Gagliardi v. Sacred Heart University

3:17-cv-00857-VAB

2019 | Cited 0 times | D. Connecticut | July 16, 2019

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

PAUL GAGLIARDI, Plaintiff, v. SACRED HEART UNIVERSITY, INC. Defendant.

No. 3:17-cv-857 (VAB)

RULING AND ORDER ON MOTION FOR SUMMARY JUDGMENT , from 2006 to 2016, claims to have been paid significantly less and provided fewer resources than female head coaches. Am. Compl. ¶¶ 16 17, ¶¶ 33 48.

After ultimately being fired, Mr. Gagliardi sued Sacred Heart for gender discrimination under the Equal Pay Act of 1963, 29 U.S.C. § 206(d), et seq.,; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, et seq.; and Title IX of the Education Amendments of 1972, 20 U.S.C. §1681, et seq. Compl., ECF No.1; Am. Compl., ECF No. 7. Defendant now moves for summary judgment. Def. Mot. for Summ. J., ECF No. 30. For the reasons discussed below, Defendants motion for summary judgment, ECF No. 30, is GRANTED. I. FACTUAL AND PROCEDURAL BACKGROUND A. Factual Allegations In the fall of 2006, Mike Guastelle, Sacred senior associate athletic director, director of tennis, and tennis coach, hired Mr. Gagliardi to coach the tennis

team. Partial Tr. of Dep. of Paul Gagliardi (Mar. 16, 2018, ), ECF No. 30-3 at 5. Sacred Heart initially paid Mr. Gagliardi an annual salary of $5,000. Id. at 6. His employment that year and in subsequent years was will. Id.; see, e.g., Robert M. Hardy Letter to Paul Gagliardi (Feb. 3, 2016), ECF No. 30-16 employment at Sacred Heart is employment that is, you have the right to terminate at anytime, and the University has the right to terminate you with or without cause at any (emphasis omitted). Each year, his tennis team had about ten athletes. Gagliardi Dep. at 13. From the start, Mr. Gagliardi viewed the position as full-time position with part-time pay, id. at 5 6, 1

and began asking for a raise and a full-time appointment. Id. at 17. In 2014, Mr. Gagliardi applied for a full-time head coaching job at Fairfield University, but was not selected. Id. at 16. By then, he received an annual salary of $12,500 from Sacred Heart. Paul Gagliardi e-mail to Julia Nofri (May 23, 2014), Def. Mot. for Summ. J., Ex. H, ECF No. 30-10.

In the spring of 2014, Mr. Gagliardi directly raised the issue of his pay and hours with the Human Resources Department. Gagliardi Dep. at 22; Paul Gagliardi e-mail to Julia Nofri (May 23, 2014). A few months later, he received a favorable annual performance review. Gagliardi Dep. at 21 (Q. in each of those categories, he either gave you an or he gave you a 3 or a 4, which signified either solid or performs above expectation, is that accurate? . . . . A. Yes[ Sacred Heart University: Partnering for Performance Summ. (June 20, 2014), Def. Mot. for Summ. J., Ex. I, ECF No. 30-11.

1 Throughout most or all of his time at Sacred Heart, Mr. Gagliardi also worked as the United States Tennis Association Coordinator for Connecticut, Paul W. Gagliardi, Resume, ECF No. 30-4, and taught high school on either a part-time or full-time basis. Gagliardi Dep. at 10.

The next year, Mr. Gagliardi again received a positive performance review (i.e., Supervisor Ratings of in four categories, bove in one category, and an Overall Performance Rating of Performance Sacred Heart University: Partnering for Performance Summ. (July 23, 2015), Def. Mot. for Summ. J., Ex. J, ECF No. 30- 12. In the Comments, Brad Hurlbut, Deputy Director of Athletics, explained to Mr. Gagliardi that his position would be made full-time in the near Gagliardi Dep. at 25. Mr. Hurlburt advised Mr. Gagliardi to the program and be more positive. Sacred Heart University: Partnering for Performance Summ. (July 23, 2015).

In October of 2015, Mr. Gagliardi wrote and delivered by hand a letter to Rob Hardy, Director of Human Resources. Id. at 27. In that letter, Mr. Gagliardi claimed that his pay was lower than it should be because of gender discrimination. Id. By then, he received $13,800 per year. Id. at 32. A few weeks later, Mr. Gagliardi met with Mr. Hardy and reiterated that the female coaches were paid and treated better. Id. at 30; see also id. at 12 (explaining that from 2006 to 2011, Mr. Gagliardi had a volunteer assistant coach, and after that, he had a paid part- time coach, who also worked with the tennis team). In late December of 2015, Mr. Hardy convened a meeting with Mr. Gagliardi, Mr. Hurlbut, and Robert Valentine, the Athletic Director, to discuss Mr. discrimination claims. Id. at 30 31. Around the same time, Mr. Gagliardi also met with Mr. Hurlbut, Mr. Valentine, and Julia Nofri of Human Resources. Id. Several days later, Mr. Gagliardi received a raise; effective January 1, 2016, his annual salary increased to $20,000 and he became eligible to receive part-time employee health, retirement, and tuition assistance benefits. Id. at 32. In late July of 2016, Mr. Gagliardi again wrote to Mr. Hardy about his compensation. Id. at 34. Around the same time, Mr. Gagliardi received a lower performance review than the year

before (i.e., Supervisor Ratings of in two categories, in one category, and an Overall Performance Rating of Improvement Sacred Heart University: Partnering for Performance Summ. (n.d), Def. Mot. for Summ. J., Ex. P Performance , ECF No. 30-18; Pl. Local Rule 56(a)(2) Statement of Facts, Fact 58 summer 2016, Plaintiff refused to sign his 2015 2016 performance review . . . . Response:

That summer, Mr. Gagliardi pursued work outside of Sacred Heart, including running a [non-affiliated] tennis camp at Sacred Heart for four weeks . . . running tennis tournaments on the weekends, and teaching tennis as a self employed tennis Gagliardi Dep. at 35. For one of the weeks of his tennis camp, Mr. Gagliardi had someone else, an assistant director, run the camp because he was vacationing in Cape Cod. Id. at 36 37. In August of 2016, Mr. Gagliardi started a full-time position at Emmett High School in Ansonia. Id. at 41 42. Shortly after starting the job, he sent an e-mail and met with Sacred Heart administrators regarding his coaching hours. Id. at 39 that was the gist of the conversation in terms of if part-time, then going to work part-time hours, and how that was going to play In roughly the first six weeks of the 2016 season, Mr. Gagliardi arrived late to every practice and missed several practices. Id. at 54 55. He did not attend the first day of the three- day UConn Invitational tournament. Id. at 52 53 had just started a new job in teaching. And I want to go into my first couple weeks of teaching and take a sick day or a personal day for another job, considering that information was publicly available on the Sacred Heart website. And so I felt that would not be a good idea. And also I [had] stated in the summertime and in the fall that I was not going to exceed 25 hours of work as a coach. And I felt

as though that if we had, if I went on Friday and on Saturday and on Sunday, which we we make it to Sunday, then I would be way above being part-time. And I made that readily apparent to the admin - - to Mike. And I said you know, going to have to find someone to go to this ; id. at 62 . [I]n the fall of 2016, was there ever a time where you waited to the last minute to tell Mike Guastelle that you were not going to be present for one of the matches? A. Yes. Q. And which one was that? A. The UConn Invitational. I waited until that He missed most of the first day of the Yale Invitational. Id. at 54 (explaining that he had his assistant coach oversee the team from 10:00am to 3:00pm that day). In late September of 2016, Sacred Heart fired Mr. Gagliardi. Id. at 44. Mr. Guastelle assumed his coaching responsibilities for the rest of the season. Id. at 57. In 2017, the head coaching positions for and tennis were consolidated into a single full-time job with a $50,000 salary. Def. Mem. at 15. William Boe Wiegaard serves as the head coach of both teams. Id.

B. Procedural History On February 22, 2017, Mr. Gagliardi received a right to sue letter from the U.S. Equal Employment Opportunity Commission ( EEOC ). U.S. Equal Employment Opportunity Commission Letter to Paul Gagliardi (Feb. 22, 2017), Ex. A, ECF No. 1 at 14.

On May 23, 2017, Mr. Gagliardi sued Sacred Heart for sex discrimination. Compl. On June 15, 2017, Mr. Gagliardi amended his Complaint against Sacred Heart. Am. Compl. On August 14, 2017, Sacred Heart filed its Answer to Mr. Amended Complaint. Answer, ECF No. 11. On December 4, 2017, Sacred Heart moved to compel Mr. Gagliardi to submit a damages

analysis. Def. Mot. to Compel Damage Analysis, ECF No. 19; FED. R. CIV. P. 37; D. CONN. L. CIV. R. 37. Sacred Heart also moved to amend its Answer to add an additional affirmative defense. Def. Mot. to Amend Affirmative Defenses, ECF No. 21; FED. R. CIV. P. 15. On December 5, 2017, the Court denied Sacred motion to compel a damages analysis. Order Denying Mot. Compel Damage Analysis, ECF No. 23. On May 21, 2018, the Court granted Sacred motion to amend its Answer to add an affirmative defense. Order Granting Def. Mot. to Amend Affirmative Defenses, ECF No. 25. On May 22, 2018, Sacred Heart filed an Amended Answer. Am. Answer & Affirmative Defenses, ECF No. 26. On September 14, 2018, Sacred Heart moved for summary judgement on all counts. Mot. for Summ. J., ECF No. 30.

In support of its motion, Sacred Heart submitted the following: (1) a statement of material facts, Local Rule 56(a)(1) Statement, ECF No. 30-1; (2) a memorandum in support of the motion for summary judgement, Mem. of Law in Supp. of Def. Mot. for Summ. J. ECF No. 30-2; and (3) various exhibits, including Mr. Gagliardi resume, excerpts of various deposition transcripts, affidavits, correspondence, both letters and e-mails, and other Sacred Heart documents, including Mr. performance evaluations and time sheets. Def. Mot. for Summ. J., Ex. A U, ECF Nos. 30-3 30-23.

On October 26, 2018, Mr. Gagliardi opposed Sacred motion for summary judgment. Mem. in Opp. to Mot. for Summ. J. , ECF No. 33.

On November 26, 2018, Sacred Heart replied. Reply Mem. of Law in Further Supp. of Mot. for Summ. J. , ECF No. 36.

On July 9, 2019, the Court convened a hearing on the motion to dismiss. Min. Entry, ECF

No. 43. II. STANDARD OF REVIEW

A motion for summary judgment will be granted if the record shows no genuine issue as to any material fact, and the movant is to judgment as a matter of FED. R. CIV. P. 56(a). The moving party bears the initial burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Cartrett, 477 U.S. 317, 323 (1986). The non-moving party may defeat the motion by producing sufficient specific facts to establish that there is a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material Id. at 247 48. The moving party may satisfy this burden by pointing out to the district court an absence of evidence to support the nonmoving case. See PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam).

When a motion for summary judgment is supported by documentary evidence and sworn affidavits and the absence of a genuine issue of material the nonmoving party must do more than vaguely assert the existence of some unspecified disputed material facts or on conclusory allegations or unsubstantiated Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (citation omitted). The party opposing the motion for summary judgment come forward with specific evidence demonstrating the existence of a genuine dispute of material Id.; see also Atkinson v. Rinaldi, 3:15-cv-913 (DJS), 2016 WL 7234087, at *1 (D. Conn. Dec. 14, 2016) (holding nonmoving party must present evidence that would allow reasonable jury to find in his favor to defeat motion for summary judgment).

The court must view any inferences drawn from the facts in the light most favorable to the party opposing the summary judgment motion. Dufort v. City of New York, 874 F.3d 338, 343 (2d Cir. 2017). Conclusory allegations or denials will not be credited. Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011). After drawing all inferences in favor of the non-moving party, if the court finds that no reasonable trier of fact could find in the non- and the moving party is entitled to judgment as a matter of law, the court will grant the summary judgment motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 88 (1986). III. DISCUSSION

A. Equal Pay Act The Equal Pay Act is violated if an employer whose employees are subject to the Fair Labor Standards Act pays wages

at a rate less than the rate at which he pays wages to employees of the opposite sex ... for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions[.] Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 118 (2d Cir. 1997) (quoting 29 U.S.C. § an employee of one gender than to substantially equivalent employees of the opposite gender in similar circumstances id., and serves as the start-point for the statute of limitations. Id. Equal Pay Act claims crual, or three years if the violation is Id. 2

2 A narrow exception exists for continuing violations, but it typically will not permit the recovery of back pay. See Pollis, We believe that Acha not of immediate value, but have determinative effect on the future terms of one s employment, such as work assignments or insulation from layoff. As a consequence, a discriminatory policy that results in a wrongful denial of seniority causes harm not so much at the moment of denial as in the future, and thus only by an award of retroactive seniority can future continuing injury be avoided. A discriminatory pay scale, in contrast, has immediate effect; prospective relief requires nothing more than discontinuance of the unlawful conduct . . . . With this holding, we join

In October 2015, Mr. Gagliardi complained of gender discrimination in a letter to the Director of Human Resources. Gagliardi Dep. at 27; see also Paul Gagliardi Letter to Human Resources (Oct. 20, 2015), Def. Mot. for Summ. J., Ex. K, ECF No. 30-13. On February 22, 2017, Mr. Gagliardi received a right to sue letter for his Equal Pay Act claims from the U.S. Equal Employment Opportunity Commission. U.S. Equal Employment Opportunity Commission Letter to Paul Gagliardi. letter to Human Resources and EEOC Complaint, the Court will construe his Equal Pay Act claims as falling statute of limitations period. See Pollis, 132 F.3d at The statute of limitations requires that such claims be brought promptly to protect the defendant against stale or fabricated claims. . . . Her recovery should have been limited to damages incurred within the three-year

For a violation of the Equal Pay Act, a plaintiff must first establish the elements of a prima facie case of di wages to employees of the opposite sex; ii) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and iii) the jobs are performed under similar working Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999) (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1310 (2d Cir. 1995)); see also McCullough v. Xerox Corporation, No. 12- CV-6405L, 2016 WL 7229134, at *2 (W.D.N.Y. 2016) (noting that three factors must be proven to establish a prima facie claim under the EPA).

three specific and one general catchall

the other circuits to have considered the issue, which have unanimously adopted the reasoning of Bazemore and concluded that back pay cannot be recovered under the Equal Pay Act for salary differentials outside the limitations

provision seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or

Corning Glass Works v. Brennan, 417 U.S. 188, 196 (1974); 29 U.S.C. § 206(d)(1). legitimate business reason for implementing the gender-neutral factor that brought about the

wage differential. Belfi v. Prendergast, 191 F.3d 129, 136 (2d Cir. 1999) (citing Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 526 27 & n.1 (2d Cir.1992).

affirmative defense by producing evidence that the reasons the defendant seeks to advance are actually a pretext for sex discrimination. The appropriate inquiry to determine if the factor put forward is a pretext, is whether the employer has use[d] the factor reasonably in light of the s stated purpose a Belfi, 191 F.3d at 136; see also Chepak v. New York City Health & Hosps. Corp., No. 11-CV-9698 KBF, 2015 WL 509279, at *12 (S.D.N.Y. Feb. 5, 2015), established a prima facie case, summary judgment still would be appropriate because defendant has shown

had a legitimate business reason. Specifically, defendant has put forward evidence that the weekend position that plaintiff ultimately filled was created after a male social worker resigned,

Mr. Gagliardi argues that he was paid significantly less than female head coaches in violation of the Equal Pay Act. Am. Compl. ¶¶ 33 48.

Sacred Heart argues that there are no appropriate comparisons itimate business decision to invest in other sports. Def. Mem. at 21.

The Court agrees. Mr. Gagliardi has failed to establish a prima facie case of unequal pay. See Belfi, 191 F.3d at 135 (To establish a prima facie case under the Equal Pay Act, a plaintiff must demonstrate that he or she .

As Sacred Heart notes, coaching positions are often unique, see Def. Mem. at 21, and courts have been reluctant to find comparator positions across different sports. See Weaver v. Ohio State Univ., 71 F. Supp. 2d 789, 800 (S.D. Ohio 1998), , 194 F.3d 1315 (6th Cir. 1999) [c]ourts . . . have been reluctant to find an equality of

Some courts have permitted comparisons between coaches of the same sport, such as the . Perdue v. City Univ. of New York, 13 F. Supp. 2d 326,

CUNY intentionally discriminated against Perdue on the basis of her gender in violation of Title VII . . . . [and] illustrate[s] ; cf. Harker v. Utica Coll. of Syracuse Univ., 885 F. Supp. 378, 385 (N.D.N.Y. 1995) ( the inequities between herself and other coaches which she allegedly raised at this meeting, s

basketball coach . . . . Additionally, plaintiff could not recall what inequities she discussed with defendant Simpson at this meeting

h, is not an adequate comparator with respect to

salary. As Mr. Gagliardi has acknowledged, Mr. Guastelle then served as the senior associate also served as Id. Finally, Mr. Guastelle is a male

colleague, so his unequal treatment could not support a claim of pay discrimination under the Equal Pay Act on the basis of gender.

Mr. Gagliardi also has failed to demonstrate that his work was comparable to any other female coachs work. Indeed, as his counsel rightly conceded at oral argument, Mr. Gagliardi himself. See Mauze v. CBS Corp., 340 F. Supp. 3d 186, 205 (E.D.N.Y. 2018) Additionally,

Mauze cannot show that she is similarly situated in all material respects to the individuals she identifies as comparators . . . . Indeed, she admits that she was not qualified for the Director of Broadcast Operations roles because she was never [in] broadcast operations and didnt do director of broadcast operations . . . . As a result, we find that there is no genuine dispute of material fact as to whether Mauze was similarly situated to Burroughs and Dimotheris Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)).

In fact, his resume refers to experience with one sport and one sport only: tennis. See Resume of Paul Gagliardi, ECF No. 30-4 (listing various tennis coaching roles from 1996 to the present but no experience coaching in any other sports); see also Mauze, 340 F. Supp. 3d at 205 ( Indeed, she admits that she was not qualified for the Director of Broadcast Operations roles

operations. As a result, there is no genuine issue of material fact as to whether Mr. Gagliardi is performing equal work on jobs requiring equal skill, effort, and responsibility, at least with there is no evidence in this record that he is qualified to coach any of these other sports teams.

Moreover, the record evidence indicates other significant differences between and among the Sacre including bowling, fencing, rugby, and rowing to which Mr. Gagliardi seeks to compare to team. See, e.g., Teams Rosters, Ex. 6 9, ECF No. 33-6 33-9. While the rosters submitted by Mr. Gagliardi 19 season were comparable in size to the teams coached by Mr. Gagliardi (i.e., roughly ten athletes), id.; rowing teams enrolled considerably more student athletes. As a result, Mr. Gagliardi has failed to establish a prima facie case of discrimination under the Act. 29 U.S.C. § 206(d), et seq.

Even if Mr. Gagliardi had met his burden, Sacred Heart has provided a legitimate nondiscriminatory reason , Corning Glass Works, 417 U.S. at 196: Sacred Heart invested tenure at Sacred Heart, the school developed its , see Partial Tr. of Dep. of Def. Mot. for Summ. J., ECF No. 30-5 at 25, and had a nationally recognized . See id. at 18; Partial Tr. of Director entine Def. Mot. for Summ. J., Ex. F, ECF No. 30-8 at 18

with a -- basketball and volleyball teams also performed well. Guastelle Dep. at 18.

As Mr. Gagliardi has acknowledged, Sacred Heart did not invest heavily Gagliardi Dep. at 12 (stating that from 2006 11, Mr. Gagliardi had a volunteer assistant coach see also Sacred Heart University: Partnering for Performance Summ. (July 23, 2014) (in which Brad Hurlbut, Deputy Director of Athletics, wrote to Mr. Gagliardi that made full-time in the near future . . . . [Because Sacred Heart does] not have the resources to do

so unfortunately

And Mr. Gagliardi has not put forth any record evidence suggesting that his pay (and gender) explained or served as the basis for this underinvestment. See Corning Glass Works, 417 U.S. at 196 (1974) (p d on any other factor other than sex Belfi, 191 F.3d at 136 defendant seeks to advance are actually a pretext for sex discrimination. The appropriate inquiry

to determine if the factor put forward is a pretext, is whether the employer has use[d] the factor As a result, failure to invest in is cannot serve as a basis for Equal Pay Act claim, at least on this record. See 29 U.S.C. § 206(d)(1); Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (collecting cases for the proposition that workplace parity laws protect individual plaintiffs).

Accordingly,

B. The Title VII Discrimination Claim Title VII prohibits employers from discriminating on the basis of sex. 42 U.S.C. § 2000e- 2(a)(1). alleged unlawful employment practice occurred. -5; Bogle-Assegai v.

Connecticut, 470 F.3d 498, 506

Assegai did not move for reargument on the ground that the applicable period was 300 days or that there was a work- 3 In October 2015, Mr. Gagliardi alleged gender discrimination in a letter to Human Resources. Gagliardi Dep. at 27; see also Paul Gagliardi Letter to Human Resources. On February 22, 2017, Mr. Gagliardi received a right to sue letter for his Title VII claims. U.S. Equal Employment Opportunity Commission Letter to Paul Gagliardi.

Given these dates, it is unlikely that Mr. Gagliardi timely filed his Title VII claim with the EEOC. 42 U.S.C. § 2000e-5; Bogle-Assegai, 470 F.3d at 506 07 limitations period a Assegai did not move for reargument on the ground that the

applicable period was 300 days or that there was a work- Because the 3

A narrow exception exists for continuing violations, and courts apply the continuing violation doctrine similarly, though not identically, in Title VII and Equal Pay Act cases. See Corp. v. Morgan, 536 U.S. 101, 114 easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a discrete acts. Their very nature involves repeated conduct . . . . Such claims are based on the cumulative effect of Chin v. Port Auth. of New York & New Jersey this sort, which fall outside the limitations period, cannot be brought within it, even when undertaken pursuant to a general policy that results in other discrete acts occurring within the limitations period. This is the conclusion of every circuit to consider the question after Morgan

however, the Court will address

Courts apply a three-step burden shifting framework to claims of employment discrimination. See Roncallo v. Sikorsky Aircraft citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)) McDonnell Douglas analysis, the plaintiff must establish a prima facie case of discrimination by showing that: 1) he [or she] belonged to a protected class; 2) he [or she] was qualified for the position; 3) he [or she] suffered an adverse employment action; and 4) the adverse employment action Id. (internal quotations omitted) (citing Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008)).

Once a plaintiff has established a prima facie case, the burden shifts back to the defendant to demonstrate a valid, non-discriminatory reason for the adverse employment action. Abdu-Brisson v. Delta Air Lines, Inc., 23 [its] burden [of rebutting a prima facie case] if [it] (quoting St Ma , 509 U.S. 502, 509 (1993) and citing Schnabel v.

Abramson shifts back to the plaintiff to prove discrimination, for example, by showing that the e Demoret v. Zegarelli, 451 F.3d 140, 151 (2d Cir. 2006).

Mr. Gagliardi argues that he was treated differently from female coaches throughout his tenure at Sacred Heart, Am. Compl.¶¶ 20 21, et. seq., and ultimately fired while they were retained, id.¶ 52.

Sacred Heart argues that nearly everyone involved in hiring and firing was male, id. at 24, that he received continued offers of employment and raises throughout his

time at Sacred Heart, Def. Mem. at 6, 17, and that he was fired for failing to perform his duties as a head tennis coach, id. at 14 15. Sacred Heart which an inference of anti-male animus can be drawn, and summary judgment should enter for Id. at 29.

The Court agrees. Mr. Gagliardi satisfies the first three parts of the McDonnell Douglas test: he belongs to a protected class, gender; Sacred Heart does not dispute that he was qualified to coach; and he was terminated, an adverse employment action. Roncallo at 245; Paul W. Gagliardi, Resume, ECF No. 30-4; Def. Local Rule 56(a)(1) Statement, ECF No. 30- employment was terminated[.]

But to Mr. Gagliardi must satisfy rd of the equal work inquiry . . . [which] requir[es] evidence that the jobs Martinez v. Davis Polk & Wardwell LLP 55 (2d Cir. 2017) (internal quotation and citation omitted) (a

standard to Title VII unequal pay claims and finding that [w]e agree with the district court that

allegations that she and other Hispanic employees received lower salary raises than non-Hispanic employees in her department . in comparison to any of her colleagues

Mr. Gagliardi also must demonstrate that there is a genuine issue of material fact as to occurred under circumstances giving rise to an inference of Rogers v. Bank of New York Mellon, No. 09 CIV. 8551 (HBP), 2016 WL

4362204, at *10 (S.D.N.Y. Aug. 15, 2016), on reconsideration, No. 09 CIV. 8551 (HBP), 2017

applies under the Equal Pay Act except that intentional discrimination is required and Title .

As noted above, however, Mr. Gagliardi has not offered a suitable comparator coach or locations were directed at him on the basis of his gender. His Title VII unequal pay claim thus fails for lack of a prima facie case for the reasons discussed above.

Even if Mr. Gagliardi had established a prima facie case of discrimination, which he has not, Sacred Heart has proffered a valid, non-discriminatory reason for the adverse employment action: Mr. poor job performance in the fall of 2016. See Abdu-Brisson, 239 F.3d at 469 ( A defendant meets its burden of rebutting a prima facie case if it presents reasons that, as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse

In the fall of 2016, Mr. Gagliardi arrived late to every practice. Gagliardi Dep at 54 55. He also missed several practices. Id. He arrived five hours late to a tournament at Yale, id. at 54, and missed the first day of the three- Id. at 52 53; see id tell Mike Guastelle that you were not going to be present for one of the matches? A. Yes. Q. And

Because Sacred Heart has provided a legitimate non-discrimination reason for terminating Mr. Gagliardi, burden shifts back to the plaintiff to prove discrimination, for example, by showing that the proffered reason is Demoret, 451 F.3d at

151. Mr. Gagliardi, however, fails to create a genuine issue of material facts to support his claim of discrimination on the basis of gender. 4

Men hired, re-hired, and supervised Mr. Gagliardi. Gagliardi Dep. at 5, Robert M. Hardy Letter to Paul Gagliardi (Feb. 3, 2016), ECF No. 30-16 employment at Sacred Heart is employment Sacred Heart University: Partnering for Performance Summ. (June 20, 2014); Sacred Heart University: Partnering for Performance Summ. (July 23, 2015). When Sacred Heart terminated Mr. Gagliardi, Sacred Heart hired a man, Mr. Guastelle, Gagliardi Dep. at 57, to replace him temporarily and then hired another man to replace him permanently, id.

Aside from his claims of unequal pay on the basis of gender, which also have not created a genuine issue of material fact on the issue of discrimination, Mr. Gagliardi has provided no evidence of anti-male animus at Sacred Heart. Id. at 60. As a result, Mr. Gagliardi has failed to demonstrate that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent, Roncallo, 447 F. at 245, on the basis of his gender.

discrimination claim will be dismissed. C. The Title VII Retaliation Claim Title VII also prohibits an employer from discriminating against an employee because the employee has opposed an employment practice prohibited by Title VII. 42 U.S.C. § 2000e-3(a). Title VII retaliation claims - Gorzynski v. JetBlue Airways Corp

the plaintiff bears the initial burden to establish a prima facie case of retaliation by offering e

4 complaints to human resources, see Paul Gagliardi e-mail to Julia Nofri (May 23, 2014), which will be discussed below.

Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 70 (2d Cir. 2015) (quoting Gorzynski, 596 F.3d at 110).

The Second Circuit has held that informal complaints of discrimination constitute See Matima v. Celli, 228 F.3d 68, 78 79 (2d Cir. 2000) making of informal protests of discrimination, including making complaints to management,

writing critical letters to customers, protesting against discrimination by industry or society in general, and expressing support of co- quotation and citation omitted)); Gregory v. Daly, 243 F.3d 687, 701 (2d Cir. 2001), as amended (Apr.

show[ing] that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30, 43 44 (2d Cir. 2019) (quoting Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)); see also Kessler v. Westchester County Department of Social Services, 461 F.3d 199, 204 (2d Cir. 2006).

To demonstrate a causal connection, a plaintiff must typically show that the protected activity occurred in temporary proximity to the adverse employment action. See Gorzynski, 596 F.3d at 110 ( But the District Court found no evidence of a causal connection between this complaint and her firing. The District Court, however, erroneously stated that the complaint occurred in December 2001, when in fact as both sides agree it happened in June 2002,

within a month of Gorzynski irectly establish a causal connection to support a discrimination or retaliation claim by showing that the protected activity Gorman Bakos v. Cornell Coop. Extension of Schenectady County, 252 F.3d 545, 554 (2d Cir.2001)); Housel v. Rochester Inst. of Tech., 6 F. Supp. 3d 294, 308 (W.D.N.Y. 2014) (recognizing that claims of retaliation are routinely dismissed when as few as three months elapse between the protected activity and the alleged act of retaliation .

Baldwin v. New York State, State Univ. of New York, Coll. at Buffalo, (quoting Papelino v. Albany Coll. of Pharm. of Union Univ., 633 F.3d 81, 91 92 (2d Cir. 2011)).

o demonstrate Baldwin Papelino, 633 F.3d at 91 92). -for cause of the challenged employment ac Id. (quoting Burrage v. United States, 571 U.S. 204, 212 (2014)).

Mr. Gagliardi first must establish that he participated in a protected activity. See Ya-Chen Chen, 805 F.3d at 70. He correctly argues that his complaints to Sacred Heart administrators constitute protected activity. Am. Compl. ¶¶ 49, 54.

See Matima, 228 F.3d at 78 79 (2d Cir.

in the making of informal protests of discrimination, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry

or society in general, and expressing support of co- a result, Mr. Gagliardi satisfies the first element of his prima facie case.

Mr. Gagliardi next must demonstrate that he suffered an adverse employment action. Ya- Chen Chen, 805 F.3d at 70. He also correctly argues that either his summer 2015 performance evaluation, Final Performance Review, or Compl. ¶ 52, satisfies this element.

summer 2015 performance evaluation may not constitute a materially adverse action that would dissuade a reasonable worker from alleging discrimination, see Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30, 43 44 (2d Cir. 2019), 5

his termination is a quintessential adverse employment action. See Ya-Chen Chen record, a reasonable jury could surely infer a retaliatory motive from the failure of defendants to impose a punishmen that he suffered an adverse employment action.

Mr. Gagliardi also Ya-Chen Chen, 805 F.3d at 70. He argues that he . Compl. ¶ 53.

s complaints and his termination defeats his retal

5 Mr. Gagliardi does not argue that he was demoted, lost pay, had diminished responsibilities, or lost any of his benefits on account of this performance evaluation. See Burlington N. & Santa Fe Ry. Co believe that there was a sufficient The jury found that two of Burlington s actions amounted to retaliation: the reassignment of White from forklift duty to standard track laborer tasks and the 37-day suspe Rather, his 2015 evaluation noted the need for improvement in some areas. Mr. Gagliardi has not argued that a reasonable Sacred Heart employee would consider such an evaluation materially adverse. six to eight weeks and is inarguably an adverse employment action. gender discrimination complaint to establish a causal connection, as explained below.

The Court agrees. Mr. Gagliardi complained about his pay and hours to athletic administrators as early as 2006. Gagliardi Dep. at 5 6. He complained to the Human Resources Department in 2014. Id. at 22; Paul Gagliardi e-mail to Julia Nofri (May 23, 2014). It is not clear whether Mr. Gagliardi alleged gender discrimination in these complaints.

On July 23, 2015, Mr. Gagliardi noted that his working conditions were Sacred Heart University: Partnering for Performance Summ. (July 23, 2015). In October 2015, Mr. Gagliardi complained of gender discrimination in a letter to the Director of Human Resources. Gagliardi Dep. at 27; see also Paul Gagliardi Letter to Human Resources (Oct. 20, 2015). He also alleged gender discrimination at meetings throughout the school year. Gagliardi Dep. at 30 32. In late July 2016, Mr. Gagliardi again complained of gender discrimination. Id. at 34.

In late August or September of 2015, he resumed his coaching duties. Gagliardi Dep. at 13. He was terminated several months later. Id. at 44.

Mr. Gagliardi undoubtedly alleged gender discrimination eleven to twelve months before his termination, and possibly before. Even applying the later date, Mr. Gagliardi has not established sufficient temporal proximity to suggest a causal nexus between his gender discrimination complaints and termination. See Housel [C]laims of retaliation are routinely dismissed when as few as three months elapse between the protected ; Natofsky v. City of New York, 921 F.3d 337, 353 (2d Cir. 2019) -- the decision to speak to Hearn -- was followed closely by Ulons adverse employment actions. This argument, however, must fail because Ulons actions occurred in 2014, almost a year after the meeting with Hearn -- too long a

period of time for a jury to be able to infer a causal connection. ); Harrison v. U.S. Postal Serv., 450 F. Appx 38, 41 (2d Cir. 2011) (s case, all of the job vacancies in question closed at least several months (and in most cases considerably longer) after Harrison engaged in protected activity. This evidence, therefore, is insufficient to support the necessary causal . 6

More importantly, after Heart re-hired him for the 2016 17 school year. Gagliardi Dep. at 13.

Because Mr. Gagliardi has not demonstrated a causal connection between his protected activity and adverse employment action, his retaliation claims are dismissed. See Matsushita Elec. Indus. Co., 475 U.S. at 587 88 ( n summary judgment the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion. But antitrust law limits the range of permissible (citation and quotation marks omitted).

But even if he had established a causal connection between his discrimination complaint and termination, Sacred Heart has submitted evidence that there were Baldwin, 690 his performance. Mr. Gagliardi then must - Id.

convened meetings to discuss his gender discrimination allegations, Gagliardi Dep. at 30 32, raised his salary by

6 At the July 9, 2019 hearing, Mr. Gagliardi argued that his summer 2016 performance review, see Final Performance Review, issued roughly two months before his termination, was retaliation for his gender discrimination complaints. Min. Entry. This argument fails for the same reasons as explained above because it occurred eight to nine months after his October 2015 letter alleging gender discrimination. Pl. Local Rule 56(a)(2) 015 2016 performance review . . . . ; see Housel routinely dismissed when as few as three months elapse between the protected activity and the alleged act of ret

more than forty percent, Paul Gagliardi Email to Julia Nofri (May 23, 2014); Gagliardi Dep. at 32, and made him eligible for part-time benefits. Gagliardi Dep. at 32.

In the fall of 2016, as previously discussed, Mr. Gagliardi arrived late to every practice, missed several practices, id. at 54 55, and missed competitions. Id. 52 53.

At the July 9, 2019 hearing, Mr. Gagliardi argued that termination were pretextual, Min. Entry, ECF No. 43, and that the Sacred Heart administrators

understood he would have to miss practices and would not be available for certain tournaments. See Letter from Paul Gagliardi to Rob in a way that it has in the past . . . . So there may not be a coach to take the players to most

material fact as to whether his termination for these same reasons is pretextual.

The Court disagrees. At this stage of the case, there must be admissible evidence in order for there to be a genuine issue of fact for a jury to consider an issue. See Spiegel v. Schulmann, 604 F.3d 72, 81

quotation marks omitted); FED. R. CIV. P. 56(e).

see Letter from Paul Gagliardi to Rob Hardy, it is not probative of the material issue for purposes of demonstrating pretext: that Sacred Heart administrators agreed that before the tennis season began, Mr. Gagliardi did not have take the players to and then, despite that agreement, fired him for not doing what he

had been expressly permitted to do. sufficient to create a genuine issue of material fact, the employee would be determining the scope of his or her employment, and not the employer.

Anti-discrimination laws, such as Title VII, however are not an invitation for courts to - . Ya-Chen Chen, 805 F.3d at 73 (2d Cir. 2015) (quoting Delaney v. Bank of Am. Corp., 766 F.3d 163, 169 (2d Cir.2014) (per curiam)); see Mitchell v. SUNY Upstate Med. Univ., 243 F. Supp. 3d 255, 280 81 (N.D.N.Y. 2017), ., 723 F. [B]ecause the evidence establishes that Plaintiff did miss work, and Defendant believed the absences to be unauthorized prior to receipt of the umpires decision . . . . the Court finds that Defendant is entitled to summary judgment on Plaintiff's race discrimination and retaliation claims asserted with respect to the August 2, 2013, NOD. ); see also Stevens v. New York, No. 09-CV-5237 CM, 2011 WL 3055370, at *7 (S.D.N.Y. July 20, 2011) .

On this material issue, whether any Sacred Heart administrator had agreed that Mr. Gagliardi did not have to appear at practices, matches, or tournaments before the tennis season began, the record is devoid of any such evidence.

Accordingly, his Title VII retaliation claim will be dismissed. D. Title IX employment discrimination under Title IX. Urie v. Yale Univ., 331 F. Supp. 2d 94, 97 (D.

Conn. 2004). Many courts have declined to find a private right of action for employment discrimination under Title IX. See id.; Maggio v. City Univ. of New York, 05-CV-4211

(BMC/KAM), 2006 WL 8439324, at *2 (E.D.N.Y. Nov. 14, 2006); 7

Tringali v. S. Country Cent. Sch. Dist., No. 06-cv-3393 (SJF), 2007 WL 9710318, at *19 (E.D.N.Y. July 19, 2007), report and recommendation adopted, 06-cv-3393(SJF)(MLO), 2007 WL 9710317 (E.D.N.Y. Sept. 10, 2007); Towers v. State Univ. of New York at Stony Brook, No. CV-04-5243 GB TML, 2007 WL

that Title IX cannot be used to circumvent the remedial scheme of Title VII. Accordingly, ; Uyar v. Seli, No. 3:16-CV-186, 2017 WL 886934, at *6 (D. Conn. Mar. 6, 2017). Some rulings have suggested, however, that Congress likely intended for Title IX to include employment discrimination claims. See N. Haven Bd. of Ed. v. Bell, 456 U.S. 512, 526 27 (1982) (

e are dealing with three basically different types of discrimination here. We are dealing with discrimination in admission to an institution, discrimination of available services or studies within an institution once students are admitted, and discrimination in employment within an institution, as a member of a faculty or whatever. In the area of employment, we permit no exceptions ) (internal quotations and citations omitted); cf. Gardner v. St. Bonaventure Univ., This authority [North Haven] is a far cry from

7 In Maggio, the court noted that directly to court without exhausting administrative remedies with the EEOC or local employment discrimination agency; there is no definition in the statute about what remedies might be available to them, so the courts will have to supply such remedies, either by analogy to Title VII or through common law; and the 300-day administrative Maggio, 2006 WL 8439324, at *2; see also Vega v. State Univ. of New York Bd. of Trustees that Title IX permits a private right of action for employment-related discrimination would be to offer employees of educational institutions receiving federal funds a mechanism for relief that differs significantly from the avenues available for other employees. However, neither the Second Circuit nor the Supreme Court have yet to adopt such reasoning to preclude Title IX suits.

holding that Title IX also authorized, like Title VII, private causes of action in this court by the employee to remedy such discrimination. For these reasons, the court finds that no private right of action exists for employees of federally funded educational institutions who are the victims of Kohlhausen v. SUNY Rockland Cmty. Coll., No. 7:10-CV-3168, 2011 WL 1404934, at *11 (S.D.N.Y. Feb. 9, 2011), amended, No. 7:10-CV-3168, 2011 WL 2749560 (S.D.N.Y. July 13, 2011), and abrogated on other grounds by Leitner v. Westchester Cmty. Coll., 779 F.3d 130 (2d Cir. 2015) s legislative history reveals a heavy emphasis on employment discrimination in educational institutions . . . . And, subsequent proposal s coverage of employment discrimination have failed. Accordingly, some courts have recognized a private cause of action for employment discrimination under Title IX. See Pejovic, 2018 WL 3 Graham could only have a claim if he were a woman coaching women. Ruling that way would

with respect to any retaliation claim that Graham may raise, but will be denied with respect to his ; rs of Louisiana State Univ. & Agric. & Mech. Coll., 55 F. Supp. 3d 864, 883 (M.D. La. 2014), rs of Louisiana State Univ. & Agr. & Mech. Coll Therefore, a male coach who complains of sex s athletic team may have a private right of action This Court, however, need not resolve this issue because no court has developed a body of law for Title IX employment claims, separate and distinct from Title VII analytic framework for addressing employment discrimination claims. See Pejovic, 2018 WL 3614169, at *3 ( Case 3:17-cv-00857-VAB Document 44 Filed 07/16/19 Page 28 of 30 party bringing at Title IX sex-discrimination claim must offer the same kind of proof required in a Title VII sex-discrimination claim. In the context of an employment dispute . . . a plaintiff would need to show: (1) that he belonged to a protected class; (2) that he was qualified for the position he held; (3) that he suffered an adverse employment action; and (4) that his adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. Proof of discriminatory intent is necessary to state a disparate treatment claim under Title (internal quotations and citations omitted); Minnis, 55 F. Supp. 3d at 883 establish a prima facie case of Title IX retaliation, a plaintiff must show that he or she participated in activity protected by Title IX and that the defendant took an adverse action against him or her because of that activity. Retaliation claims under Title IX are analyzed using the same burden-shifting framework applicable to Title VII retaliation claims. Accordingly, once a plaintiff makes a prima facie showing of retaliation based on his assertion of a Title IX right, the burden shifts to the defendant to articulate a legitimate, non-retaliatory reason for its action. Thereafter, the burden shifts back to the plaintiff to present evidence that the defendants stated non- (internal quotations and citations omitted).

As a result, even if Mr. Gagliardi has a cause of action under Title IX, the analysis of his claim would not be different from how this Court already has analyzed his Title VII claim. See Pejovic, 2018 WL 3614169, at *3; 8

see also Maggio 8

Pejovic is factually distinguishable from the present case. In Pejovic, the male coach of the female tennis team lost his job because the State University of New York at Albany discontinued Pejovic, 2018 WL 3614169, at *4 ( The Court does not read this case to be argument is that women[.] ) (citing favorably Morris v. Fordham Univ., 2004 WL 906248, at *2 3 (S.D.N.Y., Apr. 27, 2004)). Here, has not been discontinued either

those cases would presumably allow an educational employee to proceed directly to court without exhausting administrative remedies with the EEOC or local employment discrimination agency; there is no definition in the statute about what remedies might be available to them, so the courts will have to supply such remedies, either by analogy to Title VII or through common law 9

dismissed, his Title IX claim will be dismissed as well.

IV. CONCLUSION

For the reasons discussed above, the Court now GRANTS summary judgment, ECF No. 30.

The Clerk of Court is respectfully directed to close this case. SO ORDERED at Bridgeport, Connecticut, this 16 th

day of July, 2019. /s/ Victor A. Bolden VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE

9 As the court in Pejovic noted, Title IX does not permit a coach to sue solely on the basis of gender discrimination against his or her athletes. See Pejovic, 2018 WL 3614169, at *4. As a result, Mr. Gagliardi lacks standing to sue under Title IX on behalf of Sacred Heart athletes. See Allen v. Wright, 468 U.S. 737, 751 (1984) (explaining that, under Article III standing doctrine, plaintiffs seeking to invoke federal court jurisdiction must show that they have suffered, are suffering, or will be threatened with an injury).

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

PAUL GAGLIARDI, Plaintiff, v. SACRED HEART UNIVERSITY, INC. Defendant.

No. 3:17-cv-857 (VAB)

RULING AND ORDER ON MOTION FOR SUMMARY JUDGMENT , from 2006 to 2016, claims to have been paid significantly less and provided fewer resources than female head coaches. Am. Compl. ¶¶ 16 17, ¶¶ 33 48.

After ultimately being fired, Mr. Gagliardi sued Sacred Heart for gender discrimination under the Equal Pay Act of 1963, 29 U.S.C. § 206(d), et seq.,; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, et seq.; and Title IX of the Education Amendments of 1972, 20 U.S.C. §1681, et seq. Compl., ECF No.1; Am. Compl., ECF No. 7. Defendant now moves for summary judgment. Def. Mot. for Summ. J., ECF No. 30. For the reasons discussed below, Defendants motion for summary judgment, ECF No. 30, is GRANTED. I. FACTUAL AND PROCEDURAL BACKGROUND A. Factual Allegations In the fall of 2006, Mike Guastelle, Sacred senior associate athletic director, director of tennis, and tennis coach, hired Mr. Gagliardi to coach the tennis

team. Partial Tr. of Dep. of Paul Gagliardi (Mar. 16, 2018, ), ECF No. 30-3 at 5. Sacred Heart initially paid Mr. Gagliardi an annual salary of $5,000. Id. at 6. His employment that year and in subsequent years was will. Id.; see, e.g., Robert M. Hardy Letter to Paul Gagliardi (Feb. 3, 2016), ECF No. 30-16 employment at Sacred Heart is employment that is, you have the right to terminate at anytime, and the University has the right to terminate you with or without cause at any (emphasis omitted). Each year, his tennis team had about ten athletes. Gagliardi Dep. at 13. From the start, Mr. Gagliardi viewed the position as full-time position with part-time pay, id. at 5 6, 1

and began asking for a raise and a full-time appointment. Id. at 17. In 2014, Mr. Gagliardi applied for a full-time head coaching job at Fairfield University, but was not selected. Id. at 16. By then, he received an annual salary of $12,500 from Sacred Heart. Paul Gagliardi e-mail to Julia Nofri (May 23, 2014), Def. Mot. for Summ. J., Ex. H, ECF No. 30-10.

In the spring of 2014, Mr. Gagliardi directly raised the issue of his pay and hours with the Human Resources Department. Gagliardi Dep. at 22; Paul Gagliardi e-mail to Julia Nofri (May 23, 2014). A few months later, he received a favorable annual performance review. Gagliardi Dep. at 21 (Q. in each of those categories, he either gave you an or he gave you a 3 or a 4, which signified either solid or performs above expectation, is that accurate? . . . . A. Yes[ Sacred Heart University: Partnering for Performance Summ. (June 20, 2014), Def. Mot. for Summ. J., Ex. I, ECF No. 30-11.

1 Throughout most or all of his time at Sacred Heart, Mr. Gagliardi also worked as the United States Tennis Association Coordinator for Connecticut, Paul W. Gagliardi, Resume, ECF No. 30-4, and taught high school on either a part-time or full-time basis. Gagliardi Dep. at 10.

The next year, Mr. Gagliardi again received a positive performance review (i.e., Supervisor Ratings of in four categories, bove in one category, and an Overall Performance Rating of Performance Sacred Heart University: Partnering for Performance Summ. (July 23, 2015), Def. Mot. for Summ. J., Ex. J, ECF No. 30- 12. In the Comments, Brad Hurlbut, Deputy Director of Athletics, explained to Mr. Gagliardi that his position would be made full-time in the near Gagliardi Dep. at 25. Mr. Hurlburt advised Mr. Gagliardi to the program and be more positive. Sacred Heart University: Partnering for Performance Summ. (July 23, 2015).

In October of 2015, Mr. Gagliardi wrote and delivered by hand a letter to Rob Hardy, Director of Human Resources. Id. at 27. In that letter, Mr. Gagliardi claimed that his pay was lower than it should be because of gender discrimination. Id. By then, he received $13,800 per year. Id. at 32. A few weeks later, Mr. Gagliardi met with Mr. Hardy and reiterated that the female coaches were paid and treated better. Id. at 30; see also id. at 12 (explaining that from 2006 to 2011, Mr. Gagliardi had a volunteer assistant coach, and after that, he had a paid part- time coach, who also worked with the tennis team). In late December of 2015, Mr. Hardy convened a meeting with Mr. Gagliardi, Mr. Hurlbut, and Robert Valentine, the Athletic Director, to discuss Mr. discrimination claims. Id. at 30 31. Around the same time, Mr. Gagliardi also met with Mr. Hurlbut, Mr. Valentine, and Julia Nofri of Human Resources. Id. Several days later, Mr. Gagliardi received a raise; effective January 1, 2016, his annual salary increased to $20,000 and he became eligible to receive part-time employee health, retirement, and tuition assistance benefits. Id. at 32. In late July of 2016, Mr. Gagliardi again wrote to Mr. Hardy about his compensation. Id. at 34. Around the same time, Mr. Gagliardi received a lower performance review than the year

before (i.e., Supervisor Ratings of in two categories, in one category, and an Overall Performance Rating of Improvement Sacred Heart University: Partnering for Performance Summ. (n.d), Def. Mot. for Summ. J., Ex. P Performance , ECF No. 30-18; Pl. Local Rule 56(a)(2) Statement of Facts, Fact 58 summer 2016, Plaintiff refused to sign his 2015 2016 performance review . . . . Response:

That summer, Mr. Gagliardi pursued work outside of Sacred Heart, including running a [non-affiliated] tennis camp at Sacred Heart for four weeks . . . running tennis tournaments on the weekends, and teaching tennis as a self employed tennis Gagliardi Dep. at 35. For one of the weeks of his tennis camp, Mr. Gagliardi had someone else, an assistant director, run the camp because he was vacationing in Cape Cod. Id. at 36 37. In August of 2016, Mr. Gagliardi started a full-time position at Emmett High School in Ansonia. Id. at 41 42. Shortly after starting the job, he sent an e-mail and met with Sacred Heart administrators regarding his coaching hours. Id. at 39 that was the gist of the conversation in terms of if part-time, then going to work part-time hours, and how that was going to play In roughly the first six weeks of the 2016 season, Mr. Gagliardi arrived late to every practice and missed several practices. Id. at 54 55. He did not attend the first day of the three- day UConn Invitational tournament. Id. at 52 53 had just started a new job in teaching. And I want to go into my first couple weeks of teaching and take a sick day or a personal day for another job, considering that information was publicly available on the Sacred Heart website. And so I felt that would not be a good idea. And also I [had] stated in the summertime and in the fall that I was not going to exceed 25 hours of work as a coach. And I felt

as though that if we had, if I went on Friday and on Saturday and on Sunday, which we we make it to Sunday, then I would be way above being part-time. And I made that readily apparent to the admin - - to Mike. And I said you know, going to have to find someone to go to this ; id. at 62 . [I]n the fall of 2016, was there ever a time where you waited to the last minute to tell Mike Guastelle that you were not going to be present for one of the matches? A. Yes. Q. And which one was that? A. The UConn Invitational. I waited until that He missed most of the first day of the Yale Invitational. Id. at 54 (explaining that he had his assistant coach oversee the team from 10:00am to 3:00pm that day). In late September of 2016, Sacred Heart fired Mr. Gagliardi. Id. at 44. Mr. Guastelle assumed his coaching responsibilities for the rest of the season. Id. at 57. In 2017, the head coaching positions for and tennis were consolidated into a single full-time job with a $50,000 salary. Def. Mem. at 15. William Boe Wiegaard serves as the head coach of both teams. Id.

B. Procedural History On February 22, 2017, Mr. Gagliardi received a right to sue letter from the U.S. Equal Employment Opportunity Commission ( EEOC ). U.S. Equal Employment Opportunity Commission Letter to Paul Gagliardi (Feb. 22, 2017), Ex. A, ECF No. 1 at 14.

On May 23, 2017, Mr. Gagliardi sued Sacred Heart for sex discrimination. Compl. On June 15, 2017, Mr. Gagliardi amended his Complaint against Sacred Heart. Am. Compl. On August 14, 2017, Sacred Heart filed its Answer to Mr. Amended Complaint. Answer, ECF No. 11. On December 4, 2017, Sacred Heart moved to compel Mr. Gagliardi to submit a damages

analysis. Def. Mot. to Compel Damage Analysis, ECF No. 19; FED. R. CIV. P. 37; D. CONN. L. CIV. R. 37. Sacred Heart also moved to amend its Answer to add an additional affirmative defense. Def. Mot. to Amend Affirmative Defenses, ECF No. 21; FED. R. CIV. P. 15. On December 5, 2017, the Court denied Sacred motion to compel a damages analysis. Order Denying Mot. Compel Damage Analysis, ECF No. 23. On May 21, 2018, the Court granted Sacred motion to amend its Answer to add an affirmative defense. Order Granting Def. Mot. to Amend Affirmative Defenses, ECF No. 25. On May 22, 2018, Sacred Heart filed an Amended Answer. Am. Answer & Affirmative Defenses, ECF No. 26. On September 14, 2018, Sacred Heart moved for summary judgement on all counts. Mot. for Summ. J., ECF No. 30.

In support of its motion, Sacred Heart submitted the following: (1) a statement of material facts, Local Rule 56(a)(1) Statement, ECF No. 30-1; (2) a memorandum in support of the motion for summary judgement, Mem. of Law in Supp. of Def. Mot. for Summ. J. ECF No. 30-2; and (3) various exhibits, including Mr. Gagliardi resume, excerpts of various deposition transcripts, affidavits, correspondence, both letters and e-mails, and other Sacred Heart documents, including Mr. performance evaluations and time sheets. Def. Mot. for Summ. J., Ex. A U, ECF Nos. 30-3 30-23.

On October 26, 2018, Mr. Gagliardi opposed Sacred motion for summary judgment. Mem. in Opp. to Mot. for Summ. J. , ECF No. 33.

On November 26, 2018, Sacred Heart replied. Reply Mem. of Law in Further Supp. of Mot. for Summ. J. , ECF No. 36.

On July 9, 2019, the Court convened a hearing on the motion to dismiss. Min. Entry, ECF

No. 43. II. STANDARD OF REVIEW

A motion for summary judgment will be granted if the record shows no genuine issue as to any material fact, and the movant is to judgment as a matter of FED. R. CIV. P. 56(a). The moving party bears the initial burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Cartrett, 477 U.S. 317, 323 (1986). The non-moving party may defeat the motion by producing sufficient specific facts to establish that there is a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material Id. at 247 48. The moving party may satisfy this burden by pointing out to the district court an absence of evidence to support the nonmoving case. See PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam).

When a motion for summary judgment is supported by documentary evidence and sworn affidavits and the absence of a genuine issue of material the nonmoving party must do more than vaguely assert the existence of some unspecified disputed material facts or on conclusory allegations or unsubstantiated Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (citation omitted). The party opposing the motion for summary judgment come forward with specific evidence demonstrating the existence of a genuine dispute of material Id.; see also Atkinson v. Rinaldi, 3:15-cv-913 (DJS), 2016 WL 7234087, at *1 (D. Conn. Dec. 14, 2016) (holding nonmoving party must present evidence that would allow reasonable jury to find in his favor to defeat motion for summary judgment).

The court must view any inferences drawn from the facts in the light most favorable to the party opposing the summary judgment motion. Dufort v. City of New York, 874 F.3d 338, 343 (2d Cir. 2017). Conclusory allegations or denials will not be credited. Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011). After drawing all inferences in favor of the non-moving party, if the court finds that no reasonable trier of fact could find in the non- and the moving party is entitled to judgment as a matter of law, the court will grant the summary judgment motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 88 (1986). III. DISCUSSION

A. Equal Pay Act The Equal Pay Act is violated if an employer whose employees are subject to the Fair Labor Standards Act pays wages

at a rate less than the rate at which he pays wages to employees of the opposite sex ... for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions[.] Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 118 (2d Cir. 1997) (quoting 29 U.S.C. § an employee of one gender than to substantially equivalent employees of the opposite gender in similar circumstances id., and serves as the start-point for the statute of limitations. Id. Equal Pay Act claims crual, or three years if the violation is Id. 2

2 A narrow exception exists for continuing violations, but it typically will not permit the recovery of back pay. See Pollis, We believe that Acha not of immediate value, but have determinative effect on the future terms of one s employment, such as work assignments or insulation from layoff. As a consequence, a discriminatory policy that results in a wrongful denial of seniority causes harm not so much at the moment of denial as in the future, and thus only by an award of retroactive seniority can future continuing injury be avoided. A discriminatory pay scale, in contrast, has immediate effect; prospective relief requires nothing more than discontinuance of the unlawful conduct . . . . With this holding, we join

In October 2015, Mr. Gagliardi complained of gender discrimination in a letter to the Director of Human Resources. Gagliardi Dep. at 27; see also Paul Gagliardi Letter to Human Resources (Oct. 20, 2015), Def. Mot. for Summ. J., Ex. K, ECF No. 30-13. On February 22, 2017, Mr. Gagliardi received a right to sue letter for his Equal Pay Act claims from the U.S. Equal Employment Opportunity Commission. U.S. Equal Employment Opportunity Commission Letter to Paul Gagliardi. letter to Human Resources and EEOC Complaint, the Court will construe his Equal Pay Act claims as falling statute of limitations period. See Pollis, 132 F.3d at The statute of limitations requires that such claims be brought promptly to protect the defendant against stale or fabricated claims. . . . Her recovery should have been limited to damages incurred within the three-year

For a violation of the Equal Pay Act, a plaintiff must first establish the elements of a prima facie case of di wages to employees of the opposite sex; ii) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and iii) the jobs are performed under similar working Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999) (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1310 (2d Cir. 1995)); see also McCullough v. Xerox Corporation, No. 12- CV-6405L, 2016 WL 7229134, at *2 (W.D.N.Y. 2016) (noting that three factors must be proven to establish a prima facie claim under the EPA).

three specific and one general catchall

the other circuits to have considered the issue, which have unanimously adopted the reasoning of Bazemore and concluded that back pay cannot be recovered under the Equal Pay Act for salary differentials outside the limitations

provision seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or

Corning Glass Works v. Brennan, 417 U.S. 188, 196 (1974); 29 U.S.C. § 206(d)(1). legitimate business reason for implementing the gender-neutral factor that brought about the

wage differential. Belfi v. Prendergast, 191 F.3d 129, 136 (2d Cir. 1999) (citing Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 526 27 & n.1 (2d Cir.1992).

affirmative defense by producing evidence that the reasons the defendant seeks to advance are actually a pretext for sex discrimination. The appropriate inquiry to determine if the factor put forward is a pretext, is whether the employer has use[d] the factor reasonably in light of the s stated purpose a Belfi, 191 F.3d at 136; see also Chepak v. New York City Health & Hosps. Corp., No. 11-CV-9698 KBF, 2015 WL 509279, at *12 (S.D.N.Y. Feb. 5, 2015), established a prima facie case, summary judgment still would be appropriate because defendant has shown

had a legitimate business reason. Specifically, defendant has put forward evidence that the weekend position that plaintiff ultimately filled was created after a male social worker resigned,

Mr. Gagliardi argues that he was paid significantly less than female head coaches in violation of the Equal Pay Act. Am. Compl. ¶¶ 33 48.

Sacred Heart argues that there are no appropriate comparisons itimate business decision to invest in other sports. Def. Mem. at 21.

The Court agrees. Mr. Gagliardi has failed to establish a prima facie case of unequal pay. See Belfi, 191 F.3d at 135 (To establish a prima facie case under the Equal Pay Act, a plaintiff must demonstrate that he or she .

As Sacred Heart notes, coaching positions are often unique, see Def. Mem. at 21, and courts have been reluctant to find comparator positions across different sports. See Weaver v. Ohio State Univ., 71 F. Supp. 2d 789, 800 (S.D. Ohio 1998), , 194 F.3d 1315 (6th Cir. 1999) [c]ourts . . . have been reluctant to find an equality of

Some courts have permitted comparisons between coaches of the same sport, such as the . Perdue v. City Univ. of New York, 13 F. Supp. 2d 326,

CUNY intentionally discriminated against Perdue on the basis of her gender in violation of Title VII . . . . [and] illustrate[s] ; cf. Harker v. Utica Coll. of Syracuse Univ., 885 F. Supp. 378, 385 (N.D.N.Y. 1995) ( the inequities between herself and other coaches which she allegedly raised at this meeting, s

basketball coach . . . . Additionally, plaintiff could not recall what inequities she discussed with defendant Simpson at this meeting

h, is not an adequate comparator with respect to

salary. As Mr. Gagliardi has acknowledged, Mr. Guastelle then served as the senior associate also served as Id. Finally, Mr. Guastelle is a male

colleague, so his unequal treatment could not support a claim of pay discrimination under the Equal Pay Act on the basis of gender.

Mr. Gagliardi also has failed to demonstrate that his work was comparable to any other female coachs work. Indeed, as his counsel rightly conceded at oral argument, Mr. Gagliardi himself. See Mauze v. CBS Corp., 340 F. Supp. 3d 186, 205 (E.D.N.Y. 2018) Additionally,

Mauze cannot show that she is similarly situated in all material respects to the individuals she identifies as comparators . . . . Indeed, she admits that she was not qualified for the Director of Broadcast Operations roles because she was never [in] broadcast operations and didnt do director of broadcast operations . . . . As a result, we find that there is no genuine dispute of material fact as to whether Mauze was similarly situated to Burroughs and Dimotheris Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)).

In fact, his resume refers to experience with one sport and one sport only: tennis. See Resume of Paul Gagliardi, ECF No. 30-4 (listing various tennis coaching roles from 1996 to the present but no experience coaching in any other sports); see also Mauze, 340 F. Supp. 3d at 205 ( Indeed, she admits that she was not qualified for the Director of Broadcast Operations roles

operations. As a result, there is no genuine issue of material fact as to whether Mr. Gagliardi is performing equal work on jobs requiring equal skill, effort, and responsibility, at least with there is no evidence in this record that he is qualified to coach any of these other sports teams.

Moreover, the record evidence indicates other significant differences between and among the Sacre including bowling, fencing, rugby, and rowing to which Mr. Gagliardi seeks to compare to team. See, e.g., Teams Rosters, Ex. 6 9, ECF No. 33-6 33-9. While the rosters submitted by Mr. Gagliardi 19 season were comparable in size to the teams coached by Mr. Gagliardi (i.e., roughly ten athletes), id.; rowing teams enrolled considerably more student athletes. As a result, Mr. Gagliardi has failed to establish a prima facie case of discrimination under the Act. 29 U.S.C. § 206(d), et seq.

Even if Mr. Gagliardi had met his burden, Sacred Heart has provided a legitimate nondiscriminatory reason , Corning Glass Works, 417 U.S. at 196: Sacred Heart invested tenure at Sacred Heart, the school developed its , see Partial Tr. of Dep. of Def. Mot. for Summ. J., ECF No. 30-5 at 25, and had a nationally recognized . See id. at 18; Partial Tr. of Director entine Def. Mot. for Summ. J., Ex. F, ECF No. 30-8 at 18

with a -- basketball and volleyball teams also performed well. Guastelle Dep. at 18.

As Mr. Gagliardi has acknowledged, Sacred Heart did not invest heavily Gagliardi Dep. at 12 (stating that from 2006 11, Mr. Gagliardi had a volunteer assistant coach see also Sacred Heart University: Partnering for Performance Summ. (July 23, 2014) (in which Brad Hurlbut, Deputy Director of Athletics, wrote to Mr. Gagliardi that made full-time in the near future . . . . [Because Sacred Heart does] not have the resources to do

so unfortunately

And Mr. Gagliardi has not put forth any record evidence suggesting that his pay (and gender) explained or served as the basis for this underinvestment. See Corning Glass Works, 417 U.S. at 196 (1974) (p d on any other factor other than sex Belfi, 191 F.3d at 136 defendant seeks to advance are actually a pretext for sex discrimination. The appropriate inquiry

to determine if the factor put forward is a pretext, is whether the employer has use[d] the factor As a result, failure to invest in is cannot serve as a basis for Equal Pay Act claim, at least on this record. See 29 U.S.C. § 206(d)(1); Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (collecting cases for the proposition that workplace parity laws protect individual plaintiffs).

Accordingly,

B. The Title VII Discrimination Claim Title VII prohibits employers from discriminating on the basis of sex. 42 U.S.C. § 2000e- 2(a)(1). alleged unlawful employment practice occurred. -5; Bogle-Assegai v.

Connecticut, 470 F.3d 498, 506

Assegai did not move for reargument on the ground that the applicable period was 300 days or that there was a work- 3 In October 2015, Mr. Gagliardi alleged gender discrimination in a letter to Human Resources. Gagliardi Dep. at 27; see also Paul Gagliardi Letter to Human Resources. On February 22, 2017, Mr. Gagliardi received a right to sue letter for his Title VII claims. U.S. Equal Employment Opportunity Commission Letter to Paul Gagliardi.

Given these dates, it is unlikely that Mr. Gagliardi timely filed his Title VII claim with the EEOC. 42 U.S.C. § 2000e-5; Bogle-Assegai, 470 F.3d at 506 07 limitations period a Assegai did not move for reargument on the ground that the

applicable period was 300 days or that there was a work- Because the 3

A narrow exception exists for continuing violations, and courts apply the continuing violation doctrine similarly, though not identically, in Title VII and Equal Pay Act cases. See Corp. v. Morgan, 536 U.S. 101, 114 easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a discrete acts. Their very nature involves repeated conduct . . . . Such claims are based on the cumulative effect of Chin v. Port Auth. of New York & New Jersey this sort, which fall outside the limitations period, cannot be brought within it, even when undertaken pursuant to a general policy that results in other discrete acts occurring within the limitations period. This is the conclusion of every circuit to consider the question after Morgan

however, the Court will address

Courts apply a three-step burden shifting framework to claims of employment discrimination. See Roncallo v. Sikorsky Aircraft citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)) McDonnell Douglas analysis, the plaintiff must establish a prima facie case of discrimination by showing that: 1) he [or she] belonged to a protected class; 2) he [or she] was qualified for the position; 3) he [or she] suffered an adverse employment action; and 4) the adverse employment action Id. (internal quotations omitted) (citing Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008)).

Once a plaintiff has established a prima facie case, the burden shifts back to the defendant to demonstrate a valid, non-discriminatory reason for the adverse employment action. Abdu-Brisson v. Delta Air Lines, Inc., 23 [its] burden [of rebutting a prima facie case] if [it] (quoting St Ma , 509 U.S. 502, 509 (1993) and citing Schnabel v.

Abramson shifts back to the plaintiff to prove discrimination, for example, by showing that the e Demoret v. Zegarelli, 451 F.3d 140, 151 (2d Cir. 2006).

Mr. Gagliardi argues that he was treated differently from female coaches throughout his tenure at Sacred Heart, Am. Compl.¶¶ 20 21, et. seq., and ultimately fired while they were retained, id.¶ 52.

Sacred Heart argues that nearly everyone involved in hiring and firing was male, id. at 24, that he received continued offers of employment and raises throughout his

time at Sacred Heart, Def. Mem. at 6, 17, and that he was fired for failing to perform his duties as a head tennis coach, id. at 14 15. Sacred Heart which an inference of anti-male animus can be drawn, and summary judgment should enter for Id. at 29.

The Court agrees. Mr. Gagliardi satisfies the first three parts of the McDonnell Douglas test: he belongs to a protected class, gender; Sacred Heart does not dispute that he was qualified to coach; and he was terminated, an adverse employment action. Roncallo at 245; Paul W. Gagliardi, Resume, ECF No. 30-4; Def. Local Rule 56(a)(1) Statement, ECF No. 30- employment was terminated[.]

But to Mr. Gagliardi must satisfy rd of the equal work inquiry . . . [which] requir[es] evidence that the jobs Martinez v. Davis Polk & Wardwell LLP 55 (2d Cir. 2017) (internal quotation and citation omitted) (a

standard to Title VII unequal pay claims and finding that [w]e agree with the district court that

allegations that she and other Hispanic employees received lower salary raises than non-Hispanic employees in her department . in comparison to any of her colleagues

Mr. Gagliardi also must demonstrate that there is a genuine issue of material fact as to occurred under circumstances giving rise to an inference of Rogers v. Bank of New York Mellon, No. 09 CIV. 8551 (HBP), 2016 WL

4362204, at *10 (S.D.N.Y. Aug. 15, 2016), on reconsideration, No. 09 CIV. 8551 (HBP), 2017

applies under the Equal Pay Act except that intentional discrimination is required and Title .

As noted above, however, Mr. Gagliardi has not offered a suitable comparator coach or locations were directed at him on the basis of his gender. His Title VII unequal pay claim thus fails for lack of a prima facie case for the reasons discussed above.

Even if Mr. Gagliardi had established a prima facie case of discrimination, which he has not, Sacred Heart has proffered a valid, non-discriminatory reason for the adverse employment action: Mr. poor job performance in the fall of 2016. See Abdu-Brisson, 239 F.3d at 469 ( A defendant meets its burden of rebutting a prima facie case if it presents reasons that, as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse

In the fall of 2016, Mr. Gagliardi arrived late to every practice. Gagliardi Dep at 54 55. He also missed several practices. Id. He arrived five hours late to a tournament at Yale, id. at 54, and missed the first day of the three- Id. at 52 53; see id tell Mike Guastelle that you were not going to be present for one of the matches? A. Yes. Q. And

Because Sacred Heart has provided a legitimate non-discrimination reason for terminating Mr. Gagliardi, burden shifts back to the plaintiff to prove discrimination, for example, by showing that the proffered reason is Demoret, 451 F.3d at

151. Mr. Gagliardi, however, fails to create a genuine issue of material facts to support his claim of discrimination on the basis of gender. 4

Men hired, re-hired, and supervised Mr. Gagliardi. Gagliardi Dep. at 5, Robert M. Hardy Letter to Paul Gagliardi (Feb. 3, 2016), ECF No. 30-16 employment at Sacred Heart is employment Sacred Heart University: Partnering for Performance Summ. (June 20, 2014); Sacred Heart University: Partnering for Performance Summ. (July 23, 2015). When Sacred Heart terminated Mr. Gagliardi, Sacred Heart hired a man, Mr. Guastelle, Gagliardi Dep. at 57, to replace him temporarily and then hired another man to replace him permanently, id.

Aside from his claims of unequal pay on the basis of gender, which also have not created a genuine issue of material fact on the issue of discrimination, Mr. Gagliardi has provided no evidence of anti-male animus at Sacred Heart. Id. at 60. As a result, Mr. Gagliardi has failed to demonstrate that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent, Roncallo, 447 F. at 245, on the basis of his gender.

discrimination claim will be dismissed. C. The Title VII Retaliation Claim Title VII also prohibits an employer from discriminating against an employee because the employee has opposed an employment practice prohibited by Title VII. 42 U.S.C. § 2000e-3(a). Title VII retaliation claims - Gorzynski v. JetBlue Airways Corp

the plaintiff bears the initial burden to establish a prima facie case of retaliation by offering e

4 complaints to human resources, see Paul Gagliardi e-mail to Julia Nofri (May 23, 2014), which will be discussed below.

Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 70 (2d Cir. 2015) (quoting Gorzynski, 596 F.3d at 110).

The Second Circuit has held that informal complaints of discrimination constitute See Matima v. Celli, 228 F.3d 68, 78 79 (2d Cir. 2000) making of informal protests of discrimination, including making complaints to management,

writing critical letters to customers, protesting against discrimination by industry or society in general, and expressing support of co- quotation and citation omitted)); Gregory v. Daly, 243 F.3d 687, 701 (2d Cir. 2001), as amended (Apr.

show[ing] that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30, 43 44 (2d Cir. 2019) (quoting Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)); see also Kessler v. Westchester County Department of Social Services, 461 F.3d 199, 204 (2d Cir. 2006).

To demonstrate a causal connection, a plaintiff must typically show that the protected activity occurred in temporary proximity to the adverse employment action. See Gorzynski, 596 F.3d at 110 ( But the District Court found no evidence of a causal connection between this complaint and her firing. The District Court, however, erroneously stated that the complaint occurred in December 2001, when in fact as both sides agree it happened in June 2002,

within a month of Gorzynski irectly establish a causal connection to support a discrimination or retaliation claim by showing that the protected activity Gorman Bakos v. Cornell Coop. Extension of Schenectady County, 252 F.3d 545, 554 (2d Cir.2001)); Housel v. Rochester Inst. of Tech., 6 F. Supp. 3d 294, 308 (W.D.N.Y. 2014) (recognizing that claims of retaliation are routinely dismissed when as few as three months elapse between the protected activity and the alleged act of retaliation .

Baldwin v. New York State, State Univ. of New York, Coll. at Buffalo, (quoting Papelino v. Albany Coll. of Pharm. of Union Univ., 633 F.3d 81, 91 92 (2d Cir. 2011)).

o demonstrate Baldwin Papelino, 633 F.3d at 91 92). -for cause of the challenged employment ac Id. (quoting Burrage v. United States, 571 U.S. 204, 212 (2014)).

Mr. Gagliardi first must establish that he participated in a protected activity. See Ya-Chen Chen, 805 F.3d at 70. He correctly argues that his complaints to Sacred Heart administrators constitute protected activity. Am. Compl. ¶¶ 49, 54.

See Matima, 228 F.3d at 78 79 (2d Cir.

in the making of informal protests of discrimination, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry

or society in general, and expressing support of co- a result, Mr. Gagliardi satisfies the first element of his prima facie case.

Mr. Gagliardi next must demonstrate that he suffered an adverse employment action. Ya- Chen Chen, 805 F.3d at 70. He also correctly argues that either his summer 2015 performance evaluation, Final Performance Review, or Compl. ¶ 52, satisfies this element.

summer 2015 performance evaluation may not constitute a materially adverse action that would dissuade a reasonable worker from alleging discrimination, see Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30, 43 44 (2d Cir. 2019), 5

his termination is a quintessential adverse employment action. See Ya-Chen Chen record, a reasonable jury could surely infer a retaliatory motive from the failure of defendants to impose a punishmen that he suffered an adverse employment action.

Mr. Gagliardi also Ya-Chen Chen, 805 F.3d at 70. He argues that he . Compl. ¶ 53.

s complaints and his termination defeats his retal

5 Mr. Gagliardi does not argue that he was demoted, lost pay, had diminished responsibilities, or lost any of his benefits on account of this performance evaluation. See Burlington N. & Santa Fe Ry. Co believe that there was a sufficient The jury found that two of Burlington s actions amounted to retaliation: the reassignment of White from forklift duty to standard track laborer tasks and the 37-day suspe Rather, his 2015 evaluation noted the need for improvement in some areas. Mr. Gagliardi has not argued that a reasonable Sacred Heart employee would consider such an evaluation materially adverse. six to eight weeks and is inarguably an adverse employment action. gender discrimination complaint to establish a causal connection, as explained below.

The Court agrees. Mr. Gagliardi complained about his pay and hours to athletic administrators as early as 2006. Gagliardi Dep. at 5 6. He complained to the Human Resources Department in 2014. Id. at 22; Paul Gagliardi e-mail to Julia Nofri (May 23, 2014). It is not clear whether Mr. Gagliardi alleged gender discrimination in these complaints.

On July 23, 2015, Mr. Gagliardi noted that his working conditions were Sacred Heart University: Partnering for Performance Summ. (July 23, 2015). In October 2015, Mr. Gagliardi complained of gender discrimination in a letter to the Director of Human Resources. Gagliardi Dep. at 27; see also Paul Gagliardi Letter to Human Resources (Oct. 20, 2015). He also alleged gender discrimination at meetings throughout the school year. Gagliardi Dep. at 30 32. In late July 2016, Mr. Gagliardi again complained of gender discrimination. Id. at 34.

In late August or September of 2015, he resumed his coaching duties. Gagliardi Dep. at 13. He was terminated several months later. Id. at 44.

Mr. Gagliardi undoubtedly alleged gender discrimination eleven to twelve months before his termination, and possibly before. Even applying the later date, Mr. Gagliardi has not established sufficient temporal proximity to suggest a causal nexus between his gender discrimination complaints and termination. See Housel [C]laims of retaliation are routinely dismissed when as few as three months elapse between the protected ; Natofsky v. City of New York, 921 F.3d 337, 353 (2d Cir. 2019) -- the decision to speak to Hearn -- was followed closely by Ulons adverse employment actions. This argument, however, must fail because Ulons actions occurred in 2014, almost a year after the meeting with Hearn -- too long a

period of time for a jury to be able to infer a causal connection. ); Harrison v. U.S. Postal Serv., 450 F. Appx 38, 41 (2d Cir. 2011) (s case, all of the job vacancies in question closed at least several months (and in most cases considerably longer) after Harrison engaged in protected activity. This evidence, therefore, is insufficient to support the necessary causal . 6

More importantly, after Heart re-hired him for the 2016 17 school year. Gagliardi Dep. at 13.

Because Mr. Gagliardi has not demonstrated a causal connection between his protected activity and adverse employment action, his retaliation claims are dismissed. See Matsushita Elec. Indus. Co., 475 U.S. at 587 88 ( n summary judgment the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion. But antitrust law limits the range of permissible (citation and quotation marks omitted).

But even if he had established a causal connection between his discrimination complaint and termination, Sacred Heart has submitted evidence that there were Baldwin, 690 his performance. Mr. Gagliardi then must - Id.

convened meetings to discuss his gender discrimination allegations, Gagliardi Dep. at 30 32, raised his salary by

6 At the July 9, 2019 hearing, Mr. Gagliardi argued that his summer 2016 performance review, see Final Performance Review, issued roughly two months before his termination, was retaliation for his gender discrimination complaints. Min. Entry. This argument fails for the same reasons as explained above because it occurred eight to nine months after his October 2015 letter alleging gender discrimination. Pl. Local Rule 56(a)(2) 015 2016 performance review . . . . ; see Housel routinely dismissed when as few as three months elapse between the protected activity and the alleged act of ret

more than forty percent, Paul Gagliardi Email to Julia Nofri (May 23, 2014); Gagliardi Dep. at 32, and made him eligible for part-time benefits. Gagliardi Dep. at 32.

In the fall of 2016, as previously discussed, Mr. Gagliardi arrived late to every practice, missed several practices, id. at 54 55, and missed competitions. Id. 52 53.

At the July 9, 2019 hearing, Mr. Gagliardi argued that termination were pretextual, Min. Entry, ECF No. 43, and that the Sacred Heart administrators

understood he would have to miss practices and would not be available for certain tournaments. See Letter from Paul Gagliardi to Rob in a way that it has in the past . . . . So there may not be a coach to take the players to most

material fact as to whether his termination for these same reasons is pretextual.

The Court disagrees. At this stage of the case, there must be admissible evidence in order for there to be a genuine issue of fact for a jury to consider an issue. See Spiegel v. Schulmann, 604 F.3d 72, 81

quotation marks omitted); FED. R. CIV. P. 56(e).

see Letter from Paul Gagliardi to Rob Hardy, it is not probative of the material issue for purposes of demonstrating pretext: that Sacred Heart administrators agreed that before the tennis season began, Mr. Gagliardi did not have take the players to and then, despite that agreement, fired him for not doing what he

had been expressly permitted to do. sufficient to create a genuine issue of material fact, the employee would be determining the scope of his or her employment, and not the employer.

Anti-discrimination laws, such as Title VII, however are not an invitation for courts to - . Ya-Chen Chen, 805 F.3d at 73 (2d Cir. 2015) (quoting Delaney v. Bank of Am. Corp., 766 F.3d 163, 169 (2d Cir.2014) (per curiam)); see Mitchell v. SUNY Upstate Med. Univ., 243 F. Supp. 3d 255, 280 81 (N.D.N.Y. 2017), ., 723 F. [B]ecause the evidence establishes that Plaintiff did miss work, and Defendant believed the absences to be unauthorized prior to receipt of the umpires decision . . . . the Court finds that Defendant is entitled to summary judgment on Plaintiff's race discrimination and retaliation claims asserted with respect to the August 2, 2013, NOD. ); see also Stevens v. New York, No. 09-CV-5237 CM, 2011 WL 3055370, at *7 (S.D.N.Y. July 20, 2011) .

On this material issue, whether any Sacred Heart administrator had agreed that Mr. Gagliardi did not have to appear at practices, matches, or tournaments before the tennis season began, the record is devoid of any such evidence.

Accordingly, his Title VII retaliation claim will be dismissed. D. Title IX employment discrimination under Title IX. Urie v. Yale Univ., 331 F. Supp. 2d 94, 97 (D.

Conn. 2004). Many courts have declined to find a private right of action for employment discrimination under Title IX. See id.; Maggio v. City Univ. of New York, 05-CV-4211

(BMC/KAM), 2006 WL 8439324, at *2 (E.D.N.Y. Nov. 14, 2006); 7

Tringali v. S. Country Cent. Sch. Dist., No. 06-cv-3393 (SJF), 2007 WL 9710318, at *19 (E.D.N.Y. July 19, 2007), report and recommendation adopted, 06-cv-3393(SJF)(MLO), 2007 WL 9710317 (E.D.N.Y. Sept. 10, 2007); Towers v. State Univ. of New York at Stony Brook, No. CV-04-5243 GB TML, 2007 WL

that Title IX cannot be used to circumvent the remedial scheme of Title VII. Accordingly, ; Uyar v. Seli, No. 3:16-CV-186, 2017 WL 886934, at *6 (D. Conn. Mar. 6, 2017). Some rulings have suggested, however, that Congress likely intended for Title IX to include employment discrimination claims. See N. Haven Bd. of Ed. v. Bell, 456 U.S. 512, 526 27 (1982) (

e are dealing with three basically different types of discrimination here. We are dealing with discrimination in admission to an institution, discrimination of available services or studies within an institution once students are admitted, and discrimination in employment within an institution, as a member of a faculty or whatever. In the area of employment, we permit no exceptions ) (internal quotations and citations omitted); cf. Gardner v. St. Bonaventure Univ., This authority [North Haven] is a far cry from

7 In Maggio, the court noted that directly to court without exhausting administrative remedies with the EEOC or local employment discrimination agency; there is no definition in the statute about what remedies might be available to them, so the courts will have to supply such remedies, either by analogy to Title VII or through common law; and the 300-day administrative Maggio, 2006 WL 8439324, at *2; see also Vega v. State Univ. of New York Bd. of Trustees that Title IX permits a private right of action for employment-related discrimination would be to offer employees of educational institutions receiving federal funds a mechanism for relief that differs significantly from the avenues available for other employees. However, neither the Second Circuit nor the Supreme Court have yet to adopt such reasoning to preclude Title IX suits.

holding that Title IX also authorized, like Title VII, private causes of action in this court by the employee to remedy such discrimination. For these reasons, the court finds that no private right of action exists for employees of federally funded educational institutions who are the victims of Kohlhausen v. SUNY Rockland Cmty. Coll., No. 7:10-CV-3168, 2011 WL 1404934, at *11 (S.D.N.Y. Feb. 9, 2011), amended, No. 7:10-CV-3168, 2011 WL 2749560 (S.D.N.Y. July 13, 2011), and abrogated on other grounds by Leitner v. Westchester Cmty. Coll., 779 F.3d 130 (2d Cir. 2015) s legislative history reveals a heavy emphasis on employment discrimination in educational institutions . . . . And, subsequent proposal s coverage of employment discrimination have failed. Accordingly, some courts have recognized a private cause of action for employment discrimination under Title IX. See Pejovic, 2018 WL 3 Graham could only have a claim if he were a woman coaching women. Ruling that way would

with respect to any retaliation claim that Graham may raise, but will be denied with respect to his ; rs of Louisiana State Univ. & Agric. & Mech. Coll., 55 F. Supp. 3d 864, 883 (M.D. La. 2014), rs of Louisiana State Univ. & Agr. & Mech. Coll Therefore, a male coach who complains of sex s athletic team may have a private right of action This Court, however, need not resolve this issue because no court has developed a body of law for Title IX employment claims, separate and distinct from Title VII analytic framework for addressing employment discrimination claims. See Pejovic, 2018 WL 3614169, at *3 ( Case 3:17-cv-00857-VAB Document 44 Filed 07/16/19 Page 28 of 30 party bringing at Title IX sex-discrimination claim must offer the same kind of proof required in a Title VII sex-discrimination claim. In the context of an employment dispute . . . a plaintiff would need to show: (1) that he belonged to a protected class; (2) that he was qualified for the position he held; (3) that he suffered an adverse employment action; and (4) that his adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. Proof of discriminatory intent is necessary to state a disparate treatment claim under Title (internal quotations and citations omitted); Minnis, 55 F. Supp. 3d at 883 establish a prima facie case of Title IX retaliation, a plaintiff must show that he or she participated in activity protected by Title IX and that the defendant took an adverse action against him or her because of that activity. Retaliation claims under Title IX are analyzed using the same burden-shifting framework applicable to Title VII retaliation claims. Accordingly, once a plaintiff makes a prima facie showing of retaliation based on his assertion of a Title IX right, the burden shifts to the defendant to articulate a legitimate, non-retaliatory reason for its action. Thereafter, the burden shifts back to the plaintiff to present evidence that the defendants stated non- (internal quotations and citations omitted).

As a result, even if Mr. Gagliardi has a cause of action under Title IX, the analysis of his claim would not be different from how this Court already has analyzed his Title VII claim. See Pejovic, 2018 WL 3614169, at *3; 8

see also Maggio 8

Pejovic is factually distinguishable from the present case. In Pejovic, the male coach of the female tennis team lost his job because the State University of New York at Albany discontinued Pejovic, 2018 WL 3614169, at *4 ( The Court does not read this case to be argument is that women[.] ) (citing favorably Morris v. Fordham Univ., 2004 WL 906248, at *2 3 (S.D.N.Y., Apr. 27, 2004)). Here, has not been discontinued either

those cases would presumably allow an educational employee to proceed directly to court without exhausting administrative remedies with the EEOC or local employment discrimination agency; there is no definition in the statute about what remedies might be available to them, so the courts will have to supply such remedies, either by analogy to Title VII or through common law 9

dismissed, his Title IX claim will be dismissed as well.

IV. CONCLUSION

For the reasons discussed above, the Court now GRANTS summary judgment, ECF No. 30.

The Clerk of Court is respectfully directed to close this case. SO ORDERED at Bridgeport, Connecticut, this 16 th

day of July, 2019. /s/ Victor A. Bolden VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE

9 As the court in Pejovic noted, Title IX does not permit a coach to sue solely on the basis of gender discrimination against his or her athletes. See Pejovic, 2018 WL 3614169, at *4. As a result, Mr. Gagliardi lacks standing to sue under Title IX on behalf of Sacred Heart athletes. See Allen v. Wright, 468 U.S. 737, 751 (1984) (explaining that, under Article III standing doctrine, plaintiffs seeking to invoke federal court jurisdiction must show that they have suffered, are suffering, or will be threatened with an injury).

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