Alaei v. State University of New York at Albany

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

DR. KAMIAR ALAEI,

Plaintiff, 1:21-cv-00377 (BKS/TWD)

v.

STATE UNIVERSITY OF NEW YORK AT ALBANY,

HAVIDAN RODRIGUEZ, individually and in his official

capacity on behalf of the STATE UNIVERSITY OF NEW

YORK AT ALBANY, BRUCE P. SZELEST, individually

and in his official capacity on behalf of the STATE

UNIVERSITY OF NEW YORK AT ALBANY, and

JAMES R. STELLAR, individually and in his official

capacity on behalf of the STATE UNIVERSITY OF NEW

YORK AT ALBANY,

Defendants.

Appearances:

For Plaintiff:

Joseph F. Castiglione

Young Sommer, LLC

Five Palisades Drive, Suite 300

Albany, NY 12205

For Defendants:

Letitia James

Attorney General for the State of New York

David C. White

Assistant Attorney General, of Counsel

Office of the Attorney General

The Capitol

Albany, NY 12224

Hon. Brenda K. Sannes, Chief United States District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Dr. Kamiar Alaei brings this action against the State University of New York at

Albany (“SUNY Albany” or the “University”), his former employer, as well as Defendants

Havidan Rodriguez, President of SUNY Albany, Bruce P. Szelest, Chief of Staff to the

President, and James R. Stellar, Senior Vice President for Academic Affairs. (Dkt. No. 1).

Plaintiff alleges that Defendants: discriminated against him on the basis of sex, in violation of

Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (“Title IX”); and

deprived him of procedural and substantive due process and equal protection, in violation of the

Fourteenth Amendment, 42 U.S.C. § 1983. (Id.). Presently before the Court is Defendants’

motion under Federal Rule of Civil Procedure 56 for summary judgment. (Dkt. No. 75).

Defendants have filed a reply. (Dkt. No. 86). For the reasons that follow, Defendants’ motion for

summary judgment is granted in part and denied in part.

II. FACTS1

A. Plaintiff’s Background

Plaintiff is a Shia Muslim of Iranian descent. (Dkt. No. 75-3, at 31–32). According to his

attorney, Plaintiff “is a global health policy expert who has been working in conservative social

settings for two decades.” (Dkt. No. 83-1, ¶ 30). In addition to having three masters degrees,

Plaintiff has doctorates in medicine and health policy management. (Dkt. No. 75-3, at 10–12).

Plaintiff has served as a temporary advisor for the United Nations and a consultant for the Pan

1 The facts are drawn from Defendants’ Statement of Undisputed Material Facts, (Dkt. No. 76-1), and Plaintiff’s

Response to Defendant’s Statement of Material Facts, (Dkt. No. 83-10), to the extent the facts are well-supported by

pinpoint citations to the record, as well as the exhibits attached thereto and cited therein. The facts are construed in

the light most favorable to Plaintiff as the non-moving party. Gilles v. Repicky, 511 F.3d 239, 243 (2d Cir. 2007).

American Health Organization in the Pan American region and has received numerous awards

for his work in global health and human rights, including the Ellis Island Medal of Honor. (Dkt.

No. 83-3, at 54, 59–60).

In 2008, while visiting Iran with a group of students “to do research,” Plaintiff was

arrested and imprisoned for more than two year for political reasons. (Dkt. No. 88-3, at 56–57).

Plaintiff returned to the United States upon his release and continued his education at SUNY

Albany. (Id. at 59). While a student, Plaintiff received a $2.5 million grant and was hired by the

SUNY Research Foundation2 to implement the grants. (Id. at 65). In or about 2013, Plaintiff

founded the Global Institute for Health and Human Rights (“GIHHR”), 3 and served as Director.

(Id. at 64, 865).

B. Term Appointment to Lecturer at SUNY Albany

In a letter dated April 16, 2014, (“Appointment Letter”), SUNY Albany notified Plaintiff

of his appointment to the University “as a Research Associate Professor and Lecturer in the

Department of Public Administration and Policy, Rockefeller College of Public Affairs and

Policy.” (Dkt. No. 75-1, ¶ 1; Dkt. No. 83-10, ¶ 1). Plaintiff’s “initial appointment” was “for three

years, commencing on May 1, 2014.” (Dkt. No. 83-3, at 985). The Appointment Letter further

stated that Plaintiff would “have a 12-month full-time obligation,” that “[t]he Lecturer budget

title is a non-tenure-track position in accordance with the Policies of the Trustees of the State

University of New York,” and that in order to “give [Plaintiff] the security of at least two years

2 Plaintiff explained that despite its name, the SUNY Research Foundation is not part of SUNY Albany, but is a

separate non-for-profit entity. (Dkt. No. 83-3, at 65).

3 Plaintiff testified that GIHHR is a “university-wide institute working on . . . research and education and working

with the community” and is focused on promoting the “right to health and right to education for underserved

population.” (Dkt. No. 75-3, at 83). Plaintiff stated that during the relevant time period “[m]ore than fifty students

were working” at GIHHR, as undergraduate and graduate research assistants. (Dkt. No. 83-3, at 85). Plaintiff’s

brother, Arash Alaei, also worked at GIHHR. (Dkt. No. 75-3, at 88).

of employment, the appointment will be reviewed annually for possible extension by another

year.” (Id.). Plaintiff’s appointment was “to a United University Professions (UUP) represented

position, subject to the laws of [New York] and the Policies of the SUNY Board of Trustees.”4

(Id. at 987). In addition, SUNY Albany advised Plaintiff that he would continue to serve as

Director of GIHHR, “with responsibility for oversight, grants development, national outreach

and programming.” (Id.).

SUNY Albany renewed Plaintiff’s term appointment twice: on or about July 18, 2016,

Plaintiff’s term appointment was renewed “for the period beginning May 1, 2017 and ending

April 30, 2018,” (id. at 990); and on or about April 6, 2017, Plaintiff’s term appointment was

renewed “for the period beginning May 1, 2018 and ending April 30, 2019,” (id. at 991).

C. Plaintiff’s Brother’s Separation from SUNY Albany

According to Defendants, in or about 2017, Arash Alaei, Plaintiff’s brother and co-

worker, was “found to have sexually assaulted multiple SUNY Albany students,” (Dkt. No. 75-

28, ¶ 17; Dkt. No. 83-3, at 967–71 (separation agreement dated Sept. 18, 2017)), and was

“terminated based upon serious sexual misconduct,” (Dkt. No. 75-1, ¶ 12). On September 18,

4 The UUP collective bargaining agreement provides that “Appointments of employees shall be made in accordance

with Article XI of the Policies.” (Dkt. No. 75-9, at 40, § 30.1). Article XI of the Policies, “Appointments of

Employees,” provides in relevant part:

Title D. Term Appointment

§ 1. Definition . . . a term appointment shall be an appointment for a specified

period of not more than three years which shall automatically expire at the end of

that period unless terminated earlier because of resignation, retirement, or

termination.

. . .

§4. Renewal of Term . . . term appointments may be renewed by the chief

administrative officer of the college for successive periods of not more than three

years each; such renewals shall be reported to the Chancellor. No term

appointment, of itself, shall be deemed to create any manner of legal right, interest

or expectancy in any other appointment or renewal.

(Dkt. No. 75-15, at 34–35).

2017, Arash Alaei signed a separation agreement with SUNY Albany, which “prohibited him

from being on SUNY Albany property or interacting with SUNY Albany students.” (Dkt. No.

75-1, ¶ 13; Dkt. No. 83-3, at 967–71). Plaintiff testified that although they were both teaching at

SUNY Albany at the time, he was unaware of the sexual harassment allegations by SUNY

Albany students against his brother. (Dkt. No. 75-3, at 170).

D. Student Complaints

In early February 2018, SUNY Albany received two separate complaints regarding

Plaintiff: one regarding Plaintiff’s alleged facilitation of interaction between Arash Alaei and

students and the second regarding Plaintiff’s alleged sexual misconduct toward a student. (Dkt.

No. 75-28, ¶¶ 15, 18). According to Defendants, on or about February 2, 2018, James Stellar,

then-Provost and Senior Vice President for Academic Affairs, was approached by “a number of

students,” who “expressed significant concerns regarding their safety” based on Plaintiff’s

“continued facilitation of interaction between students and [Plaintiff’s] brother and former co-

worker Arash Alaei.” (Dkt. No. 75-28, ¶ 15; Dkt. No. 75-22, ¶¶ 3, 9). Provost Stellar referred the

students’ concerns to Chantelle Botticelli, Assistant Vice President of Equity and Compliance,

who was responsible for “overseeing the institutional response to prohibited discrimination” and

“conducting investigations into complaints brought to the attention of the Title IX office either

formally or informally.” (Dkt. No. 75-5, at 17; Dkt. No. 75-22, ¶ 13; Dkt. No. 75-28, ¶ 5).

Several days later, on February 5, 2018, Brian Selchick, “an employee relations specialist in the

Human Resources office,” (Dkt. No. 75-23, ¶ 4; Dkt. No. 75-28, ¶ 18), “received information

that a student had been subject to alleged sexual misconduct by [Plaintiff] during a trip that both

parties took to Beirut, Lebanon,” (Dkt. No. 75-23, ¶ 11). Selchick testified that as a result of the

complaints regarding Plaintiff’s alleged facilitation of contact between Arash Alaei and students,

and the complaint of sexual misconduct, Human Resources and the Title IX Office commenced a

collaborative investigation.5 (Dkt. No. 75-8, at 26, 30–31).

E. Placement on Alternative Assignment and Removal from GIHHR

Botticelli testified that “given the volume” and “content” of the students’ concerns, which

included complaints from “students saying I feel unsafe in the GIHHR under [Plaintiff’s]

supervision,” and out of concern for “Dr. Alaei’s safety,” Botticelli recommended to Human

Resources that Plaintiff “not have interaction with these students” “while the investigation is

pending.” (Dkt. No. 75-6, at 62–63). In a letter dated February 8, 2018, Randy Stark, Associate

Vice President of Human Resources, advised Plaintiff that he was “the President’s designee,”

that he was “conducting a disciplinary investigation,” and that the action was “being taken

pursuant to the authority granted under Section 19.10.c” of the collective bargaining agreement

(“CBA”), and that he was enclosing “a copy of Article 19, which contains the procedure for the

imposition of discipline,”6 for Plaintiff’s reference. (Dkt. No. 75-24, at 2). Stark informed

5 Selchick explained that “if there was a unionized employee who is the subject of a [Title IX] complaint, then

typically HR would be brought in as a . . . collaborative person as part of the investigation” and a union

representative must be present for any “interview or question[ing]” of the “target of discipline” in any “Title IX

process.” (Dkt. No. 75-8, at 15).

6 Sections 19.4 and 19.10.c., of the “Discipline” section of the CBA provides:

§ 19.4 Disciplinary Procedure

a. Discipline shall be imposed only for just cause. Where the College President,

or designee, seeks to impose discipline, notice of such discipline shall be made in

writing . . . . The conduct for which discipline is being imposed and the penalty

proposed shall be specified in the notice [and t]he notice . . . shall contain a

detailed description of the alleged acts and conduct including reference to dates,

times and places.

b. The penalty proposed may not be implemented until the employee (1) fails to

file a disciplinary grievance within 10 days of service of the notice of discipline,

or (2) having filed a disciplinary grievance, fails to file a timely appeal to

disciplinary arbitration, or (3) having appealed to disciplinary arbitration, until

and to the extent that it is upheld by the disciplinary arbitrator, or (4) until the

matter is settled.

. . . .

Plaintiff that “until further notice,” he was being “directed to perform an alternate assignment”

and “to work from home,” and that Plaintiff would have “no professional obligations that require

or warrant” his “presence on University facilities.” (Id.). Stark also notified Plaintiff that he was

“expressly prohibited from having any verbal, written or electronic communication of any nature

or kind, in any medium, with any current or former University students or employees.”7 (Id. at

3). Stark stated that the matter was “confidential,” and that Plaintiff was not permitted “to

attempt to identify and/or make contact with any individual(s) who” Plaintiff “believe[d] to have

participated in the University’s investigation” and that Plaintiff was not permitted to “discuss this

matter in any way with others” except for the “EAP coordinator,” Plaintiff’s attorney, or his

union representative. (Id. at 2–3). In addition to placing Plaintiff on an alternative assignment,

Stark, at the direction of Provost Stellar and Bruce Szelest, Chief of Staff to President Rodriguez,

removed Plaintiff’s building access card and keys and “cut off Plaintiff’s access to SUNY

email.” (Dkt. No. 83-3, at 329–30). As part of the alternative assignment, Plaintiff was removed

as Director of GIHHR. (Dkt. No. 75-24, at 2; see Dkt. No. 83-3, at 820 (February 9, 2019 email

notifying “GIHHR colleagues and supporters” “that effective today” two new “interim co-

directors” of GIHHR have been named)). Stark testified that Plaintiff was also told not to attend

speaking engagements or lectures as a representative of SUNY Albany. (Dkt. No. 83-3, at 331).

c. Prior to an interrogation pursuant to Section 19.8, the College President or

designee may direct the employee to perform an alternate assignment, which may

be at an alternate work location. Such alternate assignment shall not be regarded

as discipline nor a temporary reassignment as referred to in this Article.

(Dkt. No. 75-9, at 20, 23).

7 Selchick states in his declaration that “[a]lternative assignment protects both the reporting individual and the

respondent” and that it was “standard operating procedure” to place subjects of an investigation “on alternative

assignment while an investigation was undertaken.” (Dkt. No. 75-23, ¶ 17).

F. Joint Investigation by Human Resources and the Title IX Office

Botticelli testified that Szelest, President Rodriguez’s chief of staff, asked her to make the

investigation a top priority:

In this particular case . . . there was concerns about the student and

about Dr. Alaei. And so [Szelest] said . . . there’s very serious

allegations being made, emotions are rising, those emotions can

impact the stability and safety of the students in the center, and they

can impact the safety and stability of Dr. Alaei, so let’s get to the

bottom of this quickly so that we can address it.

(Dkt. No. 75-6, at 140). According to Defendants, the joint investigation by Human Resources

and the Title IX Office “spanned more than two months and involved interviews of at least forty-

three individuals,” (Dkt. No. 75-28, ¶ 22; Dkt. No. 75-8, at 54–55), including the alleged victim

of sexual misconduct, who “alleged she had been subjected to multiple instances of sexually

inappropriate behavior” by Plaintiff. (Dkt. No. 75-28, ¶ 19). Following the investigation, the

Title IX Office completed an investigative report “summarizing the evidence gathered during the

investigation.” (Dkt. No. 75-6, at 28; Dkt. No. 75-30). The investigative report states that the

“investigation focused on the following possible violations of the University at Albany policies”

by Plaintiff: “insubordination and general misconduct for permitting Dr. Arash Alaei to conduct

business on behalf of the GIHHR after his separation from the University at Albany;”

“insubordination and general misconduct for facilitating contact between Dr. Arash Alaei and the

GIHHR staff and students during Dr. Arash Alaei’s alternative assignment and after his

separation from the University at Albany”; and “violation of the University at Albany’s sexual

harassment policy for engaging in unwelcome conduct of a sexual nature directed at GIHHR

student intern [blank] that created a sexually hostile environment for working and learning.” 8

8 Botticelli and Selchick state in their declarations that during the investigation, “multiple individuals” alleged

“additional possible violations of SUNY Albany policies.” (Dkt. No. 75-28, ¶ 23; Dkt. No. 75-23, ¶ 14).

(Dkt. No. 75-6, at 28–29). Botticelli testified her assessment of the “credibility and reliability” of

the students’ allegations was that they “were supported by the evidence,” (id. at 34), and that it

was her opinion and recommendation “that HR should proceed through the disciplinary process,”

(Id. at 129). However, Botticelli stated, Human Resources was responsible for the final decision

regarding how to move forward with respect to the allegations against Plaintiff. (Id. at 43).

G. Non-Renewal of Term Appointment

As noted above, SUNY Albany had previously renewed Plaintiff’s term appointment “for

the period beginning May 1, 2018 and ending April 30, 2019.” (Dkt. No. 83-3, at 991). On April

28, 2018, William Hedberg, the Senior Associate Provost, emailed Plaintiff’s supervisor, Harvey

Charles a draft letter of nonrenewal for Plaintiff and requested that Charles sign it. (Id. at 853).

Charles responded that because the draft was “actually a recommendation from [him] to” Provost

Stellar, and because he knew “practically nothing about this situation,” he felt “uncomfortable

making a recommendation to the Provost without a basis to do so” and asked whether “this

[c]ould be handled differently?” (Id.). Hedberg replied that Charles was “the supervisor of

record,” that this started “the negotiated process provided in the UUP Agreement,” that Plaintiff

would have “an opportunity to respond,” and that Provost Stellar would then “take[] up the

matter.” (Id.). Charles signed the non-renewal form.9 (Id. at 857).

On April 30, 2018, Hedberg emailed Plaintiff the “the attached form to non-renew your

University appointment” and advised that Plaintiff was “entitled to provide a written response

before the document is presented to the Provost” and that any response was due by May 8, 2018.

9 In an email dated May 2, 2018, to Stark, Charles wrote that he initially declined to sign the non-renewal form as he

had “no information that can be used as a basis to recommend that [Plaintiff] not be renewed” but that he did not

seek “such information” since it was “clear . . . that the Provost has decided not to renew [Plaintiff’s] contract,” and

that he had signed the form “in order the [sic] complete the paperwork per the wishes of the Provost.” (Dkt. No. 83-

3, at 854).

(Id. at 855). In a letter to Hedberg dated May 8, 2018, Plaintiff responded that he believed the

non-renewal was “unfair and unwarranted given [his] productivity and accomplishments in the

areas of scholarship, extramural funding, teaching, and mentoring.” (Id. at 862). Plaintiff noted,

among other accomplishments, the $6.5 million in “extramural funding” that he secured, his

development of “an interdisciplinary graduate certificate program in health and human rights” as

well as an LLM degree in the same area in collaboration with a nearby law school, the popularity

of his courses, and the creation of the GIHHR. (Id. at 862–66). Plaintiff therefore requested that

his appointment be extended. (Id. at 866). In addition, Plaintiff asserted that because his “initial

appointment dated on April 16, 2014,” gave him “the security of at least two years of

employment,” he was entitled to two-years’ notice, and that the proposed end date was not April

30, 2019, but April 30, 2020. (Id.).

H. Disciplinary Interrogation

In a memorandum dated May 8, 2018, Selchick directed Plaintiff to report “for a

disciplinary interrogation” on May 9, 2018. (Dkt. No. 75-25, at 2). Selchick advised Plaintiff that

he had the right “to have representation by UUP or counsel at this meeting.” (Id.). Plaintiff,

Plaintiff’s attorney, Selchick, Stark, and Charles attended the May 9, 2018 meeting, where,

according to Selchick, Plaintiff “was interrogated pursuant to the provisions of the UUP

agreement and was questioned in relation to the allegations being made against him in order to

provide him with the opportunity to tell his side of the story.” (Dkt. No. 83-3, at 130; Dkt. No.

75-23, ¶ 22). Castiglione, Plaintiff’s attorney, states in his declaration that he attended this

meeting and that while “HR asked Dr. Alaei numerous questions about various matters,” it

“never directly advised what the basis was for putting Dr. Alaei on alternative assignment and

initiating the disciplinary investigation” or “about the Title IX sexual misconduct investigation

either.” (Dkt. No. 83-1, ¶ 106).

I. Non-Renewal Correspondence

On or about May 14, 2018, Provost Stellar signed the “Change of Status Request Form”

directing the issuance of a “one year notice of non-renewal” to Plaintiff. (Dkt. No. 83-3, at 861).

In a May 14, 2018, email, Hedberg notified Plaintiff that “[t]he Provost has signed the form from

Dean Harvey Charles for non-renewal of your appointment” and that the next step would be for

the President Rodriguez “to review the file and make his decision,” but that “[b]efore the

decision,” Plaintiff had “five working days to review the file and to submit a statement in

response.” (Dkt. No. 75-19, at 2). In a letter to President Rodriguez dated May 22, 2018, Plaintiff

wrote that he had been informed that his “appointment was not renewed” and outlined “reasons

why [his] contract should be continued,” including his receipt of nearly $4 million in funding,

and his securing of $6.5 million “in extramural funding,” development of new courses that have

been popular with students, development of “several federally funded international online

education initiatives,” service as “a consultant to the World Health Organization,” provision of

“mentorship to over 60 interns and research assistants and scholars each semester,” and receipt

of positive feedback on his performance from the administration. (Dkt. No. 75-16, at 2). Plaintiff

testified that no one at SUNY Albany explained why they were seeking non-renewal. (Dkt. No.

83-3, at 140–41).

J. Counseling Memo

On July 6, 2018, Stark emailed SUNY counsel, Valerie Ayers, “a counseling memo that

we worked on for” Plaintiff. (Dkt. No. 83-3, at 874). Stark told Ayers that “[i]t was a struggle” to

write because:

There wasn’t really anything to counsel him on since the sexual

misconduct allegations were unfounded. We planned to give him

policies on sexual harassment, Workplace Violence, etc., but for

what purpose, as we are going to non-renew him and buy him out.

After discussing the question, does it really serve any purposes to

issue this memo other than it gives [Plaintiff] and his attorney more

info for their war chest? We are now thinking that we do not issue

the memo unless there is some value to having issued it.

What are your thoughts about not issuing and going right to the

president signing off on the non-renewal?

(Id. at 325, 874). Stark sent Ayers a second email on July 9, 2019, stating:

After thinking about this over the weekend, if this was in fact a

formal complaint we probably need to close the loop in the event the

student decides to pursue this any further and by having the

counseling session it documents our follow up and findings and

closes our investigation. We are checking with the Title IX folks to

see if there was a formal complaint made.10

(Id. at 875). In a July 9, 2018 email, Ayers responded: “I agree you need to wrap it up. . . . There

has to be something you can get out of the student’s complaint.” (Id.). Selchick states in his

declaration:

25. Ultimately, [Human Resources] determined that while the

allegations made against Kamiar Alaei were credible, meaning there

was no reason to doubt the veracity of the complainants, there was

insufficient evidence for the University to prove the allegations

beyond a preponderance of the evidence at a disciplinary arbitration,

which is what was required pursuant to the UUP agreement.

26. This determination not to pursue disciplinary charges was made

not based upon the truthfulness of the complaints, but upon the

difficulty associated with presenting evidence at an arbitration

proceeding absent subpoena power in order to secure necessary

testimony.

27. As a result, my office found the allegations against Kamiar Alaei

to be unsubstantiated which resulted in Kamiar Alaei being issued a

counseling memo and no formal discipline being taken against him

in relation to the investigation.

(Dkt. No. 75-23, ¶¶ 25–27).

10 The Title IX office had no record of a formal or informal complaint. (Dkt. No. 83-3, at 876).

On August 9, 2018, Plaintiff attended a “counseling session” with Stark and Selchick.

(Dkt. No. 83-3, at 877). Plaintiff testified that he attended with counsel, and that Stark and

Selchick told him “there is nothing founded” and that he was “good to go back to work next day

[sic] nine a.m.” (Id. at 141). Plaintiff stated that when he asked about his access to email, which

had been blocked for six months, and mentioned that all his “projects was [sic] damaged,” Stark

and Selchick responded that it was “no problem,” that they would “fix it,” and that Plaintiff

would have access to email the next morning. (Id.). Stark testified that at that meeting, he

explained to Plaintiff that no discipline would be imposed and that he was to return to work. (Id.

at 346–47).

K. Termination

Plaintiff testified that when he reported to work the next day, he was called to Human

Resources, where Stark and Selchick met him with a letter dated August 10, 2018, and signed by

Stark, stating that his employment was terminated. (Dkt. No. 83-3, at 142–43, 994; Dkt. No. 83-

3, at 347 (Stark testifying that on August 10, 2018, he met with Plaintiff and handed him a letter

advising him that his employment had been terminated)). The letter stated:

On behalf of the President and in compliance with the Policies of

the Board of Trustees, this letter is to inform you of the renewal of

your term appointment with the terms detailed below.

Title: Lecturer (12 month)

Status: Full-time Term

Salary: $130,000 annual salary

Dates: August 10, 2018-August 9, 2019

This letter will also serve to notify you that your term appointment

as a Lecturer in the Global Institute for Health and Human Rights

(GIHHR) will not be extended beyond the present termination date,

close of business August 9, 2019.

In accordance with Article 32.3 of the UUP Agreement. the

University is exercising its right and has elected to terminate your

appointment effective August 10, 2018. The University will pay the

balance of salary remaining on your term appointment from August

10, 2018 through August 9, 2019.

(Dkt. No. 83-3, at 993).

L. Plaintiff’s Filing of a Grievance

On March 20, 2018, Plaintiff filed a grievance asserting that despite the UUP contractual

mandate that the “alternative assignment is not a form of discipline,” SUNY Albany “has taken

several disciplinary measures against” him, including the directions that he not “discuss ‘the

matter’ with ‘anyone’” (despite the fact that “the details of [the matter] were not shared with

him”) or contact his students or University staff, blocking Plaintiff “from accessing to his

University email account,” and appointing interim co-directors the GIHHR, “thereby removing

[Plaintiff] from his position in the eyes of the community.” (Dkt. No. 75-17, at 5). On May 23,

2018, noting that there had “been no decision issued at Step 2 within the time limits given,”

Plaintiff appealed to Step 3 of the grievance procedure. (Dkt. No. 83-3, at 896). On February 27,

2019, Plaintiff’s grievance was settled; Selchick testified that “[a]ll I recall is that it was that the

State would reaffirm its obligations under Article 19 and in exchange the Union will withdraw

the contract grievance.” (Dkt. No. 75-14, at 8–9; Dkt. No. 75-8, at 49).11

III. STANDARD OF REVIEW

Under Rule 56(a), summary judgment may be granted only if all the submissions taken

together “show that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);

11 On January 23, 2019, Plaintiff filed a verified notice of claim against the State of New York in the New York

State Court of Claims alleging breach of contract, negligent infliction of emotional distress, and defamation. (Dkt.

No. 83-3, at 14, 882–83). A trial was held from June 6–7, 2022, at which exhibits were presented and six witnesses,

including Plaintiff, Charles, Stark, and Selchick, testified. (Id. at 36–38, 268–70). On June 6, 2023, the Court of

Claims entered judgment dismissing Plaintiff’s claims. (Id. at 14–15; see also id. at 16–34 (Decision by Court of

Claims Judge Frank P. Milano dismissing Plaintiff’s claims)). An appeal is pending. (Id. at 11).

see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). The moving party bears

the initial burden of demonstrating “the absence of a genuine issue of material fact.” Celotex,

477 U.S. at 323. A fact is “material” if it “might affect the outcome of the suit under the

governing law,” and is genuinely in dispute “if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see also Jeffreys v. City of

New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson, 477 U.S. at 248). The movant may

meet this burden by showing that the nonmoving party has “fail[ed] to make a showing sufficient

to establish the existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex, 477 U.S. at 322; see also Selevan v. N.Y. Thruway

Auth., 711 F.3d 253, 256 (2d Cir. 2013) (explaining that summary judgment is appropriate where

the nonmoving party fails to “‘come forth with evidence sufficient to permit a reasonable juror to

return a verdict in his or her favor on’ an essential element of a claim” (quoting In re Omnicom

Grp., Inc. Sec. Litig., 597 F.3d 501, 509 (2d Cir. 2010))).

If the moving party meets this burden, the nonmoving party must “set forth specific facts

showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248, 250; see also Celotex,

477 U.S. at 323–24; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “When ruling on a

summary judgment motion, the district court must construe the facts in the light most favorable

to the non-moving party and must resolve all ambiguities and draw all reasonable inferences

against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003).

Still, the nonmoving party “must do more than simply show that there is some metaphysical

doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986), and cannot rely on “mere speculation or conjecture as to the true nature of the facts

to overcome a motion for summary judgment,” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d

Cir. 1986) (citing Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985)).

Furthermore, “[m]ere conclusory allegations or denials . . . cannot by themselves create a

genuine issue of material fact where none would otherwise exist.” Hicks v. Baines, 593 F.3d 159,

166 (2d Cir. 2010) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)).

IV. DISCUSSION

A. Plaintiff’s Attorney’s Declaration

Defendants argue that in determining their motion for summary judgment, the Court

should disregard the declaration by Plaintiff’s attorney, Joseph F. Castiglione, on the ground that

it contains improper factual and legal arguments. (Dkt. No. 86, at 11–14). Defendants further

argue that the Court should disregard the more than one thousand pages of exhibits attached to

Castiglione’s declaration because they consist of “inadmissible and irrelevant” documents. (Id. at

11). Plaintiff contends that his attorney’s declaration is proper and that Defendants’ arguments

should be rejected.12 (See generally, Dkt. No. 88).

In his seventy-five page declaration, Castiglione outlines his “involvement” with Plaintiff

as “the primary attorney” since “the outset of the underlying matters at issue,” in 2018. (Dkt. No.

83-1, ¶ 3). To “demonstrate to the Court that [he has] extensive personal knowledge of this

matter, including based [on his] in depth and extensive familiarity with testimony from the

various witnesses as well as the numerous emails, agreements, union matters and related

information concerning Dr. Alaei’s claims,” Castiglione outlines the efforts he undertook to

familiarize himself with the evidence in this case, preparation of materials, attendance of

12 Plaintiff requests oral argument to allow the parties “to better edify the Court as to the significant factual and legal

issues” and in order to address Defendants’ arguments regarding Castiglione’s declaration. (Dkt. Nos, 87, at 1; Dkt.

No. 88, at 2). Alternatively, Plaintiff requests that the Court allow his “limited sur-reply” set forth in his April 17,

2024, letter motion. (Dkt. No. 88, at 1). As the Court has considered Plaintiff’s “sur-reply” and otherwise finds oral

argument unnecessary, Plaintiff’s requests for oral argument are denied.

meetings with SUNY Albany personnel during the events leading to Plaintiff’s termination, his

representation of Plaintiff in the state lawsuit through trial and appeal. (Dkt. No. 83-1, ¶¶ 1–25)

(emphasis added).

Rule 56(c) states that: “An affidavit or declaration used to support or oppose a motion

must be made on personal knowledge, set out facts that would be admissible in evidence, and

show that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P.

56(c)(4). At the same time, it is “well established that an attorney’s affidavit can be used, in

connection with a summary judgment motion, to place documents produced in discovery before

the Court.” Pace v. Air & Liquid Sys. Corp., 171 F. Supp. 3d 254, 272 (S.D.N.Y. 2016) (quoting

Harrison-Hoge Indus., Inc. v. Panther Martin S.R.L., No. 05-cv-2851, 2008 WL 905892, at *27,

2008 U.S. Dist. LEXIS 25480, at *80 (E.D.N.Y. Mar. 31, 2008)).

“A court may therefore strike portions of an affidavit that are not based upon the affiant’s

personal knowledge, contain inadmissible hearsay or make generalized and conclusory

statements.” Hollander v. Am. Cyanamid Co., 172 F.3d 192, 198 (2d Cir. 1999), abrogated on

other grounds, Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000). “Alternatively, a

court may, in considering a motion for summary judgment, simply decline to consider those

aspects of a supporting affidavit that do not appear to be based on personal knowledge or are

otherwise inadmissible.” Doe v. Nat’l Bd. of Podiatric Med. Exam’rs, No. 03–cv–4034, 2004

WL 912599, at *4, 2004 U.S. Dist. LEXIS 7409, at *11 (S.D.N.Y. Apr. 29, 2004) (collecting

cases). The Court follows the latter approach here, and considers only those aspects of

Castiglione’s declaration that appear to be based on personal knowledge. See, e.g., Pace, 171 F.

Supp. 3d at 272 (explaining that “the Court is capable of discerning from that affirmation what

statements were made on the basis of [attorney’s] firsthand knowledge; what statements are

summaries of evidence in the record; and what documents the Court should review in

determining the accuracy of those summaries”).13

B. Title IX Claim

Defendants move for summary judgment dismissing Plaintiff’s claim that SUNY Albany

subjected Plaintiff to discipline because of his gender on the grounds that SUNY Albany had a

legitimate, nondiscriminatory reason for its termination and “non-renewal” of Plaintiff’s

employment and Plaintiff has failed to identify evidence of gender bias.14 (Dkt. No. 75-32, at

12–15). Plaintiff opposes Defendants’ motion. (Dkt. No. 83, at 17–20).

Title IX provides, with certain exceptions not relevant here: “No person in the United

States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or

be subjected to discrimination under any education program or activity receiving Federal

financial assistance.” 20 U.S.C. § 1681(a). “Because Title VII’s discrimination prohibition

13 Defendants note that Castiglione’s “declaration seems to implicate counsel as a witness in this matter” and suggest

that “counsel may have independent knowledge concerning the allegations at issue in this case that would

necessitate him being called as a witness at any potential trial.” (Dkt. No. 86, at 11 n.10). As Defendants do not

request any relief in connection with this issue, the Court does not address it further at this juncture. Cf., Murray v.

Metro. Life Ins. Co., 583 F.3d 173, 178 (2d Cir. 2009) (explaining that “‘[b]ecause courts must guard against the

tactical use of motions to disqualify counsel, they are subject to fairly strict scrutiny, particularly motions’ under”

“the witness-advocate rule set out in Rule 3.7 of the New York Rules of Professional Conduct” (quoting Lamborn v.

Dittmer, 873 F.2d 522, 531 (2d Cir. 1989)).

14 Defendants advance two additional arguments with respect to Plaintiff’s Title IX claim. First, Defendants assert

that to the extent Plaintiff asserts claims of racial or religious discrimination under Title IX, such claims fail as a

matter of law. (Dkt. No. 75-32, at 11). Second, Defendants assert that because Title IX does not provide for

individual liability, to the extent Plaintiff seeks to hold President Rodriguez, Provost Stellar, and Szelest liable, his

claim fails as a matter of law. (Id. at 11–12). Plaintiff has not responded to either argument. As “Title IX prohibits

sex discrimination by recipients of federal education funding,” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167,

173 (2005), any claim of racial or religious discrimination thereunder is dismissed, see Mason v. Antioch Univ., No.

15-cv-5841, 2016 WL 2636257, at *4 n.3, 2016 U.S. Dist. LEXIS 60378, at *11–12 n.3 (E.D.N.Y. May 5, 2016 )

(noting that the plaintiffs’ complaint alleging, inter alia racial and religious discrimination “does not state a claim for

relief under Title IX because plaintiffs do not allege therein that defendants discriminated . . . on the basis of

. . . gender”). Further, “Title IX ‘has consistently been interpreted as not authorizing suit against school officials,

teachers, and other individuals.’” Doe v. Haas, 427 F. Supp. 3d 336, 355 (E.D.N.Y. 2019) (quoting Fitzgerald v.

Barnstable Sch. Comm., 555 U.S. 246, 257 (2009)). Thus, to the extent Plaintiff asserts a Title IX claim against the

individual defendants, any such claim is dismissed.

overlaps Title IX’s prohibition against sex discrimination in education programs, and because

employment discrimination claims often have much in common with claims under Title IX,”

courts in the Second Circuit “have . . . long interpreted Title IX ‘by looking to . . . the caselaw

interpreting Title VII.”’ Vengalattore v. Cornell Univ., 36 F.4th 87, 103 (2d Cir. 2022) (quoting

Menaker v. Hofstra Univ., 935 F.3d 20, 31 (2d Cir. 2019)). “Thus, Title VII’s burden-shifting

framework generally guides [a court’s] analysis of claims brought under Title IX.” Radwan v.

Manuel, 55 F.4th 101, 130 (2d Cir. 2022).

First, the plaintiff must establish a prima facie case of discrimination. St. Mary’s Honor

Ctr. v. Hicks, 509 U.S. 502, 506 (1993); Radwan, 55 F.4th at 130. “The requirements to establish

a prima facie case are ‘minimal,’ and a plaintiff’s burden is therefore ‘not onerous.’” Bucalo v.

Shelter Island Union Free Sch. Dist., 691 F.3d 119, 128 (2d Cir. 2012) (citation omitted) (first

quoting St. Mary’s, 509 U.S. at 506 (1993); then quoting Tex. Dep’t of Cmty. Affs. v. Burdine,

450 U.S. 248, 253 (1981)). The establishment of a prima facie case creates a presumption that

the employer unlawfully discriminated against the plaintiff. St. Mary’s, 509 U.S. at 506. The

burden then shifts to the defendant, who must articulate a legitimate, nondiscriminatory reason

for its actions. Id. at 507. If the defendant carries that burden, the presumption of discrimination

“drops from the picture,” and the burden shifts back to the plaintiff, who must “come forward

with evidence that the defendant’s proffered, non-discriminatory reason is a mere pretext for

actual discrimination.” Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000); see also

Kwan v. Andalex Grp., LLC, 737 F.3d 834, 845 (2d Cir. 2013). “The plaintiff must produce . . .

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, 224 F.3d at 42 (alterations in original)

(internal quotation marks omitted).15

1. Prima Facie Case

To establish a prima facie case of gender discrimination under Title IX, a plaintiff must

show that: (1) he is a member of a protected class, (2) he was qualified for position, (3) he

suffered an adverse action, and (4) “the facts imply a discriminatory intent.” Radwan, 55 F.4th at

130; Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010). The fourth factor of this test

may be satisfied “through direct evidence of intent to discriminate, or by indirectly showing

circumstances giving rise to an inference of discrimination.” Vega v. Hempstead Union Free Sch.

Dist., 801 F.3d 72, 87 (2d Cir. 2015) (citation omitted).

Defendants appear to assume, for purposes of summary judgment, that Plaintiff can

establish a prima facie showing of gender discrimination. (Dkt. No. 75-32, at 12 (“While

Defendants do not concede that Plaintiff can establish a prima facie showing of gender

discrimination, Defendants will begin with the second step of the analysis for purposes of

efficiency.”)). The Court will do likewise.

2. Legitimate, Nondiscriminatory Reason

Defendants provide the following reason for the non-renewal of Plaintiff’s employment:

“Over the course of the investigation, multiple unsettling allegations were uncovered that gave

SUNY Albany . . . great concern for the safety of students, and the integrity of SUNY Albany

15 The Second Circuit has not yet decided whether a Title IX must satisfy the “but-for” causation standard. See

Radwan, 55 F.4th at 131 (observing that the Supreme Court has found discrimination claims under 42 U.S.C. § 1981

and retaliation claims under Title VII “require[] proof of but-for causation” but that it has not yet “revisited this

issue under Title IX in the wake of this Supreme Court precedent”). Even assuming the “but-for” standard applies

here, the Court would conclude, for the reasons stated below, that Plaintiff’s proof is sufficient under the higher

standard.

and its programs, if Plaintiff were to continue to be employed at SUNY Albany.” (Dkt. No. 75-

32, at 13). The need to protect the safety of students is a legitimate, nondiscriminatory reason for

renewal. See, e.g., Bryant v. S. Country Cent. Sch. Dist., No. 14-cv-5621, 2017 WL 1216553, at

*15, 2017 U.S. Dist. LEXIS 49651, at *41 (E.D.N.Y. Mar. 31, 2017) (concluding the

defendant’s proffered reason for adverse action, namely the “need to ensure the safety of all

employees pending further investigat[ion] of that Complaint,” satisfied its burden-shifting

obligation).

3. Pretext

Plaintiff argues that he has adduced sufficient evidence from which a reasonable

factfinder could find Defendants’ reason for his non-renewal and termination was a pretext for

gender-based discrimination. See Weinstock, 224 F.3d at 42 (“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.”). Here, Plaintiff has presented

evidence from which a reasonable factfinder could conclude that SUNY Albany used its

“unfounded” determination as a pretext for circumventing the CBA’s disciplinary procedures,

enabling it to summarily terminate and non-renew Plaintiff’s employment in order to avoid the

potential adverse reaction by female students to Plaintiff’s return to campus.

In the Title IX context, the Second Circuit has observed that one way a plaintiff may raise

an inference of bias is to show that the university has disregarded the procedural protections it

has promised its employees. See Menaker, 935 F.3dat 33 ([O]nce a university has promised

procedural protections to employees, the disregard or abuse of those procedures may raise an

inference of bias.”). Here, Plaintiff has presented evidence that during the August 9, 2018,

counseling session, Stark and Selchick told Plaintiff that the sexual misconduct and other

allegations were unfounded and that he was “good to go back to work,” but that when Plaintiff

reported for work the next day, they terminated his employment and advised him that his term

would not be renewed. (Dkt. No. 83-3, at 141–43, 994). Article 19 of the CBA provides that (1)

“[d]iscipline shall be imposed only for just cause,” (2) that the employee is entitled to detailed

notice of the conduct for which discipline is to be imposed and of the proposed penalty, and (3)

that penalty may not be imposed until after, inter alia, the employee has had the opportunity to

file a disciplinary grievance or appealed to arbitration. (Dkt. No. 75-9, at 20 (§ 19.4.a.–b.)).

Viewing the evidence in the light most favorable to Plaintiff, a factfinder could reasonably

conclude that the termination of Plaintiff’s term appointment was a disciplinary action,16 and

could infer gender-related bias from SUNY Albany’s imposition of the penalty of termination

without providing detailed notice of the alleged wrongful conduct, or the opportunity to

challenge the proposed penalty. See Radwan, 55 F.4th at 140 (finding sufficient evidence of

pretext and gender discrimination on Title IX claim based on, inter alia, purported procedural

irregularities, including the university’s failure to refer the plaintiff’s case to the student

disciplinary authority or to give the plaintiff the opportunity to contest the violation or penalty

imposed “before a neutral decisionmaker,” noting that although the university argued none of the

procedural issues showed pretext or undermined its misconduct determination, such issues were

“fact-specific” and could not be resolved on summary judgment); see also Menaker, 935 F.3d at

34 (finding, on motion to dismiss, allegations that the plaintiff was terminated despite the fact

that university official “knew that at least one of the accusations” against the plaintiff was false,

that university official failed to provide investigation report after promising to do so, that the

university disregarded the process provided for in its harassment policy by failing to provide

16 While the CBA states that the provisions of Article 19 “do not apply to non-renewal of term appointments,” it

does not appear to exempt the termination of term appointments from the “just cause” requirement. (Dkt. No. 75-9,

at 20 (§ 19.3)).

opportunity to submit a written response or “written determination of reasonable cause”

sufficient to allow inference of bias). Given the decisions to terminate and not renew Plaintiff’s

term appointment were made together, a factfinder could likewise conclude that SUNY Albany’s

non-renewal decision was motivated by discriminatory bias.

Further, based on President Rodriguez’s testimony that he had decided that it was better

for SUNY Albany to terminate and non-renew Plaintiff’s appointment based on the allegations,

including the allegations of sexual misconduct, (Dkt. No. 75-7, at 29–30; see also Dkt. No. 75-8,

at 84–85 (Selchick testifying that “the university had decided that . . . this area was . . . fraught

with issues, that there were . . . student concerns, Title IX issues,” and that “at the end of the day

the university felt that it would be best to part ways with Dr. Alaei”); id. at 96 (Selchick

testifying that Botticelli concluded that regardless of the validity of the allegations, female

students would have “such an adverse reaction” to Plaintiff’s return to campus that “it would be

institutionally . . . problematic”)), a factfinder could conclude that SUNY Albany used its

“unfounded” determination as a pretext for circumventing procedural protections and his

termination and non-renewal was a discriminatory adjudication of the sexual misconduct

complaint against him. See, e.g., Menaker, 935 F.3d at 36 (rejecting as absurd the university’s

argument that the plaintiff had “no right to the [harassment] Policy’s procedural protections

because he was found not guilty of the accusations,” noting that the “Policy applies—regardless

of how the University chooses to characterize its ultimate findings,” and explaining that because

“[p]rocedural protections safeguard the rights of the accused during the investigative and

adjudicative process[,] [o]ne cannot . . . wait until after that process has concluded to determine

(based on its result) whether these protections apply”) (emphasis added).

Finally, although SUNY Albany contends that its concern for students, the “Title IX

issues,” and interest in avoiding an adverse reaction by female students to Plaintiff’s return to

campus were “lawful motivations” for its determination to terminate and non-renew Plaintiff, a

factfinder could conclude that such motivations reflect an impermissible bias favoring female

students. In Doe v. Columbia University, the Second Circuit explained that:

A defendant is not excused from liability for discrimination because

the discriminatory motivation does not result from a discriminatory

heart, but rather from a desire to avoid practical disadvantages that

might result from unbiased action. A covered university that adopts,

even temporarily, a policy of bias favoring one sex over the other in

a disciplinary dispute, doing so in order to avoid liability or bad

publicity, has practiced sex discrimination, notwithstanding that the

motive for the discrimination did not come from ingrained or

permanent bias against that particular sex.

831 F.3d 46, 58 n.11 (2d Cir. 2016). Thus, viewing the facts in the light most favorable to

Plaintiff, a factfinder could reasonably infer that in deciding to “part ways” with Plaintiff despite

the lack of evidence to sustain a disciplinary action, SUNY Albany was impermissibly motivated

by its concern regarding the reaction by its female students to the return of Plaintiff, a male

professor against whom allegations of sexual misconduct had been made. See Simons v. Yale

Univ., No. 19-cv-1547, 2024 WL 182208, at *12, 2024 U.S. Dist. LEXIS 8309, at *31 (D. Conn.

Jan. 17, 2024) (finding factual question as to whether the university was motivated “by

discriminatory animus against men” where, after the plaintiff completed formal sanction for

sexual harassment (suspension and salary reduction), the university, in response “to the negative

sentiment within the [university] community,” rescinded the plaintiff’s professorship, explaining

that “if the University treated Plaintiff differently because of his sex, even if such treatment

resulted from a desire to avoid unpleasantries which would have followed unbiased treatment,

that treatment still is discrimination”). Accordingly, Defendants’ motion for summary judgment

is denied.

C. Fourteenth Amendment Claims

Defendants move for summary judgment dismissing Plaintiff’s Fourteenth Amendment

substantive and procedural due process claims as well as Plaintiff’s equal protection claim. (Dkt.

No. 75-32, at 15–29). Plaintiff has not responded to Defendants’ arguments regarding

substantive due process,17 but specifically opposes summary judgment with respect to his

procedural due process and equal protection claims. (Dkt. No. 83, at 20–36).

1. Procedural Due Process

Defendants argue that they are entitled to summary judgment with respect to Plaintiff’s

claim that in terminating and non-renewing his employment, Defendants violated Plaintiff’s right

to procedural due process. (Dkt. No. 75-32, at 16–18). Plaintiff opposes Defendants’ motion.

(Dkt. No. 83, at 21–31).

The Due Process Clause of the Fourteenth Amendment provides that a State may not

“deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend.

XIV, § 1. The “two threshold questions” in any procedural due process claim are (1) whether the

plaintiff “possessed a liberty or property interest protected by the United States Constitution or

federal statutes” and (2) “if so, what process was due before the plaintiff could be deprived of

that interest.” Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995) (citations omitted).

17 The failure to oppose a motion for summary judgment on a certain claim is deemed abandonment of the claim.

E.g., Feacher v. Intercontinental Hotels Grp., 563 F. Supp. 2d 389, 399 (N.D.N.Y. 2008). In any event summary

judgment is warranted. The Complaint does not specify the basis for, or the individual Defendants whom, Plaintiff

claims violated his substantive due process rights. (Dkt. No. 1, ¶¶ 255–67). And Plaintiff fails to identify evidence in

the record showing that any Defendant engaged in conduct that shocked the conscience. See, e.g., Murphy v.

Hughson, 82 F.4th 177, 189 (2d Cir. 2023) (explaining that “[t]o defeat summary judgment, [the plaintiff] was

required to present evidence that a reasonable jury could find that [the defendant’s] actions shocked the

conscience.”).

Plaintiff argues that he had a property interest in his Associate Professor and Lecturer

position and that SUNY Albany could not discipline him by placing him on alternative

assignment, terminating his position prior to the end of his term on August 9, 2019, or non-

renewing his term appointment without just cause. (Dkt. No. 83, at 21–31). “Property interests

are not created by the Constitution; rather, ‘they are created and their dimensions are defined by

existing rules or understandings that stem from an independent source such as state law-rules or

understandings that secure certain benefits and that support claims of entitlement to those

benefits.’” Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 313 (2d Cir. 2002) (quoting Bd. of

Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)). To establish a property interest, “a

person clearly must have more than an abstract need or desire for it;” instead, he must “have a

legitimate claim of entitlement to it.” Roth, 408 U.S. at 577. “Property interests under the Due

Process Clause are ‘created and their dimensions are defined by existing rules or understandings

that stem from an independent source such as state law,’” Harhay v. Town of Ellington Bd. of

Educ., 323 F.3d 206, 212 (2d Cir. 2003) (quoting Roth, 408 U.S. at 577), contract, or collective

bargaining agreement, see Ciambriello, 292 F.3d at 314 (“We have repeatedly recognized that a

collective bargaining agreement may give rise to a property interest in continued employment.”);

see also Harhay, 323 F.3d at 212 (determining “whether a contractual right can be characterized

as a constitutionally protected property interest,” requires a court to look “‘to whether the interest

involved would be protected under state law and must weigh the ‘importance to the holder of the

right.’” (quoting Ezekwo v. NYC Health & Hosps. Corp., 940 F.2d 775, 783 (2d Cir. 1991)). For

example, “[a] public employee has a property interest in continued employment if the employee

is guaranteed continued employment absent ‘just cause’ for discharge.” Ciambriello, 292 F.3d at

313 (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)).

Here, in arguing that Plaintiff has failed to show a property interest in renewal of his term

appointment, Defendants rely heavily on the general proposition that where the terms of an

employee’s appointment secures no interest in re-employment following the expiration of the

term, the employee lacks a protectable property interest in continued employment. Roth, 408

U.S. at 578; see Williams v. Woodhull Med. & Mental Health Ctr., 891 F. Supp. 2d 301, 331

(E.D.N.Y. 2012) (explaining that a “public employee lacks a protected property interest in

reappointment where neither the terms of the original appointment nor any state statute, rule, or

policy secures an interest in reappointment for the next year”); see also Looney v. Black, 702

F.3d 701, 706 (2d Cir. 2012) (explaining that “[a] ‘unilateral expectation’ is not sufficient to

establish a constitutionally protected property right” and that “a plaintiff must have ‘a legitimate

claim of entitlement to’ the alleged property interest” (quoting Roth, 408 U.S. at 577)). However

relevant Defendants’ argument may be to the issue of whether Plaintiff had a property interest in

the renewal of his term appointment (addressed below), Defendants do not cite any caselaw

showing that such principles apply to Plaintiff’s claim that he had a protectable property interest

in employment for his renewed term—August 10, 2018 to August 9, 2019, in which he had more

than a “unilateral expectation” of continuing employment. Roth, 408 U.S. at 577.

The parties cite to the Appointment Letter(s), the CBA, and the Policies. (See, e.g., Dkt.

No. 75-32, at 18; Dkt. No. 83, at 25). As relevant here, the April 16, 2014, Appointment Letter

states that Plaintiff’s initial appointment will be for three years, that the title is “a non-tenure-

track” position in accordance with the Policies, and that “the appointment will be reviewed

annually for possible extension by another year.” (Dkt. No. 83-3, at 985). SUNY Albany

renewed Plaintiff’s term appointment twice more: first, “for the period beginning May 1, 2017

and ending April 30, 2018”; and again, “for the period beginning May 1, 2018 and ending April

30, 2019.” (Id. at 990–91). On August 10, 2018, SUNY Albany renewed Plaintiff’s term

appointment for the term beginning August 10, 2018 and ending August 9, 2019. (Dkt. No. 75-

13, at 2). SUNY Albany’s August 10 2018, letter renewing Plaintiff’s Lecturer term appointment

therefore gave Plaintiff an expectation in employment until the end of that term, on August 9,

2019. See Roth, 408 U.S. at 577 (explaining that property interests “are created and their

dimensions are defined by existing rules or understandings that stem from an independent source

such as state law-rules or understandings that secure certain benefits and that support claims of

entitlement to those benefits”). Moreover, the CBA states that “[d]iscipline shall only be

imposed for just cause.” (Dkt. No. 83-3, at 617). In Ciambriello, the Second Circuit “read the

word ‘discipline’” as used in the collective bargaining agreement at issue “more broadly to

include any dismissal or demotion, regardless of the . . . stated reason for the adverse

employment action.” 292 F.3d at 316. Thus, a reasonable factfinder could conclude that Plaintiff

had a property interest in his one-year term appointment from August 10, 2018 to August 9,

2019, and reading the definition of discipline in the collective bargaining agreement broadly, that

SUNY Albany could not terminate his employment before the end of that term without just

cause. Id.

However, it is undisputed that SUNY Albany paid Plaintiff his salary for the entire term.

It is well-settled that “‘[a]n employee who is on leave and receiving [her] normal salary’ is not

‘deprived of a property right merely b[y] virtue of being relieved of [her] job duties.” Knights v.

City Univ. of New York, 639 F. Supp. 3d 395, 400 (E.D.N.Y. 2022) (quoting MacFall v. City of

Rochester, 495 F. App’x 158, 160 (2d Cir. 2012)); see also Henneberger v. Cnty. of Nassau, 465

F. Supp. 2d 176, 193 (E.D.N.Y. 2006) (“The Court finds that the denial of additional benefits

allegedly due to plaintiffs under the CBA does not constitute the kind of deprivation that may

give rise to a due process claim in the Second Circuit.”); MacFall, 746 F. Supp. 2d at 484–85

(“[D]ue process claims based on the loss of such additional pay or benefits, beyond an

employee’s base pay, have routinely been rejected by the courts.”), aff’d, 495 F. App’x 158 (2d

Cir. 2012). Plaintiff therefore has failed to raise a material issue of fact as to any denial of a

property interest for the time period of August 10, 2018 to August 9, 2019.18 Accordingly, the

Court next considers whether Plaintiff has adduced evidence of a property interest in the renewal

of his term employment or continued employment beyond the August 9, 2019, expiration of his

term appointment.

The April 16, 2014, Appointment Letter promised Plaintiff employment from May 1,

2014 to on or about May 1, 2017, and that “the appointment will be reviewed annually for

possible extension by another year.” (Dkt. No. 75-10, at 2).19 The CBA provides that

“[a]ppointments of employees shall be made in accordance with Article XI of the Policies.” (Dkt.

No. 75-9, at 40 (§ 30.1)). Article XI of the Policies provides that “a term appointment shall be an

appointment for a specified period of not more than three years which shall automatically expire

at the end of that period unless terminated earlier because of resignation, retirement, or

termination” and that “term appointments may be renewed . . . for successive periods of not more

than three years each.” (Dkt. No. 75-15, at 34 (Article XI, Title D, §§ 1, 4)). The Policies further

18 For the same reason, to the extent Plaintiff argues placement on alternative assignment violated his procedural due

process rights, throughout which he continued to work and was paid the same salary, his claim fails.

19 In a footnote in his brief, Plaintiff asserts that the April 16, 2014 Appointment Letter’s reference to an annual

review providing “at least two years of continued employment” was “an ‘Evergreen Appointment’”—a term

Plaintiff does not define—which entitled him to “two years of continued employment as of August 2018,” i.e., to

August 2020. (Dkt. No. 83, at 14 n.5). However, Plaintiff acknowledges that in his New York State Court of Claims

lawsuit, the court “determined that Dr. Alaei was not entitled to two years under his Appointment Letter,” and

Plaintiff does not press the issue further in this case. (Id.). He states that he was “entitled to at least one more year of

employment as of August 2018,” which SUNY Albany admitted when it “paid him for one more year of salary.” (Id.

at 24). The Court, accordingly, does not address any issue regarding the reference to two years in the 2014

Appointment Letter.

state: “No term appointment, of itself, shall be deemed to create any manner of legal right,

interest or expectancy in any other appointment or renewal.” (Id. at 35 (Article XI, Title D, § 4)).

Thus, while the CBA and Policies define term appointments and allow for the possibility of

renewal, they say nothing from which Plaintiff could infer an expectation of renewal, and, in

fact, the Policies explicitly state that a term appointment, in itself, “shall not be deemed” to

create an expectation of continued employment. See Looney, 702 F.3d at 709 (finding, on motion

to dismiss, that the plaintiff, who had been appointed for a four-year term, failed to allege a

property interest where “the Employee Handbook, the town’s Charter, and the CBA” defined

“‘full time’ employment” and addressed “whether an employee could expect to receive . . .

benefits,” but did not “affirmatively indicate[]” that the plaintiff “could expect to continue being

a full-time employee”).

Plaintiff, however, seems to argue that it is a different provision in the Policies, the

provision governing the evaluation of academic employees, when read together with his April

16, 2014 Appointment Letter, which, he asserts, contained “the right to have an annual

evaluation for extending his term appointment,” that gave him a property interest in renewal.

(Dkt. No. 83, at 26). Article XII of the Policies, “Evaluation and Promotion of Academic and

Professional Employees,” provides that during an evaluation of academic employees, criteria

such as “[m]astery of subject matter,” “[e]ffectiveness in teaching,” and “[s]cholarly ability,” are

to be considered, (Dkt. No. 75-15, at 59–60 (Article XII, Title A, § 4 (a)–(e))). Although not

clearly articulated, it appears that Plaintiff is arguing that the criteria to be considered during an

evaluation set the terms for renewal, and give rise to an inference or expectation of a term

renewal unless the relevant criteria are unmet. The Court disagrees. First, the April 2014

Appointment Letter refers to an annual “review[]” and does not mention “evaluation.” (Dkt. No.

83-3, at 592). Second, the Policies specify that the “[p]urpose” of the “evaluation of academic

employees” “shall be the appraisal of the extent to which each academic employee has met his or

her professional obligation” and that the use of an evaluation with respect to the renewal of term

appointments is discretionary. (Dkt. No. 75-15, at 59 (Article XII, Title A, § 2 (explaining that an

evaluation “may be considered in making decision or recommendations with respect to

. . . renewal of term appointments . . . and for any other purpose where an academic employee’s

performance may be a relevant consideration” but that “[n]othing contained herein shall prevent

the chief administrative officer from taking such action as” he or she may “deem appropriate to

the operating requirements of the college”))) (emphasis added). Thus, the Court finds no basis

for concluding that the evaluation provisions of the Policies gave Plaintiff an expectation or

property interest in the renewal of his appointment.

Nor has Plaintiff presented any evidence that Defendants, or any other individual at

SUNY Albany, provided any guarantee or explicit indication that Plaintiff should expect renewal

of his term appointment following any of his previous renewals. In Looney, the plaintiff, who

had served four, four-year terms as a “building official,” but was not reappointed after he filed a

lawsuit alleging, inter alia, that the defendants violated his First Amendment rights, claimed that

the defendants violated his procedural due process rights when they declined to reappoint him to

another term. 702 F.3d at 706–10. The Second Circuit found that neither state law nor, among

other documents, the CBA or the plaintiff’s final notice of reappointment (which guaranteed only

an “additional four years”), provided any indication that the plaintiff could expect reappointment.

Id. at 709. The Circuit therefore concluded that “[t]he complaint’s allegations, without any

written or spoken guarantee as to the terms of his employment, leave Looney with nothing more

than a ‘unilateral expectation’ that he would continue to be reappointed to his position,” and that

“[s]uch a unilateral expectation does not qualify as a constitutionally protected property right.”

Id. In reaching this conclusion, the Circuit distinguished Harhay, Ciambriello,20 and Ezekwo,

where the plaintiffs “had been promised something explicitly—either verbally or in terms of the

applicable collective bargaining agreement—about specific conditions during the future term of

their employment.” Id. at 708 (emphasis added). The Circuit explained that in Harhay, the CBA

at issue “provided the plaintiff a ‘contractual right . . . to be reappointed to any vacant position

for which she was qualified,’” and that it had therefore “determined that it was ‘clear’ that the

plaintiff, a tenured school teacher, had a constitutionally protected property right in being

reappointed,” Looney, 702 F.3d at 708 (quoting Harhay, 323 F.3d at 212); that in Ciambriello,

the plaintiff “was working pursuant to a collective bargaining agreement that stated he would not

be demoted without engaging in incompetence or misconduct,” Looney, 702 F.3d at 708 (quoting

Ciambriello, 292 F.3d at 319); and that in Ezekwo, the plaintiff “was told both in writing and in

person that she could expect to be chief resident during her third year of residency.” Looney, 702

F.3d at 708 (quoting Ezekwo, 940 F.2d at 782).

Here, there is no evidence that Plaintiff was told in person or in writing, at any point, that

he could expect renewal of his term appointment. See Knights, 639 F. Supp. 3d at 401 (finding

that the plaintiff failed to identify a “property interest in continued employment outside of being

able to finish his extended substitute appointment,” explaining that “a ‘mere subjective

expectancy’ of re-employment is not protected by procedural due process; [the plaintiff] must

20 In his briefing, Plaintiff’s relies extensively on Ciambriello, arguing it is analogous. (Dkt. No. 83, at 21–24).

Although the CBA in Ciambriello, like the CBA in this case, contains a “just cause” requirement for discipline, in

Ciambriello, the plaintiff, having served in the position to which he was promoted “in excess of the CBA’s twenty-

six week trial period,” was, at the time of his demotion “entitled to the protection” of the “just cause” provision.

Ciambriello, 292 F.3d at 316. Here, there is evidence that while Plaintiff was entitled to the protection of the “just

cause” provision for the duration of his term, i.e., until August 9, 2019, there is no evidence that he was entitled to

the provision’s protection in connection with any future employment or renewal.

show he was entitled to it under ‘the policies and practices of the institution.’” (quoting Perry v.

Sindermann, 408 U.S. 593, 603 (1972)); Rehman v. State Univ. of N.Y. at Stony Brook, 596 F.

Supp. 2d 643, 657 (E.D.N.Y. 2009) (granting motion to dismiss procedural due process claim,

finding “the plaintiff’s employment was dictated by the appointment letter” to position as

professor, “which by its express terms was a [one-year] term appointment” and that “[a] the

plaintiff’s term was renewed . . . he had no right to renewal or a constitutionally protected

property interest in his expectation of renewal” and identified “no specific SUNY Stony Brook

policy or practice sufficient to create an implied understanding that his contract would be

continually renewed”). Thus, as Plaintiff fails to raise a genuine issue of material fact as to a

property interest in his termination, for which he was paid his full salary through the expiration

of his term, or in the renewal of his term appointment, Defendants’ motion for summary

judgment as to Plaintiff’s Fourteenth Amendment procedural due process claim is granted.21

2. Equal Protection

Defendants move for summary judgment as to Plaintiff’s Fourteenth Amendment equal

protection claim on the grounds that Plaintiff has failed to raise a material issue of fact with

respect to his claims of gender, race, and religion-based, termination and non-renewal of his

employment at SUNY Albany. (Dkt. No. 75-32, at 25–29). Plaintiff opposes Defendants’

motion. (Dkt. No. 83, at 31–36).

In this case, Plaintiff brings his employment-related equal protection claim under the

“class of one” and “selective enforcement” theories of liability. (Id.; see also Dkt. No. 75-32, at

25–29 (Defendants seeking summary judgment arguing Plaintiff fails to raise a material issue of

21 Defendants also seek summary judgment “to the extent the Complaint can be construed to allege any procedural

due process violations pursuant to the ‘stigma plus’ analysis.” (Dkt. No. 75-32, at 21–23). Plaintiff does not respond

to this argument and cites no evidence in support of any such claim.

fact as to “class of one” or “selective enforcement” equal protection claim). However, “the

Supreme Court and the Second Circuit both have held that “class of one” claims do not apply to

public employment. Apatow v. Town of Stratford, 651 F. Supp. 3d 573, 585 (D. Conn. 2023)

(citing Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 607 (2008) (“[T]he class-of-one theory of

equal protection has no application in the public employment context”); Appel v. Spiridon, 531

F.3d 138, 141 (2d Cir. 2008)). Further, in the Second Circuit, there is a question as to whether

selective enforcement claims are still viable in the public employment context, see Hu v. City of

New York, 927 F.3d 81, 100 n.5 (2d Cir. 2019) (“We have not decided whether the Supreme

Court’s decision in Engquist to bar [class of one] claims in the employment context also applies

to malice-based [selective enforcement] claims.”); a question on which district courts are

divided, see Apatow, 651 F. Supp. 3d at 585 (recognizing that “to date, district courts in the

Circuit have reached divergent conclusions”); compare id. (concluding “that Engquist’s

prohibition on ‘class of one’ claims in the public employment context extends to malice-based

selective enforcement claims as well”); with Airday v. City of New York, No. 14-cv-8065, 2020

WL 4015770, at *6, 2020 U.S. Dist. LEXIS 125803, at *15–16 (S.D.N.Y. July 16, 2020)

(allowing selective enforcement public employment claim to proceed). Neither party has briefed

this issue. However, the Court need not resolve this issue because even assuming Plaintiff could

pursue a selective enforcement claim in the public employment context, Plaintiff has not

identified any similarly situated comparators—a necessary element of any selective enforcement

claim.

“The Equal Protection Clause of the Fourteenth Amendment commands that no State

shall deny to any person within its jurisdiction the equal protection of the laws, which is

essentially a direction that all persons similarly situated should be treated alike.” Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (internal quotation marks omitted). To establish

selective enforcement claim under the Equal Protection Clause, the plaintiff must show that:

(1) compared with others similarly situated, [the plaintiff] was selectively treated, and (2) the

selective treatment was motivated by an intention to discriminate on the basis of impermissible

considerations, such as [gender,] race or religion, to punish or inhibit the exercise of

constitutional rights, or by a malicious or bad faith intent to injure the person.” Hu, 927 F.3d at

91 (quoting Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995)); see also Annis v. Cnty.

of Westchester, 136 F.3d 239, 247–48 (2d Cir. 1988) (affirming that gender constitutes an

impermissible consideration).

Defendants assert that Plaintiff has failed “to set forth evidence beyond conclusory and

speculative claims that other unknown individuals were treated differently.” (Dkt. No. 75-32, at

27). In response, Plaintiff asserts that Stark and Selchick testified that, unlike “prior disciplinary

investigations and alternative assignments,” SUNY Albany “treated Dr. Alaei differently .

. . including by” “blocking his email,” “telling him he could not represent himself as an

employee” of SUNY Albany, “supplanting him as Director of GIHHR and replacing him with

new directors,” “seeking to non-renew Dr. Alaei contrary to the usual protocol of having the

employees’ [sic] supervisor support and initiate the non-renewal process,” and “non-renewing

and terminating Dr. Alaei’s employment even though [it] had never done that for another

employee where it was determined that there were no policy violations and no ‘just cause’ to

impose discipline.” (Dkt. No. 83, at 35 (citing Dkt. No. 83-1, ¶¶ 214–23, 226, 265)). However,

none of the record evidence22 Plaintiff cites in support of these assertions contains anything more

22 Indeed, the “evidence” Plaintiff cites in his brief is his attorney’s declaration, which contains summaries and

characterizations of testimony by witnesses during the state court of claims trial.

than general and conclusory statements. (See, e.g., Dkt. No. 83-1, ¶ 216 (Plaintiff’s attorney

asserting that Dr. Kevin Williams, Vice Provost for Academic Affairs, testified during the state

court of claims trial that “generally for non-renewal of faculty without tenure, there is an annual

performance review for the employee that is measured against their workplan,” and “that

generally the employee’s supervisor is responsible for initiating the non-renew process for an

employee,” and that Dr. Williams testified “he never experienced a situation where someone

asked a supervisor” to recommend “non-approval for an employee” (quoting Dkt. No. 83-3, at

213–15)); id. ¶ 223 (asserting that Selchick “testified that “[i]n his experience with Human

Resources . . . it was not typical to seek to non-renew an employee without having the

employee’s supervisor being supportive of the non-renewal process” (quoting Dkt. No. 83-3, at

383–84)).

Further, the evidence Plaintiff cites in support of his assertion that SUNY Albany has

“never” non-renewed or terminated an employee’s employment where there were no policy

violations or “just cause” for discipline found, is his attorney’s summary of Selchick’s testimony,

which does not accurately reflect Selchick’s testimony, (compare Dkt. No. 83-1, ¶ 226

(Plaintiff’s attorney asserting that Selchick testified “that there were no other instances in prior

disciplinary investigations where it was determined not to issue discipline against the employee

but the employee still had his employment non-renewed and bought out”); with Dkt. No. 83-2, at

381–82 (Selchick agreeing in response to counsel’s questioning that “of the five to ten

disciplinary investigations” conducted by Human Resources between January 2018 and

September 2018, there were “no other instances where it was determined not to issue discipline

against the employee, but the employee was still bought out and had his employment not

renewed”), and his attorney’s summary of Stark’s testimony during the Court of Claims trial,

where Stark agreed that during a prior deposition, when asked “After there has been a

determination of no policy violations or determination not to impose discipline, is it common to

terminate the employee?” he responded that “It did not happen while I was at the University of

Albany.” (See Dkt. No. 83-1, ¶ 265 (citing Dkt. No. 83-3, at 335)).

Even setting aside the presentation of such evidence in an attorney’s affidavit, the vague,

generalized testimony by Selchick and Stark is devoid of factual detail and fails to identify any

comparators or indicate whether any individual under investigation was similarly situated in any

respect. Indeed, while the “plaintiff’s and comparator’s circumstances” need not be “identical,”

they “must bear a reasonably close resemblance.” Brown v. Daikin Am. Inc., 756 F.3d 219, 230

(2d Cir. 2014) (internal quotation marks omitted). Here, following discovery, Plaintiff fails to

identify even a single comparator; he provides no evidence that any individual being investigated

by Human Resources or the Title IX office was a professor subject to a term appointment. Thus,

Plaintiff’s selective enforcement claim fails as a matter of law. See Cine SK8, Inc. v. Town of

Henrietta, 507 F.3d 778, 790–91 (2d Cir. 2007) (affirming summary judgment dismissing equal

protection selective enforcement claim, where “following discovery, plaintiffs proffered no

evidence that these businesses were indeed similarly situated in any material way,” noting that

“[g]enerally, whether two entities are similarly situated is a factual issue,” but that “this rule is

not absolute and a court can properly grant summary judgment where it is clear that no

reasonable jury could find the similarly situated prong met”); see also MacPherson v. Town of

Southampton, 738 F. Supp. 2d 353, 371 (E.D.N.Y. 2010) (dismissing complaint where the

plaintiffs failed to “identify any comparators or similarly situated entities at all”); Cassidy v.

Scoppetta, 365 F. Supp. 2d 283, 290–91 (E.D.N.Y. 2005) (finding that the plaintiffs “failed to

allege the most fundamental aspect of an equal protection claim” when they did not compare

themselves to similarly situated individuals). Accordingly, as Plaintiffs “class of one” and

“selective enforcement” claims fail as a matter of law and as Plaintiff has identified no other

theory of liability, Defendants are entitled to summary judgment on Plaintiff’s equal protection

claim.”°

V. CONCLUSION”

For these reasons, it is hereby

ORDERED that Defendants’ motion for summary judgment (Dkt. No. 75) is

GRANTED with respect to Plaintiff's Title IX claims against the individual Defendants only

and GRANTED with respect to Fourteenth Amendment procedural due process, substantive due

process, and equal protection claims; and it is further

ORDERED that that Plaintiff's Title [X claims against the individual Defendants and

Fourteenth Amendment procedural due process, substantive due process, and equal protection

claims are DISMISSED with prejudice; and it is further

ORDERED that Rodriguez, Szelest, and Stellar are DISMISSED as Defendants in this

case; and it is further

ORDERED that Defendants’ motion for summary judgment (Dkt. No. 75) is otherwise

DENIED in its entirety; and it is further

ORDERED that Plaintiff's requests for oral argument, (Dkt. Nos. 87, 88), are DENIED.

IT ISSO ORDERED.

Dated: June 11, 2024 Pron (CQirnnes

Syracuse, New York Chief U.S. District Judge

23 Having granted summary judgment on all of Plaintiffs § 1983 claims, the Court need not reach Defendants’

arguments regarding qualified immunity.

4 Tn opposing Defendants’ motion, Plaintiff urges the Court “to search the record and grant summary judgment to

Dr. Alaei as the non-movant if warranted.” (Dkt. No. 83, at 16) (quotation marks and brackets omitted). The Court

finds no basis for granting summary judgment in Plaintiff’s favor.

38