Opinion
94 Civ. 0253 (RWS)
June 19, 2003
DIANE SANK, Englewood Cliffs, N.J., Pro Se, Plaintiff.
STEVEN L. BANKS, Assistant Attorney General, ELIOT SPITZER, Attorney General of the State of New York, New York, NY., Attorney for Defendants.
OPINION
Plaintiff pro se Diane Sank ("Sank") has moved (1) pursuant to Rule 52(b) of the Federal Rules of Civil Procedure to amend the findings of fact and conclusions of law on October 7, 2002 after the close of a bench trial denying the relief sought by her on her complaint alleging a discrimination claim and pre-November 21, 1991 retaliation claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), codified at 42 U.S.C. § 2000e et seq., and (2) pursuant to Local Rule 6.3 of the Southern District of New York ("Local Rule 6.3") for this Court to reconsider its opinion dated April 4, 2003 granting defendant City University of New York ("CUNY") summary judgment on Sank's remaining retaliation claims, which arose after November 21, 1991.
For the following reasons, those motions are denied.
Prior Proceedings
The parties and proceedings have been described in greater detail in Sank v. City University of New York, 219 F. Supp.2d 497 (S.D.N.Y. 2002), familiarity with which is presumed.
Sank commenced this action almost a decade ago, on January 18, 1994, alleging, inter alia, that the president of the City College of New York ("CCNY"), Bernard Harleston ("Harleston"), had removed her as chairperson of the CCNY Anthropology Department (the "Department") in 1988 because of her gender, race, religion and age, and subsequently retaliated against her after she filed a charge of discrimination with the New York City Commission on Human Rights ("NYCCHR").
Following more than eight years of litigation and the dismissal of certain of Sank's claims, a six-day bench trial was held from September 30, 2002 to October 7, 2002, to resolve Sank's Title VII claims. The claims at issue at the bench trial were those remaining claims that were alleged to have occurred prior to the effective date of the amended Civil Rights Act, November 21, 1991, and as to which Sank was not entitled to a jury trial. These claims were that CUNY: (1) discriminated against Sank on the basis of race and gender when Harleston removed her as Department chairperson; and (2) retaliated against Sank by removing her from her assigned laboratory space and by denying her request for a full-pay sabbatical leave. At the conclusion of testimony, it was held that Sank had failed to sustain her burden of establishing by a preponderance of the evidence a cause of action of discrimination in violation of Title VII. In addition, it was held that Sank had not established a prima facie case of retaliation in the taking of her laboratory space or denial of her leave application. Those claims were therefore dismissed.
Sank moved on March 25, 2003 to amend the Court's findings of fact and conclusions of law. CUNY responded on May 29, 2003, and the motion was considered fully submitted on June 13, 2003.
According to Local Rule 6.1, Sank was required to submit reply affidavits within five business days of service of the opposition papers. In a letter dated June 5, 2003, Sank noted that she had received CUNY's opposition on May 31, 2003. Thus, although it had been ordered that the motion should be submitted on June 4, 2003, Sank had five business days after May 31, or until June 6, 2003, to submit her reply papers. Sank sought and obtained an extension to June 13, 2003.
After the conclusion of the bench trial, Sank continued to have viable claims in the form of alleged acts of retaliation which had occurred after November 21, 1991, which had not been dealt with at the bench trial because such claims entitled Sank to a jury trial. Because Sank had not specified these claims until shortly prior to the bench trial and because CUNY therefore had not had an opportunity to seek summary judgment on such claims, CUNY was permitted to move against such claims. The defendants moved against the remaining claims on December 4, 2002, and the motion was considered fully submitted on March 19, 2003. By order dated April 4, 2003 (the "April 4 Order"), summary judgment was granted to CUNY, and Sank was denied permission to replead her complaint to include new retaliation claims.
On May 5, 2003, Sank moved for reconsideration of the April 4 Order. The motion was considered fully submitted on June 4, 2003, along with Sank's other motion to amend the findings of fact and conclusions of law.
Discussion
I. Standard of Review
Rule 6.3 is intended to "ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters." Carolco Pictures, Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y. 1988) (citation omitted). The parties may not present new facts or theories at this stage. Ralph Oldsmobile Inc. v. General Motors Corp., 2001 WL 55729, at *2 (S.D.N.Y. Jan. 23, 2001) (striking affidavit that was filed in support of motion to reconsider without court's permission); Primavera Familienstifung v. Askin, 137 F. Supp.2d 438, 442 (S.D.N.Y. 2001) (party may not "advance new facts, issues or arguments not previously presented to the Court") (quoting Morse/Diesel Inc. v. Fidelity Deposit Co. of Md., 768 F. Supp. 115, 116 (S.D.N.Y. 1991). "To succeed on a motion for reargument, the moving party must demonstrate that the court overlooked the controlling decisions or factual matters that were placed before the court in the underlying motion." Lopez v. Comm'r of Soc. Sec., 2002 U.S. Dist. LEXIS 5091, *1-*2 (S.D.N.Y. March 27, 2002) (quotations and citations omitted); see also Shrader v. CSX Transp., 70 F.3d 255, 257 (2d Cir. 1995) (motion for reargument "will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court").
Rule 6.3 must be narrowly construed and strictly applied so as to avoid duplicative rulings on previously considered issues, and may not be employed as a substitute for appealing a final judgment. Lopez, 2002 U.S. Dist. LEXIS 5091, at *3; Shamis v. Ambassador Factors, 187 F.R.D. 148, 151 (S.D.N.Y. 1999). The decision to grant or deny the motion rests in the discretion of the district court. ATT Corp. v. Community Network Servs. Inc., 2000 WL 1174992, at *1 (S.D.N.Y. Aug. 18, 2000).
The standard governing consideration of a motion for an amendment of findings of fact under Rule 52(b) is the same as for a motion for reconsideration under Local Civil Rule 6.3, as discussed above. 4200 Avenue K LLC v. Fishman, No. 00 Civ. 8814, 2001 U.S. Dist. LEXIS 5938, at *2 (S.D.N.Y. May 10, 2001) (applying Local Rule 6.3 standards). See also United States v. Local 1804-1, Int'l Longshoreman's Ass'n, 831 F. Supp. 167, 169 (S.D.N.Y. 1993) (Rule 52(b) can correct "manifest errors of law or fact," but cannot be used to "relitigate old issues, to advance new theories, or to secure a rehearing on the merits"); Bldg. Serv. 32B-J Pension Fund v. Vanderveer Estates Holding, LLC, No. 00 Civ. 364, 2001 U.S. Dist. LEXIS 2453, at *4 (S.D.N.Y. March 13, 2001) (denying motion under Local Rule 6.3 and Rule 52(b) where movant sought to introduce new evidence).
Rule 52(b) provides that, upon motion, a court "may amend its findings — or make additional findings — and may amend the judgment accordingly."
In addressing the present motion, the Court is also mindful that the plaintiff is proceeding pro se and that her submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers. . . .'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Nevertheless, pro se status "`does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotations omitted).
II. Motion to Amend Findings of Fact and Conclusions of Law
Sank has submitted a 187-page brief in support of her motion to amend the findings of fact and conclusions of law with regard to both her discrimination and retaliation claims. About 100 pages into her brief in support of her motion to amend, Sank expresses her frustration as a pro se plaintiff in trying to prove motive and pretext. Pls.' Mem. at 100. It should be noted, however, that such frustrations are not limited to pro se plaintiffs, as both concepts — and pretext in particular — are difficult to prove. E.g., Vandewalker v. Quandt's Food Serv. Distribs. Inc., 934 F. Supp. 42, 46 (N.D.N.Y. 1996) ("discriminatory intent is notoriously difficult to prove"). Sank simply did not show that the legitimate non-discriminatory reasons proffered by CUNY were mere pretext, and she now fails to cite to any evidence that was presented or controlling authorities that were overlooked that would result in a different outcome.
A. Discrimination Claims
Claims of discrimination under Title VII are analyzed under the three-part test announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). First, the plaintiff must establish a prima facie case of discrimination by showing that (1) she is a member of a protected class and (2) she suffered an adverse employment action (3) under circumstances that give rise to an inference of unlawful discrimination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). Second, if the plaintiff successfully establishes a prima facie case of discrimination, the defendant may rebut that showing by articulating a legitimate, non-discriminatory reason for the employment action. Burdine, 450 U.S. at 254; Weinstock, 224 F.3d at 42. Finally, if the defendant articulates a non-discriminatory reason, the plaintiff must come forward with evidence that the defendant's articulated non-discriminatory reason is a mere pretext for actual discrimination. Weinstock, 224 F.3d at 42 ("The plaintiff must `produce not simply some evidence but sufficient evidence to support a rational finding that the legitimate non-discriminatory reasons proffered by the [defendant] were false and that more likely than not [discrimination] was the real reason for the'" employment action (quotations and citations omitted; brackets in original)). Whether a judgment as a matter of law is appropriate depends upon a number of factors, including the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148-49 (2000).
Sank asserts that judgment should have been entered for her on the discrimination claim due to a number of factors. In particular, Sank argues that the Court erred in finding that (1) the Outside Review Committee ("ORC") Report (the "ORC Report") was a legitimate non-discriminatory reason, (2) that Harleston's recommendation that Jones be chairperson of the Department was ratified by the Department, and (3) that the ORC Report was not a mere pretext for discrimination.
In support of her argument, Sank outlines a number of points, which are not clearly delineated in her brief. At least twenty were able to be discerned upon review, which loosely fit into her overall objections to the Court's findings.
With regard to the ORC Report, Sank points to the following: (1) Harleston failed to act upon any other recommendations in the ORC Report; (2) the problems noted in the ORC Report existed prior to Sank's taking office; (3) Harleston permitted an insider to be elected after Jones resigned after one year; (4) Harleston's record of minority appointments, and that such appointments were not a fulfillment of affirmative action guidelines; (5) Harleston's membership in a black fraternity, Sigma Pi Phi; (6) the lack of interviews of the two candidates, who were white and female, other than Jones; (7) Sank's discharge and the replacement by Jones occurred simultaneously; (8) the By-Law by which Harleston had authority to discharge Sank was used for the first and apparently only time by Harleston in this instance; (9) Harleston ignored a Faculty Senate Resolution to return Sank to the chairpersonship; (10) Harleston allowed members of the Department to serve on the search committee for a new chair after Jones resigned despite admonitions to the contrary in the ORC Report; (11) Harleston used the term "chairman," rather than "chairperson," to refer to Sank; and (12) the issue of Jones' appointment was not put on the public calendar of the Board of Trustees meeting such that Sank could participate in discussions thereon.
Sank claims the purported Department ratification was suspect because (1) Harleston previously had threatened to disband the Department; (2) there was no discussion of the ORC Report; (3) Harleston merely asked if Jones were acceptable, rather than ask for a ratification; (4) Harleston supposedly reminded the single black professor in the Department of Harleston's support; and (5) Professor June Nash received a distinguished professorship two years after the vote in question. Sank also generally objects to the testimony of Harleston and Professor Owen Lynch ("Lynch"), a member of the ORC. Finally, Sank also challenges an evidentiary ruling excluding the testimony of members of the Board of Trustees. Each will be addressed in turn.
As a general comment, it should be noted that many times Sank does not support her claims with any citation to the record, either because she failed to fill in blanks of citations or because she failed to include any sort of citation whatsoever. The latter almost always constitute instances where Sank relies solely on speculation, opinion and argument. There is no doubt that Sank truly believes that she was discriminated against, and believes that the evidence should be construed in such a way as to support her beliefs. Unfortunately, Sank's belief alone is insufficient in light of the absence of evidence to support those beliefs and the evidence that contradicted it.
1. The ORC Report
The Court at trial already specifically considered four of the allegations above, and they were found insufficient to establish Sank's clam of race or gender discrimination under Title VII. These were: (1) Harleston's membership in Sigma Pi Phi, a black fraternity dedicated to promoting the interests of black males in education and business (Tr. at 821-22); (2) Harleston's use of the word "chairman" in the removal letter (Tr. at 504); (3) evidence of Harleston's efforts toward minority hiring (Tr. at 822); and (4) the election of Professor Besmer, a white male "insider" of the Department, as acting chairperson of the Department for the 1989-90 academic year by the Executive Committee after the departure of Del Jones.
Sank also misconstrues one finding by the Court related to Harleston's hiring practices. She claims that the Court found that Harleston would have inappropriately appointed black candidates who were not as qualified as non-black candidates. Instead, after hearing Harleston's testimony and observing his demeanor, it was found that Harleston recognized the importance of ethnic balance at a university in which four out of five students are minorities and that he engaged in an aggressive affirmative action program which was "entirely appropriate." There was no evidence presented that Harleston had ever appointed a less qualified black candidate, except that Sank has alleged that Jones, who was recommended by the ORC Report, was less qualified than two other professors who were recommended. In light of the fact that Jones was a nominee by the ORC, and in light of the fact that Sank has failed to discredit that report, Jones cannot be said to have been unqualified. Thus, the only finding with regard to Harleston's practices was a recognition that he aggressively attempted to hire qualified minority candidates.
In addition, Sank's accusation that the Outside Review Committee report (the "ORC Report") was without basis was also considered and rejected by the Court. Tr. at 824. This finding involves several of Sank's re-presented facts, including: (1) the problems noted in the ORC Report existed prior to Sank's taking office; and (2) the lack of interviews of the two candidates, who were white and female, other than Jones. As noted in the opinion, any factual inaccuracies or mistakes in the ORC Report are not the subject of this lawsuit. CUNY acted upon the ORC Report, and therefore, in the absence of any evidence that it did so with the knowledge that such report was a fabrication — and no such evidence has been presented — Sank's contentions are irrelevant.
Sank also contends that Harleston failed to implement certain of the recommendations of the ORC Report and, in fact, only implemented that portion concerning her replacement as Department chairperson. Harleston testified, however, that he was not directly responsible for the implementation of the other recommendations concerning, for instance, the Department's staffing, retention of the Department secretary, or its academic programs. Therefore, Harleston was not acting discriminatorily in not doing other officials' jobs.
Sank also alleges that the ORC Report was a pretext because Harleston purportedly did not follow it as he permitted members of the Department to join the search committee for a new chair despite admonitions to the contrary. First, Sank does not support her contention with any evidence that Harleston was in fact in charge of selecting the search committee. Second, even if such evidence were presented, it may be explained by Harleston's testimony of his belief that a measure of "calm" had returned to the Department after Jones' appointment.
With regard to the ORC Report, Sank also counter-factually alleges that Harleston exerted influence over the members of the ORC to have them recommend her removal. Harleston and one of two members of the ORC, Professor Owen Lynch, testified that no discussion took place between Harleston and the ORC about Sank or her removal.
Sank's present contention that her discharge and the replacement by Jones occurred simultaneously was rejected by the Court after trial, and Sank has presented no evidence or controlling authority that was not considered at the time. Indeed, she merely reargues the point.
The issue of the Faculty Senate Resolution in support of Sank and the fact that Jones' appointment was apparently not put on the public Board of Trustees' calendar are simply irrelevant to the issue of Sank's discharge.
Finally, while it is interesting that the By-Law used to remove Sank was first (and apparently last) used by CUNY to remove Sank from her position, the other evidence outweighs this fact, particularly given the existence of the ORC Report and CUNY's demonstrated reliance on it.
2. Department Ratification
As a general matter, the issue of the Department's "ratification" of the ORC Report and of Jones is less relevant, given the finding that Sank's discharge was not simultaneous with Jones' appointment. In addition, Sank fails to establish on the record any of the following allegations, except that she refers to the transcript with regard to Harleston's threat but fails to cite specific pages. Sank's arguments will nonetheless be addressed.
The fact that Harleston had threatened the Department with disbanding was well-known and failed to establish that the Department was not at least partially in accord with Harleston in light of the other evidence presented.
The allegation that there was no discussion of the ORC Report does not in itself establish that the vote was a sham and pretextual. No additional evidence with respect to the absence of discussion has been presented.
The allegation regarding Harleston's choice of diction is completely irrelevant. Harleston's purported asking whether Jones was acceptable was, in effect, a request for ratification of the Report.
The fourth argument, if proven, could provide evidence that Harleston was strong-arming the voting mechanisms of the Department. Such strong-arming — which could also be called by its nicer alias, "politicking" — nonetheless does not go to show that Sank was discharged because of Harleston's efforts to appoint Jones. As noted above, Sank has failed to present evidence or controlling authority that her discharge and the hiring of Jones were simultaneous acts.
Finally, no evidence was introduced to support the theory regarding Nash's vote and, in fact, Nash obtained the professorship two years after the vote in question. Such a time lag belies a connection between the two events. In the absence of any evidence that Nash's vote was related to Harleston's purported animus, this evidence also falls short.
3. Testimony of Harleston and Lynch
Sank points out several instances where Harleston and Lynch were unable to recall, or misremembered, small details. Moreover, Sank spends a great many pages recounting her cross-examination of Harleston, and arguing that Harleston's forthright denials of her allegations must have greater meaning. Having heard the testimony about which Sank objects, and in light of the fact that the witnesses were testifying about events that occurred from 1987 to 1991 — more than ten years prior to the time of their testimony — such inconsistencies are not the smoking guns Sank would have them be and are insufficient to justify granting Sank's motion.
4. Evidentiary Objection
Finally, Sank in a footnote contends that she should have been permitted to call as witnesses members of the Board of Trustees. She fails to present any evidence or controlling authority in support of this point, nor has she established the relevance of such testimony. She did not provide a deposition, affidavit, or even an informal document that would provide the nature of such testimony. Presumably, such testimony would go to her complaint, above, that the issue of Jones' appointment was not on the public calendar. As noted above, this issue is not relevant to Sank's discharge given the finding that Sank's discharge was not simultaneous with Jones' appointment.
In sum, there is no dispute that the Department had experienced a great deal of turmoil at the time of Sank's removal. Further, the ORC report suggested, in response to such turmoil, that Sank be removed as chairperson. The fact that Sank was replaced by a black man, who had been suggested as one of three candidates by the ORC, is insufficient to win the day without any other indicia of discrimination. Sank has failed to substantiate any of her beliefs about such discrimination with citations to evidence that was presented but was overlooked by the Court in making its findings of fact and conclusions of law. As a result, Sank's motion to amend the findings of facts and conclusions of law with regard to her discrimination claim is denied.
B. Retaliation Claims
Sank asks for amendment of the findings with respect to both retaliation claims: (1) the taking of her lab space, and (2) the denial of full-pay sabbatical leave.
A Title VII retaliation claim is analyzed under the rubric of McDonnell Douglas. Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995). First, in order to make out a prima facie case of retaliation, a plaintiff must establish that (1) she engaged in protected activity; (2) defendants were aware of the activity; (3) she was subjected to an adverse employment action; and (4) there is a causal connection between the protected activity and the adverse employment action. Gordon v. New York City Bd. of Ed., 232 F.3d 111, 116 (2d Cir. 2000); Quinn v. Green Tea Credit Corp., 159 F.3d 759, 768-69 (2d Cir. 1998). The Second Circuit has held that a close temporal relationship between the protected activity and an employer's adverse actions can be sufficient to establish causation. Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002) (citing Cifra v. General Elec. Co., 252 F.3d 205, 217 (2d Cir. 1998) ("The causal connection needed for proof of a retaliation claim can be establish indirectly by showing that the protected activity was closely followed in time by the adverse action.") (internal quotation marks omitted)). For mere temporal proximity to establish causality, the intervening period must be "very close." Clark Co. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 149 L.Ed.2d 509, 121 S.Ct. 1508 (2001).
If the plaintiff establishes a prima facie case of retaliation, the defendant may articulate a legitimate, non-retaliatory reason for its actions. Id. at 768. Finally, if the defendant does so, the plaintiff must prove that the proffered reason is merely a pretext for retaliation. Id. at 769.
1. Lab Space
Sank begins by referring to inadmissible hearsay evidence that Harleston was "enraged" by the June 27, 1989 amendment to her charge that added a claim of race discrimination. Such evidence is inadmissible and cannot further Sank's cause, particularly given the lack of evidence connecting Harleston and the official who made the decision that resulted in Sank's removal from her laboratory, Anthony Rodriguez Pacheko ("Pacheko"), a licensed architect who served as assistant vice-president for facilities and space planning at CUNY from January 1988 to May 1990.
Pacheko was known as "Anthony Rodriguez" during the relevant period.
Sank has challenged the truthfulness of Pacheko's testimony. As noted in the decision from the bench, however, Pacheko was an "entirely credible, forthright and direct" witness, based upon observation of his testimony. Pacheko, who was responsible for the master planning efforts at CCNY, testified that at the time he arranged for the taking of Sank's lab, he did not know Sank, nor was he aware of her claims of discrimination. Moreover, he testified that the change was made as part of a college-wide renovation, in which approximately one-fifth of the campus would be relocated over a four-year period. Finally, he credibly testified that he did not confer with Harleston regarding any decision he made with regard to allocation of space.
Sank claims that he is not credible because she has presented contradictory evidence, in which a member of the Computer Sciences Department does not remember asking for lab space to be connected by a door, but only remembers mentioning that such a situation could be useful. Having observed Pacheko's testimony, and given the passage of years, such evidence is insufficient to call his testimony into doubt.
Sank also notes that Pacheko had been forewarned that taking Sank's laboratory would cause problems. Such forewarning does not mean that he made the decision to injure Sank. Given the widespread nature of the reallocation of space that Pacheko oversaw, it is likely that problems would arise no matter what space was taken, and Pacheko would not have been fulfilling his obligations to CUNY had he taken any one person's potential unrest too seriously.
Further, Sank appears to assert that Pacheko's offer to Sank of an alternative lab space was some sort of buy-off. Pacheko's forthright testimony regarding this offer, however, establishes that he offered Sank the alternative lab space because she was upset, and Pacheko was trying to minimize any dislocation as best he could.
Sank also notes that Pacheko apparently failed to communicate with the Department about the decision to take her lab, while he also apparently communicated at great length with another department. Such claim is not adequately supported by the record and, in any case, is likely explained by Pacheko's belief that the lab was inactive. Sank also claims that Pacheko should not have thought that the lab was inactive, given the fact that he observed it during the summer session, but Pacheko's testimony that he truly believed the lab was inactive was persuasive.
All of these complaints also must be considered with the understanding that the events complained of took place approximately thirteen years prior to the testimony at trial.
Finally, Sank questions why Pacheko took vacation in July 1989, during which time the move occurred. Sank does not present any evidence that Pacheko normally did not take vacation during July (a time period when Sank admits many professors are not required to be at work) or that he purposefully took vacation to thwart her efforts to retain her laboratory space.
As a result, even if Sank proved her prima facie case (which she has not, given Pacheko's lack of knowledge of the discrimination charge), she certainly failed to prove that the proffered reason for the moving of her laboratory — the campus-wide renovations — was a pretext. Nor has she presented any evidence that was presented at trial that would result in a contrary determination. Her motion on this ground is therefore denied.
2. Leave Time
Sank argues that the timing of the denial of her leave application and the participation by phone of members of the Department's Executive Committee during the consideration thereof should have been sufficient to suggest a retaliatory pretext. It was held, however, that even considering the college's process in review of her sabbatical application, Sank had failed to establish a prima facie case of retaliation. Moreover, she has not presented any evidence on the record that was not considered that would result in a different finding. As a result, her motion on this ground is also denied.
III. Motion for Reconsideration of the April 4 Order
It should be noted at the outset that Sank has asserted that her motion for reconsideration of the April 4 Order is motivated by her concerns with the description of her lawsuit "as a vehicle to litigate grievances by a tenured professor at war with the administration of her college." April 4 Order, at 37. Sank is upset, in particular, at the use of the term, "at war," and asks that the phrase be stricken from the opinion.
According to Black's Law Dictionary, "war" is not only a "hostile conflict by means of armed forces, carried on between nations, states or rulers, or sometimes between parties within the same nation or state." Black's Law Dictionary 1576 (7th ed. 1999) Instead, alternative definitions include: "(2) [a] dispute or competition between adversaries," and "(3) a struggle to solve a pervasive problem." Id. at 1577. The second definition is the one at work here, and one specifically chosen with the knowledge of almost a decade of observing the workings of this case and the parties involved. Sank is unhappy with the administration over a number of issues that are not legally cognizable, but about which she has commenced many a successful complaint within the college's grievance system. The point of that sentence was that the proper place for Sank's complaints was in the grievance system, where she was successful, and not in the legal system where her complaints, albeit potentially valid, are not the sort that Title VII, as interpreted by the courts, was designed to prevent, correct or compensate for. The opinion did not in any manner state that Sank acted in an "unprofessional or ungentlewomanly manner," Pls.' Mem. at 3, and to construe otherwise gives a hint at the sort of misunderstandings that could have led Sank to vigorously pursue this lawsuit in the first place.
Sank also takes issue with several of the particular findings in the opinion.
A. Denial of Academic Advising Post
Sank contends that CUNY provided adjunct professors for professors who received release time for research at the same time that CUNY claimed that it could not provide an adjunct for professors who sought release time for Academic Advising. As a result, she claims that she has proven that CUNY's denial of her request for release time for time spent working in Academic Advising was a pretext. First, Sank is comparing apples and oranges. How CUNY dealt with release time for professors who sought to undertake research is not at issue, as Sank does not complain (at least in this particular allegation) that she did not receive release time for research. The only issue is how CUNY dealt with other professors involved in Academic Advising. It is undisputed that CUNY was suffering from monetary woes, and that one means of cutting corners was by reducing release time for all professors in Academic Advising. Sank was not the only professor affected by the change. Moreover, Sank presented no evidence, and continues to present no evidence, that the decision-makers who determined that Academic Advising would no longer receive the same amount of release time did so as a result of her protected actions, and that the reasons given by the administration for making the change were a pretext for retaliating against Sank.
Sank also raises the issue of Bessmer's truthfulness, stating that his purported loyalty to Harleston rendered his affidavit untrustworthy. Sank has presented no admissible evidence to support such a finding, and she did not present any evidence of any such questionable truthfulness at the time of the original motion either. It was already held, in any case, that CCNY's financial difficulties in 1992-93 caused a reduction in available release time for all faculty, and was a legitimate, non-discriminatory reason for Sank's course assignments in Spring 1993.
As a result, Sank has not met her burden pursuant to Local Rule 6.3, and her motion on this ground is denied.
B. Error in Spring 2001 Course Catalog
Similar to Sank's efforts to question the affidavit of Bessmer, she now challenges the truthfulness of the affidavit of Deputy Provost Barba by repeating the same facts that were put forward in her opposition papers and which were deemed insufficient to raise a material issue of fact.
Barba claims that he learned of the error in May and corrected it in May. A computer print-out reveals that the error was corrected on May 8, 2001. In response to this, Sank only provided her recollection that she contacted Barba later. Sank complained about the incident in May, however, and Barba noted that he learned of the error regarding Sank's classes, not that he necessarily learned of the error from her. Sank provided no other admissible evidence to challenge the notion that Barba acted in a manner inconsistent with a university official performing his job as he always does.
Sank now challenges the finding that the correction was made on May 8, 2001, by claiming that such changes can be post-dated on the SIMS computer system, and that therefore the exhibit dated May 8, 2001 was post-dated. She has also offered to provide an affidavit of another university official in support of her claims. Sank should have proffered such facts at the time of the original motion. New evidence may not be presented on a motion for reconsideration.
In short, Sank has merely re-presented evidence that was already rejected and reargued her opposition to the motion that was already denied. In addition, she has attempted to present new evidence. Such efforts are not appropriate on a Rule 6.3 motion and must result in the denial of Sank's motion.
C. Other Issues
Sank also asserts that the April 4 Order should have permitted her to amend her complaint to allege an additional twenty-three (or more) allegations of retaliation.
Rule 15(a) provides that the district court should freely grant leave to amend the pleadings. Fed.R.Civ.P. 15(a). The amendment should be permitted absent evidence of circumstances such as undue delay or bad faith, undue prejudice to the opposing party or futility. Foman v. Davis, 371 U.S. 178, 182 (1962); see also Jones v. New York State Div. of Military and Naval Affairs, 166 F.3d 45, 50 (2d Cir. 1999) (affirming district court's denial of leave to amend due to futility of amendment). It was held that the amendments should not be allowed due to evidence of undue delay and futility. April 4 Order, at 26.
Sank merely summarizes each of her allegations, without any argument as to evidence that was presented and not considered, or controlling authorities that were ignored. Given the lengthy nature of this list and the fact that Sank has failed to comply with Rule 6.3, the allegations will not be addressed separately. In any case, Sank has again failed to demonstrate that undue delay was not present when she specified for the first time twenty-three (or more) allegations of retaliation after a bench trial had been held on the pre-November 21, 1991 events that formed the nucleus of her complaint, almost ten years after commencing this lawsuit and after CUNY had already moved twice in summary judgment against claims. Moreover, she has failed to demonstrate that such amendments would not be futile.
Sank does point to one specific allegation of retaliation which she claims was "never resolved" in the opinion, as well as generally points to approximately 230 pages of her declaration that was submitted in opposition to the motion. The latter will not be specifically addressed as the approximately 230 pages of her declaration were examined by this Court in determining the earlier opinion, even though the strictures of Local Rule 56.1 did not mandate that such review be made as Sank had not included any of these additional incidents in her Local Rule 56.1 statement. Because the review of the 230 pages revealed that Sank had duplicated certain specific incidents that were discussed, and on many occasions failed to provide evidentiary support for allegations or alleged actions that clearly were not adverse actions, the incidents on the 230 pages that were not specifically discussed in Sank's papers were not specifically discussed in the April 4 Order and will not be discussed now. Moreover, as with all the other allegations, Sank has failed to overcome the hurdle of undue delay and futility.
Sank did not allege any of her alleged incidents in her Rule 56.1 statement. Instead, it was left to the Court to peruse an exhibit attached to her opposition memorandum in order to compile the list that was referred to in the opinion.
The specific claim involved an alleged incident where Barba "vocally admonished and embarrassed" Sank at a Faculty Senate Meeting by accusing her of changing the date of her final exam and by his failing to apologize afterward. Again, Sank fails to overcome the hurdle of undue delay and futility. The event in question occurred on May 17, 2001. Sank waited almost two years to specify that she considered it an act of retaliation as a result of Sank's protected actions. With regard to futility, it is not necessary to proceed beyond the first prong of the McDonnell Douglas rubric discussed above. Tomka, 66 F.3d at 1308. Sank has utterly failed to present evidence that her "embarrassment" in front of a select group of faculty and students amounted to an "adverse employment action." Gordon, 232 F.3d at 116; Quinn, 159 F.3d at 768-69. There is no indication that this public chastisement resulted in Sank's being disciplined, in Sank's receiving fewer students, in Sank's demotion, in Sank's loss of pay, or in Sank's loss of any job or position. Further, Sank has failed to present evidence that Barba's comments were causally related to Sank's protected activities.
This Court has said before that Professor Sank is a courageous, determined person. Such courage and determination, however, are likely not the best way to win friends and influence people. A lot of Sank's complaints stem from what potentially are reactions (but not adverse actions) to Sank's willingness to fight for what she believes in and to stand up for herself. Because Sank has failed to establish that arguably negative reactions to these attributes are in fact legally cognizable adverse employment actions, this Court has no choice but to dismiss this case and can only compliment Sank on her fortitude.
Conclusion
For the foregoing reasons, Sank's motion to amend the factual findings and conclusions of law is denied, and her motion for reconsideration of the April 4 Order is denied.
Submit judgment on notice.
It is so ordered.