff] to perform his duties satisfactorily." Based on [plaintiff's] failure to perform his duties," the Chancellor's Committee "unanimously concur[red] with [Major's] recommendation to discontinue [plaintiff's] probationary service."
Plaintiff asserts that he was not given a copy of this "U" rating until he saw it for the first time at the Chancellor's hearing.
On June 25, 2002, plaintiff commenced the instant action, claiming defamation, illegal and wrongful discharge from employment, racial discrimination, and violation of his Civil Rights. Plaintiff's complaint seeks $8 million in damages.
By letter dated September 20, 2002, Majors informed plaintiff that after receiving the Chancellor's Committee's Report, he was reaffirming the discontinuance of plaintiff's probationary service, effective at the close of business on September 20, 2002. In response to this final administrative determination, plaintiff never brought a proceeding pursuant to CPLR article 78 to challenge his "U" rating or his discontinuance as an attendance teacher.
Following plaintiff's service of his complaint dated June 24, 2002 in this action, defendant filed its answer dated August 18, 2003. Plaintiff's note of issue was filed on January 29, 2009, and discovery has been completed.
On a motion for summary judgment, a defendant must show either that the plaintiff failed to establish each element of his or her discrimination claim or that the plaintiff has failed to raise a material issue of fact as to whether the defendant's proffered legitimate nondiscriminatory reason for the challenged action was a pretext for unlawful discrimination ( see Forrest v Jewish Guild for the Blind , 3 NY3d 295 , 305; Bailey v New York Westchester Sq. Med. Ctr ., 38 AD3d 119 , 123). In an employment discrimination claim brought pursuant to the State Human Rights Law (Executive Law § 296 [a]), the standard of recovery is the same as the federal standard under Title VII of the Civil Rights Act of 1964, 42 USC § 2000e et seq. and is subject to the burden-shifting analysis established by the United States Supreme Court in McDonnell Douglas Corp. v Green ( 411 US 792, 802-803) ( see Forrest, 3 NY3d at 305; Ioele v Alden Press, 145 AD2d 29, 35).
Plaintiff has the initial burden of establishing a prima facie case of age and race discrimination by showing that: (1) he is a member of a protected class, (2) he was qualified to hold his position, (3) he was terminated from employment or he suffered another adverse employment action, and (4) circumstances exist suggesting that the discharge or other adverse employment action was taken because of his protected status ( see Forrest, 3 NY3d at 305; Ferrante v American Lung Assn., 90 NY2d 623, 629; Bailey, 38 AD3d at 122-123). If plaintiff meets this burden, defendant must proffer a legitimate, nondiscriminatory reason for the challenged employment decision ( see McDonnell Douglas Corp., 411 US at 802; Forrest, 3 NY3d at 34; Ferrante, 90 NY2d at 629).
Even under the more expansive scope of the City Human Rights Law (Administrative Code of City of New York § 8-107 [1][a]), a plaintiff must still make a prima facie case of race and age discrimination in order to survive a motion for summary judgment ( see McDonnell Douglas Corp., 411 US at 802; Forrest, 3 NY3d at 305).
If defendant satisfies this burden, plaintiff may still prevail by showing facts from which a fact-finder may infer that defendant's proffered legitimate non-discriminatory reason is false and a pretext for discrimination, which was the real reason for the challenged employment decision ( see Ferrante, 90 NY2d at 629-630). In order to show pretext, plaintiff must demonstrate both that defendant's proffered reason is false and that the real reason for defendant's actions was unlawful discrimination ( see St. Mary's Honor Ctr. v Hicks, 509 US 502, 515; Mete v New York State Off. of Mental Retardation Dev. Disabiliti es, 21 AD3d 288 , 290; Bailey, 38 AD3d at 123). While the burden of production shifts, the ultimate burden of persuasion remains at all times with plaintiff to prove unlawful discrimination ( see Texas Dept. of Community Affairs v Burdine, 450 US 248, 253; James v New York Racing Assn., 233 F3d 149, 154 [2d Cir 2000]; Bailey, 38 AD3d at 123). Conclusory allegations that are unsupported by evidence are insufficient to show pretext ( see Bickerstaff v Vassar Coll., 196 F3d 435, 452 [2d Cir 1999], cert denied 530 US 1242).
In order to survive a motion for summary judgment, the party opposing the motion must present "evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he [or she] rests his [or her] claim" ( Zuckerman v City of New York, 49 NY2d 557, 562). "Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to meet this standard ( id.). Thus, in order to satisfy his burden in this case and resist defendant's instant motion, plaintiff must raise a genuine material triable issue of fact from which a fact-finder could determine that his termination was because of race or age discrimination ( see Mete, 21 AD3d at 290; Ioele, 145 AD2d at 34).
In attempting to assert a discrimination claim, plaintiff alleges that he belongs to a protected class because he is a black male and, in 2001, he was 54 years of age. Plaintiff also alleges that he was qualified to hold his position as an attendance teacher, and that he has suffered an adverse employment act on by his termination as a probationary attendance teacher. Defendant does not dispute that plaintiff belongs to a protected class, that his termination was an adverse employment action, and that plaintiff was qualified for his psoition. Defendant, however, asserts that plaintiff has failed to raise a triable issue of fact as to whether his age or race was a determining factor in his termination.
Plaintiff claims that he was terminated based on unlawful discrimination because Silverman allegedly made statements to him. Specifically, plaintiff's complaint alleges that at a meeting with Silverman, Silverman told him "you do not have tenure," "I will get the Superintendent to help me kick your butt," and "you are too old to be an attendance teacher." Only the third of these statements is related to age. In this regard, plaintiff testified, at his deposition, that Silverman told him at that meeting that he was "too old to do his job" (Plaintiff's Dep. Transcript at 159). This sole age-based remark, though, is merely an isolated stray remark and, without more, cannot constitute evidence of discrimination ( see Danzer v Norden Sys., Inc., 151 F3d 50, 56 [2d Cir 1998]; Mete, 21 AD3d at 294; Moon v Clear Channel Communications, 307 AD2d 628, 632; Weiner v Cataldo, Waters Griffith Architects, P.C., 200 AD2d 942, 943). There is no direct evidence or statistical evidence of discriminatory conduct by defendant based on age ( see Mete, 21 AD3d at 293).
Plaintiff's complaint also conclusorily alleges that he was discharged from his employment based on racial animus, but plaintiff's complaint does not state any specific facts connecting his discharge to any racial animus. With respect to his claim of racial discrimination, plaintiff solely relies on his deposition testimony that Silverman, at a meeting with him, called him a "Black Bourgeoisie" (Plaintiff's Dep. Transcript at 152).Plaintiff, in opposition to defendant's motion, contends that the fact that Silverman called him a "Black Bourgeoisie" is enough to support an inference that his termination was due to racism.
Plaintiff, in his own affidavit, submitted in response to defendant's motion, does not mention the "Black Bourgeoisie" comment. Plaintiff's attorney, in his affirmation, however, speculates that since Silverman did not refer to plaintiff's white counterparts as "White Bourgeoisie," the reference to plaintiff must have been racially motivated. Such unsubstantiated speculation by plaintiff's attorney, however, is without probative value ( see Alvarez v Prospect Hosp., 68 NY2d 320, 327 [1986]; Zuckerman, 49 NY2d at 563; Adam v Cutner Rathkopf, 238 AD2d 234, 239). Significantly, Silverman was not questioned at his deposition as to whether he had used the term "Bourgeoisie" nor was he asked anything about what such a term meant. Thus, such a stray remark, without more, is insufficient to support an inference of discrimination ( see Danzer, 151 F3d at 156; Mete, 21 AD3d at 294; Moon, 307 AD2d at 632; Weiner, 200 AD2d at 943).
In any event, plaintiff has failed to proffer any evidence to show a causal connection between the "Black Bourgeoisie" or age comment and his termination since these comments were made by Silverman, as opposed to a decision-maker responsible for his termination ( see Mete, 21 AD3d at 293). That is, the decision-makers in this case were Principal Bermiss, who gave plaintiff the "U" rating for the 2000-2001 school year, and Majors, the Superintendent who made the decision to terminate plaintiff's services. Plaintiff does not allege that either Principal Bermiss or Majors ever made any racial or age-related discriminatory remarks. Indeed, plaintiff, when asked at his deposition whether he believed anyone other than Silverman discriminated against him, he responded that he "can't recall right now" (Plaintiff's Dep. Transcript at 156).
Plaintiff argues, however, that Majors merely "rubber-stamped" Silverman's "pre-ordained decision" to discontinue him as an attendance teacher. Plaintiff claims that Majors never discussed the charges with Silverman or Kobetts, but merely relied on Silverman's recommendation to discharge him. Such argument, however, is not supported by the factual record, which shows that plaintiff had an ample opportunity, including at the Chancellor's Committee hearing, to provide an explanation as to why his services should not be terminated. There is also no evidence from which a fact-finder could infer that Majors should have been or was aware of any discriminatory motive on the part of Silverman.
Plaintiff also claims that defendant had an unwritten policy or practice of discriminating against older teachers, particularly if they were black (Plaintiff's Dep. Transcript at 156-157). In attempting to show a policy of discrimination by defendant, plaintiff's attorney states that plaintiff "was replaced by a younger woman in the position [from which plaintiff] was discharged" and "ultimately a white person at Wingate." This statement by plaintiff's attorney, however, directly contradicts plaintiff's own prior sworn deposition testimony, wherein plaintiff testified that the teacher who took his position after he was removed from the school was black (Plaintiff's Dep. Transcript at 76, 155). Thus, plaintiff's attorney's statement that directly contradicts plaintiff's own prior sworn deposition testimony creates only a feigned issue of fact with respect to racial discrimination, which is insufficient to defeat defendant's motion for summary judgment ( see Karwowski v New York City Tr. Auth ., 44 AD3d 826 , 827; Telfeyan v City of New York , 40 AD3d 372 , 373; Hernandez-Vega v Zwanger-Pesiri Radiology Group , 39 AD3d 710 , 711; Amaya v Denihan Ownership Co. , LLC , 30 AD3d 327, 327-328; Harty v Lenci, 294 AD3d 296, 298).
With respect to age discrimination, plaintiff, at his deposition, admitted that he did not know the age of the teacher who replaced him, but testified that she was younger than him and "could be in her 30's" (Plaintiff's Dep. Transcript at 76). Plaintiff, however, admitted that Solovay and Principal Melamed were in their 50's or 60's (Plaintiff's Dep. Transcript at 77-78) and has submitted no evidence of an alleged general age animus ( see Mete, 21 AD3d at 293).
Plaintiff has completely failed to provide any circumstantial or other evidence of a disparate treatment of older or black teachers by defendant, which could indicate that there was a policy or practice by defendant of unlawful age or race discrimination ( see Bickerstaff, 196 F3d at 452; Mete, 21 AD3d at 293). Rather, plaintiff's claim of age and race discrimination is based solely upon sheer speculation, conjecture, and surmise. Thus, plaintiff has failed to satisfy his burden of showing that circumstances existed which suggested that he was terminated because of his race or age ( see Ferrante, 90 NY2d at 629).
In any event, defendant has proffered a legitimate nondiscriminatory reason for plaintiff's termination ( see McPherson v New York City Dept. of Educ., 457 F3d 211, 216 [2d Cir 2006]). Specifically, defendant asserts that plaintiff was discharged based upon the "U" rating given to him by Principal Bermiss following Kobett's June 20, 2001 finding that plaintiff's performance as an attendance teacher was "unsatisfactory." The record further indicates that although plaintiff was afforded a hearing on May 25, 2001 and an appeal hearing before the Chancellor's Committee on June 21, 2002, he was unable to document the home visits for which he had sought payment.
Plaintiff contends, however, that the circumstances surrounding the revision of his 2000-2001 performance evaluation from an "S" to a "U" rating supports an inference of pretext for race and age discrimination. Plaintiff claims that it is more likely than not that the reason for the rating revision was discriminatory animus rather than his failure to perform his job satisfactorily. There is no evidence in the record, however, to demonstrate that the revision of plaintiff's rating from "S" to "U" at the end of the 2000-2001 school year was based on discrimination. As previously discussed, the decision to revise plaintiff's rating was made by the rating officer, Principal Bermiss, not Silverman. Plaintiff has not-shown any causal connection between his age and race and the rating revision ( see Forrest, 3 NY3d at 308; Ferrante, 90 NY2d at 629).
Plaintiff asserts, however, that Solovay illegally changed his evaluation from an "S" to a "U" rating. Plaintiff claims that the revised "U" rating was fraudulent since he was given the "S" rating on June 27, 2001 and he signed for it on that date, and that the "U" rating was also stamped with a June 27, 2001 date and was never signed by him. Plaintiff also speculates that since Principal Bermiss was not listed as one who received a copy of the June 20, 2001 letter, the "U" rating could not have been based on that June 20, 2001 finding by Kobetts that his performance was unsatisfactory.
As noted above, a copy of this June 20, 2001 letter was placed in plaintiff's file.
While it does appear that both the "S" rating and the "U" rating, which are signed by Principal Bermiss, are stamped with a June 27, 2001 date, Solovay has submitted his sworn affidavit, in which he attests that on June 21, 2001, Principal Bermiss requested that plaintiff's rating be changed to a "U" rating. Solovay further attests that on June 22, 2001, pursuant to Principal Bermiss' directive, he provided the payroll secretary at Wingate (who was responsible for communicating each teacher's rating to Majors) with plaintiff's revised performance evaluation, which indicated that as of June 22, 2001, plaintiff had received a "U" rating for the school year ending June 27, 2001. Plaintiff has not proffered any evidence that Solovay acted out of racial or ageist animus.
Thus, plaintiff cannot demonstrate a causal nexus between the statements allegedly made by Silverman and the adverse employment action ( see Forrest, 3 NY3d at 308; Bailey, 38 AD3d at 124; Ioele, 145 AD2d at 36). Consequently, inasmuch as plaintiff has only presented conjecture and no evidentiary proof, which is insufficient to raise a genuine material issue of fact, his discrimination claims cannot be sustained ( see CPLR 3212 [b]; Forrest, 3 NY3d at 308; Ioele, 145 AD2d at 34).
Plaintiff, in his opposition papers, however, now attempts to raise the additional claim that defendant deprived and violated his civil rights under the due process clauses of the United States Constitution and the New York State Constitution due to the manner in which defendant conducted the disciplinary hearing on May 25, 2001 and the Chancellor's Committee hearing on June 21, 2002 and its fact-finding investigation. Plaintiff asserts that this violation of his due process rights led to his discharge.
Plaintiff, in support of his claim that he was denied due process of law, asserts that the May 25, 2001 hearing was not recorded by a court reporter or a tape recorder, and he was denied the services of an attorney. Plaintiff further asserts that the May 25, 2001 decision was based on false or altered documents and missing documents. Specifically, plaintiff asserts that defendant produced photocopies of the 407s rather than the original 407s signed by him. Plaintiff contends that since he was not confronted with the originals of these documents, he was denied due process.
As discussed above, however, plaintiff following the May 25, 2001 hearing, was given the opportunity to submit proof that he had made the home visits.
As discussed above, photocopies of the 407s were submitted by plaintiff to the District Office.
Plaintiff similarly asserts that the evidence put forth by defendant at the Chancellor's Committee hearing was not trustworthy or reliable such as to warrant his discontinuance of his duties as a probationary teacher. Plaintiff complains that Silverman utilized only copies of the 407s. Plaintiff asserts that Silverman never looked at the original 407s or produced them at the hearing. Plaintiff further complains that Principal Bermiss was not called to give testimony concerning the contents of the original 407s.
Plaintiff additionally complains that Lindor was never called as a witness at either of the hearings to attest to the authenticity of his paperwork. Plaintiff asserts that since Lindor received and reviewed all the 407s, 411s, and TRSs submitted on the fifth day of the month, she, as the district secretary to Silverman, would have discovered the deficiency in his forms sooner and rejected them upon submission if they had really been deficient.
As discussed above, Silverman, in his affidavit, states that Lindor brought the deficiencies in plaintiff's paperwork to his attention.
Plaintiff's argument that he was denied due process of law, however, must be rejected. Plaintiff cannot show any violation or deprivation of a legitimate right occurred without due process of law since plaintiff could have challenged all of the above claimed deficiencies in his administrative hearings by bringing a CPLR article 78 proceeding ( see Matter of Persico v Board of Educ., City School Dist., City of NY, 250 AD2d 854, 855). Plaintiff, however, elected not to timely commence a CPLR article 78 proceeding to challenge defendant's determination. Plaintiff instead, brought this action seeking monetary damages for discrimination, defamation, and negligence. Thus, inasmuch as plaintiff had an adequate post-deprivation remedy in the form of a CPLR article 78 proceeding and elected not to avail himself of this remedy (and is now time-barred from doing so [ see CPLR 217]), plaintiff cannot now raise a claim in this action that his due process rights were violated based on defendant's determination and seek damages based thereon ( see Shakur v Selsky, 391 F3d 106, 111 [2d Cir 2004]; Henneberger v County of Nassau, 465 F Supp 2d 176, 194 [ED NY 2006]; Pinder v City of New York , 49 AD3d 280, 281; Fike v Town of Webster , 11 AD3d 888 , 889-890; Matter of Persico, 250 AD2d at 855).
With respect to plaintiff's defamation claim, it is well settled that in order to establish a legally cognizable defamation claim, plaintiff must show that defendant made a false statement and published it to a third party without privilege ( see Plataniotis v TWE Advance/Newhouse Partnership, 270 AD2d 627, 629). Plaintiff alleges, in his complaint, that defendant defamed him by "us[ing] false accusations to deny [him] employment with . . . [d]efendant and ruin [his] standing in the community and prevent his future employment by stating that [he] stole funds from [d]efendant."
Plaintiff claims that defendant has defamed his character and damaged his reputation by falsely accusing him of perpetrating a fraud on it. Specifically, plaintiff states that defendant falsely accused him of theft of services and of fraudulently submitting TRSs for home visits which he did not make.
It is well established that a qualified privilege extends to statements made in by one person to another upon a subject in which both have a common interest ( see Foster v Churchill, 87 NY2d 744, 751; Liberman v Gelstein, 80 NY2d 429, 437; Stukuls v State of New York, 42 NY2d 272, 278-279; Lerwick v Krna , 29 AD3d 1206, 1208; Aponte v Cosmopolitan Empl. Agency, 226 AD2d 299, 300; Hollander v Cayton, 145 AD2d 605, 606; Green v Kinsella, 36 AD2d 677, 677). Here, the alleged defamatory statements concerning fraud and theft of services were the very allegations advanced and examined during the course of defendant's internal review of plaintiff's documentation of his reimbursement requests. Thus, since defendant had a duty to investigate these allegations, the statements made during that investigation in discharge of that duty to other persons with a common corresponding interest or duty are protected by a qualified privilage ( see Foster, 87 NY2d at 751; Liberman, 80 NY2d at 437; Stukuls, 42 NY2d at 278-279; Lerwick, 29 AD3d at 1208; Hollander, 145 AD2d at 606; Green, 36 AD2d at 677).
In order to defeat this qualified privilege, plaintiff was required to show actual malice ( see Liberman, 80NY2d at 438). Actual malice "is defined as personal spite, ill will or culpable recklessness or negligence" ( Hollander, 145 AD2d at 606) or when statements are made "with a high degree of awareness of their probable falsity" ( Liberman, 80 NY2d at 438 [internal quotation marks and citation omitted]; see also Lerwick, 29 AD3d at 1209). Plaintiff, however, only conclusorily claims that Silverman and Kobetts acted with actual malice because the Chancellor's Committee found that there was no evidence of fraud put forth. Plaintiff's claims of malice is unsubstantiated by any evidentiary proof of personal spite, ill will, or culpable recklessness or negligence, and the evidentiary facts and documentary proof do not show that the charges were brought against him with a high degree of awareness of their probable falsity ( see Liberman, 80 NY2d at 438; Lerwick, 29 AD3d at 1209; Green, 36 AD2d at 677-678). Consequently, inasmuch as defendant's statements were protected by a qualified privilege and no actual malice has been shown, summary judgment dismissing plaintiff's defamation claim must be granted ( see CPLR3212 [b]).
Plaintiff also does not challenge defendant's motion insofar as it seeks dismissal of his negligence claim as barred by the exclusivity of the Workers' Compensation Law. Thus, dismissal of this claim is warranted ( see CPLR3212 [b]; Workers' Compensation Law § 29; Torres v Pisano, 116 F3d 625, 640 [2d Cir 1997], cert denied 522 US 997).
Accordingly, defendant's motion for summary judgment dismissing plaintiff's complaint as against it, is granted.
This constitutes the decision, order, and judgment of the court.