The opinion of the court was delivered by: Hon. Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Plaintiff Richard J. Plantan ("Plantan") filed suit against his
employer, Harry S. Truman College, alleging race discrimination in
violation of Title VII of the Civil Rights Act of 1964.*fn1
Plantan, a professor of accounting at Truman College, was
suspended from teaching for the Fall 2008 semester for violating
certain City Colleges Work Rules relating to insubordination, failure
to complete an assignment, and incompetency or inefficiency. Plantan
claims damages resulting from the suspension that include a loss of
approximately $50,000 in wages, $5,000 in Truman College contributions
to his pension plan and, depending on when Plantan retires, an approximate
loss of $50,000 due to the long-term effect of the suspension on the
resultantly reduced contribution rate to his pension. Plantan, who is
Caucasian, claims that the decision by the College administrators to
suspend him was improperly based on his race. Plantan points to the
fact that many, if not all, of the administrative officers in the
decision-making process are of minority heritage. For the reasons
stated below, the College is entitled to summary judgment on the sole
remaining Count of Plantan's Second Amended Complaint. In addition,
Plantan's Motion to Strike Defendant's Statement of Facts in Part Due
to Spoliation is denied.
I. The Material Undisputed Facts
Richard Plantan has been an employee of the City Colleges since 1970. (Pl. 56.1 Resp. ¶ 1). In 1996 Plantan transferred to Harry S. Truman College as a full time professor in the Department of Computer Information Systems and Business. (Id. ¶¶ 2, 4). Plantan regularly teaches two courses: "An Introduction to Business," and "Financial Accounting." (Id. ¶ 4). The relationship between faculty and the City Colleges is governed by a Collective Bargaining Agreement. (Id. ¶ 8). Faculty members are evaluated by a Faculty Evaluation Process in a manner proscribed by the Agreement. (Id.). The Faculty Evaluation Process is overseen by a Department Evaluation Committee, which is composed of the department chair of the relevant department for the faculty member being evaluated, the Academic Vice President for the College (or his or her designees), and two other members of the relevant department. (Id. ¶ 9). The Committee evaluates faculty members and then makes recommendations to the College administration. (Id. ¶ 10).*fn2
The Committee is empowered to recommend an "enhancement" if a faculty member is determined to have a deficiency in a particular area of his teaching or job performance. (Id.). If a faculty member receives enhancement, he will usually be required to show satisfactory improvement in that area or those areas identified by the Committee for enhancement. (Id.). A faculty member placed on enhancement will usually remain on enhancement until the Committee and the Truman College administration determine that the faculty member has satisfactorily demonstrated completion or improvement in the area(s) designated for enhancement. (Id.). Whether or not to enhance is a decision made by the College administrators based on the recommendation of the Committee. (Id.). The Collective Bargaining Agreement provides that any faculty member who is enhanced by the Committee will have one year to demonstrate improvement. (Id. ¶ 11). With respect to an ongoing enhancement-that is, an enhancement that is not cured within the proscribed year or that persists on a continuing basis-the practice of Truman College is to evaluate the faculty member's compliance with the enhancement on a semester by semester basis. (Id. ¶ 12).
Plantan was placed on enhancement by the College in 1999 and he remained on enhancement continuously through his suspension. (Id.). Plaintiff admits to being on enhancement "probably since 1999" and to "being evaluated every single year and enhanced every single year." (Id. ¶ 14; Plantan Dep., pp. 25-26). He states that "since [he is] a stubborn human being, [he] kept ignoring them," and "not doing anything in terms of the enhancement." (Id. ¶¶ 14, 16; Plantan Dep., pp 25-26, p. 92). Plantan testified that he was continuously on enhancement from 1999 until 2010. (Id. ¶ 14; Plantan Dep., pg. 27). Plantan claims that he was not on enhancement from 2006 through 2007. (Id. ¶ 13). This fact is stricken because it is supported only by a self-serving declaration and conflicts with Plantan's affidavit, in which he states that he was on continuous enhancement from 1999 through 2010. (Plantan Dep., pg. 27).
Since the Spring of 2003, the Committee's continued enhancement requirements for Plantan have focused on his lack of proficiency with and use of computer technology in his teaching. (Id. ¶¶ 17-18). The issue of incorporating new technology tools into the classroom was brought to Plantan's attention in 2003. (Id. ¶ 18). The Committee required that all faculty members who taught financial or management accounting integrate spreadsheets and computer assignments into their teaching. (Id.)
On May 4, 2006, Dr. Pervez Rahman, the Academic Vice President of the College and a member of the Committee, sent Plantan a memorandum outlining the steps that Plantan needed to take to meet his continued enhancement requirements. (Id. ¶ 19). These included the introduction of new technology tools to Plantan's students, such as trips to the computer lab and demonstrations of spreadsheets of financial statements, and the incorporation of those tools into his lectures, as well as a demonstration to the Committee of Plantan's proficiency in the use of this technology and how he uses it in the classroom. (Id.). Rahman's memo further stated that Plantan needed to comply with the enhancement requirements before the end of the Spring 2006 semester and that Plantan should meet with Rahman and the Committee before Plantan left for summer break to assess the progress that Plantan was making towards compliance with the Committee's requirements. (Id. ¶ 20). Plantan never meet with the Committee prior to the end of the semester. (Id. ¶ 21).
In the Fall of 2007, the Committee recommended continued enhancement of Plantan at their Committee meeting. (Id. ¶ 22). The Committee informed Plantan at a meeting held in the Fall that he was required to meet the criteria of his prior enhancement, set out in the May 4, 2006 memorandum, by the end of the Spring 2008 semester. (Id.). In addition to Plantan and Rahman, the meeting included Sanzavale Maliza, Plantan's Department Chair, and Bernice Downs, Associate Dean of Instruction. (Id.). Rahman further sent a memorandum to Plantan on January 31, 2008, confirming the decision of the Committee to keep Plantan on enhancement and again informed Plantan of the requirements of his enhancement. (Id. ¶ 25). (Id.). Rahman advised Plantan that he would be required to meet with the Committee to determine his compliance with his enhancement criteria by the end of the term. (Id. ¶ 26). Rahman also stated that the enhancement agreement would not be extended beyond the end of the Spring 2008 term. (Id.).
On April 25, 2008, as the Spring term was nearing a close, Associate Dean Downs sent two emails to Plantan, one at 4:31 p.m. and another at 4:37 p.m. (Id. ¶ 30). The first email was captioned with subject line "Enhancement Requirements," and the second with "Project Presentations." (Id.). The first email explained that Plantan had failed to show any compliance with his enhancement requirements and instructed him to appear at an appointed teaching demonstration on Thursday, May 1 at 1:30 p.m. (Id. ¶ 31). The records of the computer systems maintained by the College show that the first email was delivered to Plantan on April 25, 2008 at 4:35 p.m. but was never read by him. (Id. ¶ 32). These records also indicate that the second email was read by Plantan on May 1, 2008 at 10:55 a.m., over two and a half hours before the scheduled teaching demonstration. (Id.). Plantan, however, failed to appear for the teaching demonstration, and upon investigation the Committee members found Plantan's office dark and locked. (Id. ¶¶ 35-36).
Plantan claims that on May 6, 2008 he delivered his response and evidence of compliance with the enhancement requirements to Anthony Johnston, Plantan's Union representative. (Def. Supp. 56.1 Reply ¶ 23). Plantan cites to his Exhibit 14, which is a document titled "Response To Enhancement Plan," and claims that it is a compliant response. (Id.). However, Exhibit 14 does not establish compliance with any of the enhancement criteria, including proficiency with technology and the use of this technology in the classroom. (Id.). Plantan also claims that Johnston told him that he delivered the response to Associate Dean Downs. (Id.). This fact is not supported by any evidence and is self-serving, and is therefore stricken. Plantan alternatively claims that he submitted Exhibit 14 on or about May 14, 2008 (Pl. 56.1 Resp. ¶ 44). Although Plantan does not say that he submitted Exhibit 14 through Johnston, Johnston's deposition testimony is the corroborating evidence, and Johnston testified that he delivered the materials on or about May 14, 2008. (Johnston Dep. pg. 27). Nevertheless, Exhibit 14 is not a compliant response to the enhancement requirements.
Having failed to take any of the remedial steps necessary to cure his enhancement status, and having failed to appear at the scheduled teaching demonstration, the City Colleges began disciplinary proceedings against Plantan. (Pl. 56.1 Resp. ¶ 37). On May 15, 2008, Lynn Walker, the Interim President of Truman College, sent a letter to Plantan notifying him that a pre-disciplinary hearing would be held and that he was being charged with violating certain City Colleges Work Rules.
(Id.). Plantan received Walker's letter by certified mail; by Plantan's estimation he received it within three to five days of it being mailed. (Id. ¶ 38; Plantan Dep., p. 56). The City Colleges charged Plantan with violating certain "City College Work Rules relating to (a) insubordinate actions, (b) failing to take action as needed to complete an assignment, and (c) incompetency or inefficiency in the performance of the duties of his position." (Pl. 56.1 Resp. ¶ 37; Rahman Decl., Exhibit 8).
A pre-disciplinary hearing was held for Plantan on June 9, 2008 over which Rahman presided. (Pl. 56.1 Resp. ¶ 39). Among those in attendance at the hearing was Dean of Instruction Elizabeth Roeger, who, like Plantan, is Caucasian. (Def. 56.1 Reply ¶ 26). After hearing the evidence presented at the hearing, Rahman concluded that "(a) [Plantan] had deliberately not opened the first email, (b) [Plantan] was not adequately using technology in his teaching, including specifically his failure to use Excell or some other software to create spreadsheets in his Business 181 Financial Accounting course, and (c) on the issue of insubordination, Plantan has demonstrated a pattern of failing to take action as needed to complete an assignment." (Pl. 561. Resp. ¶ 44). Rahman's conclusions from the hearing were set forth in a memorandum dated July 2, 2008, and sent to Interim President Walker. (Id. ¶39). Walker made the decision to recommend to the Board that Plantan be suspended from teaching for one semester without pay. (Id. ¶ 47). After the pre-disciplinary hearing, Plantan's Union representatives filed a grievance on Plantan's behalf. (Id. ¶ 75). The City Colleges denied the grievance. (Id.). The Union chose not to appeal the denial of the grievance. (Id.).
Based on the recommendation from Walker, then-Chancellor Wayne Watson sent Plantan a letter by certified mail informing him of Walker's recommendation, that the recommendation had been accepted, and that the recommendation would be presented to the Board for action at the next Board meeting on July 16, 2008. (Id. ¶ 49). The letter was sent on July 14, 2008, and by his own admission and estimation, Plantan received the letter within three to five days from the time it was mailed. (Id. ¶ 50). Plantan acknowledged that upon receiving what he referred to as "the suspension letter," he knew he was going to be suspended. (Id. ¶¶ 52-53). Plantan was suspended without pay for the Fall 2008 semester, beginning August 11, 2008 and ending December 12, 2008. (Id. ¶ 53). Plantan's Union representatives could have appealed the suspension, but again chose not to. (Id. ¶ 76). In making the decision not to appeal, the Union concluded that the suspension was a fair and reasonable disciplinary measure. (Id.). Johnston, Plantan's representative, testified that based on his involvement in the entire matter he had no reason to believe that Plantan had been discriminated against because of his race. (Id. ¶ 77).
Since 2006, there have been only two other full-time professors to teach "Financial Accounting" at the College. (Id. ¶ 5). Jonathan Brown, an African-American, is the only other member of the Department of Computer Information Systems and Business to teach this course. (Id. ¶¶ 5-6). Lisa Tekmetarovic, a Caucasian, was a member of the Department of Computer Information Systems and Business and is now in the Social Science Department, but she continues to teach accounting courses in the Department of Computer Information Systems and Business. (Id. ¶¶ 5, 67-68). Full-time tenured faculty members are evaluated every four years, unless they are already subject to enhancement, in which case they are reviewed yearly for a regular enhancement and every semester for an ongoing enhancement. (Id. ¶¶ 11-12). Brown, like Plantan, received enhancement in 1999. (Def. 56.1 Reply ¶ 8). There is no evidence in the record indicating whether Brown's was a one-time enhancement or an ongoing enhancement. What is clear is that Brown was not on enhancement when he came up for evaluation in 2006. (Pl. 56.1 Resp. ¶ 62). Furthermore, at the time of Brown's review there were no outstanding Committee requirements in place that Brown had failed to satisfy. (Id.) Upon evaluating Brown, the Committee considered his use of and proficiency with technology to be greater than Plantan's. (Id. ¶ 63). Furthermore, Brown incorporated technology into his teaching and the Committee determined that he did not merit any enhancement. (Id. ¶¶ 63-64). Unlike Plantan, Brown has never been asked by the Committee or by the Truman College administration to give a teaching demonstration, and Brown had never failed to appear at any required teaching demonstration. (Id. ¶ 65). At the time of the Committee's decision not to enhance Brown, Walker was not yet employed at Truman College and therefore had no involvement in the decision-making process. (Id. ¶ 66). At that time the President of Truman College was Marguerite Boyd and the Dean of Instruction was Elizabeth Roeger. (Id.). Boyd, like Roeger, is Caucasian. (Id.). The other full-time faculty member of the College to teach accounting in the Department is Tekmetarovic. (Id. ¶ 5). Tekmetarovic came up for evaluation in her department in the Fall of 2007. (Id. ¶ 68). Rahman, as Academic Vice President, was a part of the Committee that reviewed Tekmetarovic. (Id.). Upon the completion of the evaluation, the Committee did not recommend Tekmetarovic for enhancement and she did not receive enhancement. (Id).
On May 15, 2009, Plantan filed a charge with the Equal Employment Opportunity Commission alleging that the College had unlawfully discriminated against him on the basis of his race in violation of Title VII of the Civil Rights Act of 1964. (Id. ¶ 55). After pursuing his claim with the EEOC to no avail, Plantan brought suit in this Court alleging in his first Complaint claims against Harry S. Truman College for race discrimination; retaliation; age discrimination; breach of employment contract; disparate treatment and impact on the basis of race; collusion, concerted activity, conspiracy; and defamation per se. (Doc. 1). In his First Amended Complaint Plaintiff named as additional defendants Pervez Rahman and Berniece Downs, in their official and individual capacities. (Doc. 22). In his Second Amended Complaint, Plantan narrowed his focus to two counts: one against Truman College for race discrimination in violation of Title VII and one against all the defendants for race discrimination in violation of 42 U.S.C. § 1981. (Doc. 23). On August 19, 2010 Truman College moved this Court to dismiss Count II of Plantan's Second Amended Complaint for failing to state a claim upon which relief may be granted. (Doc. 33). Plantan then made a Motion for Voluntary Dismissal of Count II of his Second Amended Complaint, which this ...