William B. Boise v. New York University

Full title: WILLIAM B. BOISE, Plaintiff, against NEW YORK UNIVERSITY, Defendant

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

Date published: Oct 21, 2003

00 Civ. 7844 (RWS) (S.D.N.Y. Oct. 21, 2003)

Opinion

00 Civ. 7844 (RWS)

October 21, 2003

S. ANDREW SCHAFFER, ESQ. ADA MELOY, ESQ. New York, NY, for Defendant

OPINION

ROBERT SWEET, Senior District Judge

The defendant New York University ("NYU") has moved for summary judgment, pursuant to Rule 56, Fed.R.Civ.P., to dismiss the amended complaint of plaintiff pro se William B. Boise ("Boise"). For the reasons set forth below, the complaint is dismissed.

Prior Proceedings

The complaint, filed on October 16, 2000, alleged that Boise was the victim of age discrimination, seeking $2 million in punitive damages. The complaint was dismissed for failure to name appropriate parties. On appeal the dismissal was affirmed in part and reversed to permit repleading and consideration of Swierkiewicz v. Sorema, N.A., 122 S.Ct. 992, with respect to the claim of unequal terms and conditions of employment, retaliation and hostile work environment.

Boise filed an amended complaint on April 22, 2003, and the instant motion was filed on June 24, 2003 and marked fully submitted on July 23, 2003. The Facts

The following facts are set forth in NYU's Local Civil Rule 56.1 Statement.

Boise is employed as a professor of public administration in the Robert F. Wagner Graduate School of Public Service at NYU, with tenure, and has been so employed at all relevant times. He was born August 22, 1928 and is currently 75 years old.

NYU first employed Boise as an assistant professor in 1967.

Jo Ivey Boufford, M.D. ("Boufford"), dean of the Wagner School from June 1, 1997 to October 31, 2002, recommended annual salary increases for Boise, and the salary increases were received each year that she was dean.

Boise met with Boufford on April 30, 1998 for an annual conversation and discussion regarding course assignments for 1998-99, and in May 1998, Boise was given a teaching courseload for the 1998-99 academic year. Boise agreed in writing to work with associate professor of public policy Dennis C. Smith ("Smith"), a tenured faculty member who had been on the Wagner School faculty for 25 years. Smith was director of the Wagner International Initiative at the time and Boise agreed to perform specified administrative tasks in consultation with Smith.

On June 22, 1998, Boufford assigned Boise to teach two courses in 1998-99 and instructed him to develop a syllabus for a proposed third course that he might also teach in the spring of 1999. During the 1998-99 academic year, Smith asked Boise to request catalogs from international studies programs at other universities and analyze the curriculum and faculty of those programs.

In the spring of 1999, Boise filed a grievance directly with the Wagner School's Faculty Grievance Committee, and on June 24, 1999, met with Boufford for the annual conversation which had been delayed due to his failure to monitor his e-mail. On June 30, 1999, in response to Boise's grievance, the Wagner School's Faculty Grievance Committee recommended that Boufford communicate with Boise to schedule a courseload acceptable to him. On July 1, 1999, Boufford and Associate Dean Lovitz met with Boise. Boise was scheduled to teach five courses for the 1999-2000 academic year.

On August 11, 1999, Boufford sent a memorandum to Boise that served as a decision on his grievance. She apologized for any misunderstanding as to his work with Smith and confirmed that Boise was scheduled to teach five courses for the 1999-2000 academic year.

In the 1999-2000 academic year, the Wagner School cancelled two courses that Boise had been assigned due to low enrollment.

During the fall 1999 semester, Boise taught Human Resources Management with enrollment of 33 students. Human Resources Management is a required course for students enrolled in certain Wagner degree specializations. Reports of student dissatisfaction with Boise's teaching in Human Resources Management were received in the Dean's office during 1999-2000.

On April 18, 2000, Boise filed his EEOC charge, but the charge was not forwarded to NYU by the EEOC until September 29, 2000.

Because of complaints that the Wagner School received about Boise's teaching of Human Resources Management during the fall 1999 semester and the fact it is a required course for some specializations, Boise was not thereafter selected to teach the course.

Although the full-time teaching load was set at five courses per year, during Boufford's deanship tenured professors at the Wagner School on average taught fewer than four courses per academic year. For the 2000-01 academic year, Boise was scheduled to teach four courses and he taught the four scheduled courses.

For the 2001-02 academic year, Boise was scheduled to teach four courses, and he taught the four scheduled courses.

The dean of a school has the authority to schedule and cancel classes. Boise was permitted to teach classes with enrollments as low as four or five students.

Boise has acknowledged that NYU has non-discriminatory business reasons for hiring faculty members who are younger than himself. NYU's Wagner School has denied tenure to younger professors who do not meet expectations to publish scholarly work. Without regard to age, Boise testified that Boufford did not treat anyone else in the same manner as she treated him.

During the deanship of Boufford, at least a dozen faculty serving and teaching in the Wagner School were age 70 or older, in addition to Boise. No other Wagner School faculty member has filed a grievance, EEOC charge, or lawsuit claiming that Boufford discriminated on the basis of age.

Boise did not publish any scholarly work during the time Boufford was in office, nor was he active as a practitioner or tied to any health, nonprofit or government institution. He further did not give a grade other than an "A" to any student for completed coursework while Boufford was in office. Boise never informed Boufford that he considered her actions discriminatory, and she never made derogatory comments about age to Boise or in his presence or verbally criticized Boise.

Boufford took no additional action with regard to Boise's assignments after Boise made allegations of age discrimination.

I. The ADEA Does Not Provide the Relief Sought by Boise

Boise at his deposition stated the only relief he sought was the recovery of punitive damages. (Boise Dept. pp. 47-50), and he has made no claim for lost wages or benefits.

The Age Discrimination in Employment Act of 1967, as codified 29 U.S.C. § 621-634, does not provide for punitive damages. Rather it permits remedies such as back pay, front pay, and reinstatements. Hatter v. Fulton, 1997 WL 411623 at *6 (S.D.N.Y. 1997), aff'd, 165 F.3d 14 (2d Cir. 1998) (summary judgment dismissing ADEA claim affirmed, citing C.I.R. v. Schleier, 515 U.S. 323 (1995), and Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146-48 (2d Cir. 1984)).

Because Boise's sole demand for damages is not cognizable under the ADEA, NYU is entitled to summary judgment as a matter of law. II. NYU Did Not Unlawfully Discriminate Against Boise

"The salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation."Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). "Much more recently, the Supreme Court reiterated that trial courts should not treat discrimination differently from other ultimate questions of fact."Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001)(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) (internal quotations omitted).

For a claim of discrimination, the plaintiff has the initial burden of proving a prima facie case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The plaintiff must prove that he is: (1) a member of a protected class, (2) who was qualified for his position, (3) who suffered an adverse employment action, (4) under circumstances giving rise to an inference of discrimination. Id. at 802. If the plaintiff establishes aprima facie case, the defendant may state a legitimate, non-discriminatory reason for its actions to rebut any inference of discrimination. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981); Bickerstaff v. Vassar Coll., 196 F.3d 435, 446 (2d Cir. 1999) ("The defendant's burden of production also is not a demanding one; she need only offer such an explanation for the employment decision.").

Once the defendant presents a non-discriminatory reason, the presumption of discrimination from the plaintiff's prima facie case drops out of the picture. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993).

For the case to continue, the plaintiff must then come forward with evidence that the defendant's proffered, non-discriminatory reason is a mere pretext for actual discrimination. 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].'" Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (citations omitted) (alterations in original). "It is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination." St. Mary's, 509 U.S. at 519.

In this case, Boise alleges two purportedly discriminatory acts which he terms "unequal terms and conditions of employment. " (Amd.Compl. p. 2): the dean's assigning him to work with Smith and the dean's refusal to assign him a schedule of five courses per academic year. Some of Boise's allegations are time-barred. For Boise's timely claims, he fails to present a prima facie case of discrimination, and he cannot sustain his ultimate burden of proof in light of NYU's legitimate, non-discriminatory reasons for its actions.

/h3/ A. Boise's Allegations of Discrimination Before June 23, 1999 are Untimely

"Discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 2072 (2002). A charge of age discrimination must be filed with the EEOC within 300 days of the alleged discriminatory conduct. 29 U.S.C. § 626(d)(2);Brodsky v. City Univ. of New York, 56 F.3d 8, 9 (2d Cir. 1995). The statute of limitations for an employment discrimination claim runs from the date that the employee is notified of an employment determination.Del. State Coll. v. Ricks, 449 U.S. 250, 258 (1980).

Boise filed his EEOC charge on April 18, 2000. Accordingly, in order to be timely, Boise's allegations of discrimination must have accrued on or after June 23, 1999. Boise's assignment to work with Smith, however, occurred in May 1998. Because the alleged discriminatory assignment accrued before June 23, 1999, it is time-barred and cannot be the basis for a claim of discrimination. B. Boise Has Not Met His Burden to Prove a Prima Facie Case of Discrimination

Boise's remaining claim is that NYU scheduled him to teach four classes per academic year, rather than the five classes he preferred. Boufford scheduled Boise to teach five courses for the 1999-2000 academic year, but every year thereafter to 2002, Boufford scheduled Boise to teach four courses. Accordingly, Boise's allegations must be considered with respect to the 2000-02 academic years. A course schedule with one less class than desired cannot be an adverse employment action. Moreover, Boise has presented no evidence that would raise an inference of discrimination on the basis of age.

"A plaintiff sustains an adverse employment action if he or she endures a `materially adverse change' in the terms and conditions of employment. To be `materially adverse' a change in working conditions must be `more disruptive than a mere inconvenience or an alteration of job responsibilities.'" Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (citations and footnote omitted). In an age discrimination case, " [a] materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." Crady v. Liberty Nat'l Bank Trust Co., 993 F.2d 132, 136 (7th Cir. 1993), quoted in Galabya, 202 F.3d at 640. As this Court stated in Sank v. City University of New York, No. 94 Civ. 0253, 2003 WL 1807142, at *10 (S.D.N.Y. Apr. 7, 2003):

While adverse employment actions extend beyond readily quantifiable losses, "not everything that makes an employee unhappy is an actionable adverse action." Phillips v. Bowen, 278 F.3d 103, 117 (2d Cir. 2002) (stating that employee's "trivial complaints about an unpleasant working environment" do not constitute adverse employment actions).

A university professor's discontent with course assignments is not an adverse employment action. Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 588 (11th Cir. 2000). As the Gupta court explained:

A university can assign its professors to teach the classes it needs them to teach. Although Gupta complains that she was not assigned a particular class in the second session of Summer 1995, she presented no evidence at all that she was in any way entitled to or particularly deserving of that class, as opposed to the classes she was assigned to teach, or that other untenured professors routinely got to cherry-pick the classes they taught.

Id. at 588; cf. Cussler v. Univ. of Md., 430 F. Supp. 602, 608 (D.Md. 1977) ("[T]he members of the faculty must be willing to adapt their schedules to conform with the needs of the department and the capabilities of other faculty members. No faculty member has a vested right in any course or committee assignment.").

Although Boise claims that tenured professors at the Wagner School are entitled to teach five courses per academic year, the average courseload for full-time faculty in the relevant years was less than four courses per academic year. Moreover, even if the actual standard was for faculty to teach five courses, Boise has stated no basis to claim that teaching four courses significantly diminished his material responsibilities and that it was a materially adverse change of working conditions. His teaching load had no material effect on his employment and cannot be considered an adverse employment action for purposes of the ADEA. Accordingly, as a matter of law, NYU is entitled to summary judgment.

In addition, Boise has submitted no evidence to show that the four-course schedule was assigned under circumstances that give rise to an inference of discrimination on the basis of age. He points to circumstantial evidence, arguing that he was assigned four courses and that he is over 70 years old. At least a dozen other faculty members over 70 years old taught at the Wagner School during Boufford's deanship. Boise has acknowledged that NYU assesses faculty qualifications without regard to age and that NYU has not discriminated against Professor Netzer, his only peer in age at the Wagner School. Boise has also testified that far younger professors have been denied tenure for failing to meet NYU's expectations for faculty.

Moreover, in his deposition, Boise repeatedly did not ascribe a motivation based upon age to Boufford. Instead, on several occasions, he attributed her actions to preferences toward her purported friends or hostility toward Boise personally. See, e.g., Williams v. Greendolf, Inc., 1997 WL 399657, at *2 (S.D.N.Y. 1997) (holding that a preference for friends does not support a claim of discrimination), aff'd, 166 F.3d 1203 (2d Cir. 1998); see also Fisher v. Vassar Coll., 114 F.3d 1332, 1337 (2d Cir. 1997) (en banc) (treating as non-discriminatory reasons for employment actions "back-scratching, log-rolling, horse-trading, institutional politics, envy, nepotism, spite, or personal hostility"), abrogated on other grounds by Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000).

Boise further alleges that this is a mixed motive discrimination case. To warrant analysis for mixed-motive on summary judgment, the Second Circuit has required that a plaintiff "be able to produce a `smoking gun' or at least a `thick cloud of smoke' to support his allegations of discriminatory treatment." Raskin v. Wyatt Co., 125 F.3d 55, 60-61 (2d Cir. 1997); accord Gant ex rel. Gant v. Wallingford Bd. of Educ., 195 F.3d 134 146 n. 16 (2d Cir. 1999) ("Where, as here, the plaintiff fails to produce any such evidence, the plaintiff cannot withstand a motion for summary judgment by arguing that a jury might reasonably find in his favor under the mixed-motives framework.").

Boise has no direct or circumstantial evidence of age discrimination that would satisfy the mixed-motive or pretext standards. Furthermore, even if Boise had sufficient evidence of discriminatory motive to trigger NYU's burden to assert its affirmative defense, NYU has produced undisputed evidence that it would have reached the same decision in the absence of any impermissible motivation. See Desert Palace, Inc. v. Costa, 123 S.Ct. 2148, 2150-51 (2003); Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45, 109 S.Ct. 1775, 1788 (1989); Tyler, 958 F.2d at 1181. Moreover, and not disputed by Boise, age of faculty was never taken into account in any teaching assignments.

C. NYU Has a Legitimate. Non-Discriminatory Reason for its Actions

Even if Boise had stated a prima facie case of discrimination, NYU had legitimate, non-discriminatory reasons for scheduling Boise to teach four courses. NYU has the discretion to assign courses according to its institutional needs and the intellectual rigor of individual faculty members. See, e.g., Gupta v. Fla. Bd. of Regents, supra, and Cussler v. Univ. of Md., supra.

Furthermore, universities are entitled to a degree of deference in the exercise of academic judgment. Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985) ("When judges are asked to review the substance of a genuinely academic decision, . . . they may not override it unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment."); accord Univ. of Penn. v. EEOC, 493 U.S. 182, 199 (1990) ("[C]ourts have stressed the importance of avoiding second-guessing of legitimate academic judgments.").

The Wagner School received complaints from the students enrolled in Human Resources Management, taught by Boise in the fall of 1999. Boise has not published scholarly work, and he does not serve any active role in outside organizations. Moreover, Boise has not given a grade other than "A" for completed course work at any time while Boufford was in office, raising a concern about the level of scholarly rigor that students expected from the Wagner School — concerns that were echoed in student complaints.

Based on the foregoing, there is no genuine issue of material fact regarding Boise's discrimination claim, and NYU is entitled to summary judgment.

III. Boise Has Failed to State a Work Environment Claim

To state a claim for hostile work environment, Boise must allege facts that show that the workplace was permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter the conditions of the work environment. Alfano v. Costello, 294 F.3d 365, 373-74 (2d Cir. 2002). The conduct must be so severe or pervasive that the environment "would reasonably be perceived, and is perceived, as hostile or abusive." Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993);accord Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) ("[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position."). Discrimination statutes are not a general civility code. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998); Holtz v. Rockefeller Co., 258 F.3d 62, 75 (2d Cir. 2001).

Courts must further be mindful that:

[e]veryone can be characterized by sex, race, ethnicity, or (real or perceived) disability; and many bosses are harsh, unjust, and rude. It is therefore important in hostile work environment cases to exclude from consideration personnel decisions that lack a linkage or correlation to the claimed ground of discrimination. Otherwise, the federal courts will become a court of personnel appeals.

Alfano, 294 F.3d at 377; accord Byrnie v. Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001) ("[The court's] role is to prevent unlawful [employment] practices, not to act as a superpersonnel department that second guesses employers' business judgments." (internal quotation marks omitted).

In his amended complaint, Boise alleged that his hostile work environment claim was premised on Boufford's "unjustified personal criticism." At his deposition, Boise testified that Boufford never verbally criticized him. Instead, he premised his hostile work environment claim on Boufford's failure to compliment him and generally expressed his distaste for Boufford.

First, Boise must provide evidence that these events occurred within the relevant time period beginning June 23, 1999.¹ Second, Boise has presented no events so severe or pervasive that they altered Boise's work environment. Third, in an effort to impose a general code of civility, Boise seeks to challenge Boufford's academic and business judgment. Boise has not presented evidence that any of the incidents purportedly contributing to a hostile work environment were motivated by age discrimination.

1 Events occurring outside the statutory period may not be considered in determining liability in a hostile environment claim unless an act contributing to the hostile environment occurred within the statutory period. Nat'l R.R. Passenger Corp., 536 U.S. at 122 ("A charge alleging a hostile work environment claim . . . will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period.").

Boise, by deposition, cited roughly a dozen encounters with Boufford over a five year period that he claims contributed to a hostile work environment. Certain of those incidents involved discussions at annual one-on-one meetings where Boise believed Boufford should have acted nicer, complimented his work, and appointed him to special posts within the Wagner School. The claim that Boufford assigned Boise to work with Professor Smith occurred a year before the relevant time period.

All of the evidence indicates that Boise's problems with Boufford, if any, stemmed from personal differences, not intentional age discrimination. Boise has acknowledged that he has no evidence that Boufford's action were motivated by age discrimination. Despite his obviously unharmonious relationship with Smith and Boufford, Boise has set forth no facts that support his claim that his work environment was rendered hostile by unlawful discrimination, rather than by an ordinary clash of wills. See, e.g., Kodengada v. Int'l Bus. Mach Corp., 88 F. Supp.2d 236, 243 (S.D.N.Y. 2000) aff'd, 242 F.3d 366 (2d Cir. 2000) (personality conflicts, absent discriminatory animus, are insufficient to support a hostile work environment claim).

There is no genuine issue of material fact requiring a trial. NYU is entitled to summary judgment on Boise's hostile work environment claim.

IV. Boise's Retaliation Claim Must be Dismissed

A viable claim for retaliation requires that plaintiff show:

that he engaged in protected activity, that the employer was aware of this activity, that the employer took adverse action against the plaintiff, and that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action.

Sands v. Runyon, 28 F.3d 1323, 1331 (2d Cir. 1994); accord Torres v. Pisano, 116 F.3d 625, 639 (2d Cir. 1997); Van Zant v. KLM Dutch Royal Airlines, 80 F.3d 708, 714 (2d Cir. 1996). "Retaliation laws are intended to protect employees from genuine workplace mistreatment and harassment; they are not intended to guarantee that employees will never suffer inconveniences or that their every desire will be fulfilled." Ruggieri v. Harrington, 146 F. Supp.2d 202, 218 (E.D.N.Y. 2001).

A. No Adverse Action

Reading the amended complaint liberally, Boise has alleged that Boufford retaliated against him not because of allegations of age discrimination, but because of his "unwillingness to be assigned to and work for a junior professor." The act of retaliation is alleged to be the failure to schedule Boise for five courses. However, courseload assignment under these circumstances was not an adverse employment action. No evidence supports a causal connection between Boise's charge of age discrimination and the purported adverse actions. Finally, even if Boise had sustained a prima facie case of retaliation, NYU has legitimate, non-discriminatory reasons for its actions that negate any claim of retaliatory animus. Accordingly, NYU is entitled to summary judgment dismissing Boise's retaliation claim.

Boise has further cited the cancellation of two of his courses for low enrollment during the 1999-2000 academic year. During all relevant times, however, Boise was a tenured professor who retained all the salary, benefits, and responsibilities of a tenured profession and there is no evidence that the cancellation of the classes had a material effect on his employment.

Accordingly, Boise has not presented any genuine issue of fact regarding whether he suffered an adverse employment action.

B. No Causal Connection

Even if Boise had suffered an adverse employment action, he must present some evidence of a causal connection between his charge of age discrimination and the adverse employment action. "A causal connection may be established either indirectly by showing that the protected activity was followed closely by discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or directly through evidence of retaliatory animus directed against a plaintiff by the defendant." Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991) (internal quotations omitted).

In this case, at best, Boise only presents temporal proximity as a basis for the causal connection to support his retaliation claim. "The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be `very close.'" Clark Co. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (citing Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) `(holding three-month period insufficient to establish causal connection), and Hughes v. Derwinski, 967 F.2d 1168, 1174-75 (7th Cir. 1992) (four-month period insufficient)).

C. Legitimate, Non-discriminatory Reason

Finally, even if Boise had stated a prima facie case of retaliation, NYU has legitimate, non-discriminatory reasons for its actions. Moreover, as explained above, the Court must afford NYU a degree of deference for its exercise of academic judgment. E.g., Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985).

With regard to Boise's courseload, Boufford assigned courses according to her assessment of the goals for the Wagner faculty and the interests of Wagner students. There is no basis to second guess her professional, academic judgment. See, e.g., Gupta v. Fla. Bd. of Regents, supra andCussler v. Univ. of Md., supra.

On average, between 1999-2002, tenured Wagner School faculty taught fewer than four courses per academic year. Furthermore, Boufford had serious concerns about Boise's ability to teach any courses in addition to those scheduled and was concerned about the level of scholarly rigor that students expected from the Wagner School. There is no evidence that Boise's courseload was assigned in retaliation for his age discrimination complaints. As stated in Sank v. City University, supra, at *14:

To sum up, a Title VII retaliation claim will not be permitted to become a vehicle to litigate grievances by a tenured professor at war with the administrators of the college.

The same applies to an ADEA retaliation claim.

There is no genuine issue of material fact regarding Boise's retaliation claim.

Conclusion

For the reasons set forth, Boise's complaint is dismissed.