By Jeff Birren, Senior Writer
Robert Zenie was hired by the College of Mount Saint Vincent (“CMSV”) in 2015 as the wrestling coach and an assistant athletic director. He was then 46 years old. At the time he had “little or no experience working in collegiate athletics, whether in an administrative capacity or as a head coach” (Zenie v. Coll. Of Mount Saint Vincent, S.D.N.Y., Case No. 18-CV-4659 (JMF), at 1/2, (“Zenie v. CSMV”), (9-14-2020)).
By 2017, Zenie was complaining to the athletic department about various things, including not being promoted to associate athletic director. He quit in September 2017, and in 2018 Zenie sued CMSV (Id. at 4). He alleged “a slew of claims” including age discrimination and Title VII of the Civil Rights Act of 1964.
CMSV’s motion for summary judgment was granted in 2020. Zenie appealed, and in December 2021 the Second Circuit affirmed in an unpublished opinion (Zenie v. College of Mt. St. Vincent, (“Zenie”) U.S.C.A., Second Circuit, Case No. 20-3535-cv, 2021 U.S. App. LEXIS 37790, (12-21-21)).
Background
Zenie attended Long Island Lutheran High School and as a wrestler he was “a two-time Private School State place winner” (https://cmsv.com/news, “Zenie becomes Wrestling program’s third head coach” (2015/8/20)). He then attended Worcester Polytechnic Institute in Worchester, MA and received a B.S. in Industrial Engineering. Zenie worked on the construction of bulkheads, fixed and floating docks, and waterfront homes.
His coaching career began in 1989 as an assistant coach at Herricks High School. Zenie was head coach at Wagner College from 1993-1994. He began working with USA Wrestling in 2008 where he had several different positions, including the New York State National Duals Team Coach and Fargo Team Leader (Id.). Zenie returned to high school coaching in 2011. He was hired at CMSV in 2015.
According to Zenie’s lawsuit, his job entailed managing and scheduling use of the school’s athletic facilities, proposing the wrestling team’s annual budget, and coaching the wrestling team (Zenie v. CMSV at 2). Zenie began to have conflicts with the Athletic Department in 2017 over the wrestling program’s budget. He was also unhappy when, that same year, he was not promoted to Associate Athletic Director, but a younger person was. It was explained to Zenie that position was “matched with the head coach of one of the leading sports at the College” but not one of the minor programs (Id. at 3).
Zenie complained to the Human Resources department but his “complaint was not formally addressed.” In 2017 he “received a formal evaluation” that said he was “very good” at various aspects of his job. However, Zenie continued to complain about the Athletic Department’s hiring policies and was observed “criticizing the department in front of potential hires and other co-workers.”
On September 5, 2017, he received a letter from the Dean of Students that mentioned his “souring demeanor and how it was affecting his ‘professional judgment when interacting with his colleagues” (Id. at 3/4). Zenie thought this was a “gross misrepresentation” and “resigned the same day” (Id. at 4). He filed a charge with the EEOC on January 26, 2018, and one month later he received a Right to Sue Notice. Zenie filed his Complaint on May 25, 2018. He sued both CMSV and Athletic Director Barima Yeboah. At the time, “Zenie is representing himself” (employerinsight.wordpress.com, “Ex-Wrestling Coach Sues College for Age Discrimination” (6-6-18)).
In the District Court
Zenie soon had counsel. CMSV and Yeboah did not file a motion to dismiss but answered on July 20, 2018. Mediation failed, and from there it was on to discovery motions heard on both 1/23/19 and 5/02/19. The defendants filed a motion for summary judgment in August 2019. Zenie’s counsel needed help from the Court in filing its opposition electronically “because of the size of the documents… it is necessary to break them up” and “this has taken additional time to upload” (Zenie v. CMSV, Order at 2 (10-8-19)). The defendants also needed help for extra time to reply and to file extra pages. That, too, was granted (Zenie v. CMSV, Order (10-14-19)).
The Court ruled on the motion on September 14, 2020. It used the usual summary judgment standard that there must be “no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law” (Zenie v. CMSV at 4). The Court first dealt with the age discrimination claim. Zenie’s problem was simple. To be promoted to Associate Athletic Director, he had to be either the men’s or women’s basketball head coach, and Zenie “had zero experience coaching basketball” (Id. at 5). Furthermore, “the record does not support an inference that the College’s failure to promote Zenie was due to his age, let alone that age was the but-for cause of that decision” (Id. at 6). Indeed, Zenie “does not show that he was treated differently from his younger co-workers.” There was also “no evidence that those involved in the decision … made disparaging comments about Zenie’s age, adversely compared him to candidates due to any difference in age, or fostered an environment that disfavored older employees.”
Zenie argued that the defendants “failed to provide him with clear reasons for not promoting him” but “that alone is insufficient to establish discriminatory intent” (Id. at 7). Moreover, “the record does in fact reflect that there was a good reason” to promote the other candidate because that person had experience coaching basketball. Finally, Zenie failed to establish a claim for constructive discharge. Courts “have repeatedly held that an employee’s dissatisfaction with his job duties or performance evaluation, criticism by a supervisor, being unfairly disciplined, not being promoted to a desired position, and demotion do not meet the ‘intolerable’ threshold” (Id. at 8). The motion for summary judgment “must be and is granted” for those claims.
Federal Retaliation Claim
Zenie “strangely” brought the claim “pursuant to Title VII, not the ADEA” but “Title VII has no application here, however, as it is concerned with ‘race, color, religion, sex, or national origin,’ not age, 42 U.S.C. §2000e-2(a)” (Id. at 8). Zenie argued that the law is “substantially identical”, and the Court ultimately decided that “there is no reason to refrain from addressing the substance of his ADEA retaliation claim, as it is fully briefed.” His problems continued. Zenie sued Yeboah individually, yet “there is no individual liability under the ADEA (or Title VII, for that matter.” Consequently, “there is no basis for Zenie’s claim about Yeboah” (Id. at 8/9).
The retaliation claims required Zenie to “show (1) participation in a protected activity; (2) the defendant’s knowledge of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action.” (Id. at 9). His claim “falls woefully short. For one thing, Zenie does not identify the protected activity. The closest he comes is to allege that he complained to Human Resources that the College was showing favoritism towards younger, inexperienced candidates.” “Needless to say, a plaintiff cannot bring a retaliation claim where the alleged retaliation took place before the plaintiff’s protected activity.”
Zenie also failed to “point to evidence that President Flynn—the person who made the decision to hire Mooney—even knew about the complaints.” Finally, Zenie cited “actions taken later” but “he identifies no evidence linking those actions to his complaints many months earlier.” “In short, any ADEA retaliation claim must be and is dismissed.”
State Law and “Local Law” Claims
Zenie also brought claims under state and local law including his “analogous claims for age discrimination and retaliation” and for “hostile work environment” (Id. at 10). The Court accepted jurisdiction over the age and retaliation claims because “it is well established that the standards for evaluating them are the same as the standards under the ADEA” so “it would be the height of inefficiency to defer a decision on [his analogous] NYSHRL claim(s) to a state court.” Those claims “are dismissed for the same reasons.” The Court declined to accept jurisdiction over Zenie’s other state and local claims, in part because he had not alleged a federal counterpart, and because those claims “are subject to a different standard” (Id. at 11). Those claims were “dismissed without prejudice to his refiling them in state court.” The Clerk was directed to terminate” the case, “to enter judgment in Defendants’ favor, and to close the case.”
In the Second Circuit
Zenie filed a Notice of Appeal on October 14, 2020, though his counsel was not yet admitted to practice before the Circuit (Doc. #5, (10-15-20)). Prior to oral argument, Zenie’s counsel filed four documents that the Court declared “Defective” and required a corrected document (Doc. #34, #66, #76, #78.). The defendants filed two such defective documents that also required a “Corrected” document (Doc. #41, #71). Eventually the appeal was fully briefed.
The Circuit held oral argument on December 15, 2021 and issued its opinion six days later. It is a mere two pages of analysis. The Circuit stated that it reviews a grant of summary judgment de novo. It is appropriate “only where ‘the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law’” (Zenie at 4). The Court used a burden-shifting framework and assumed “without deciding that Zenie has established a primage facie case of age discrimination for the College’s failure to promote him to Associate Director of Athletics.” However, the school wanted the candidate to “also coach basketball, which Zenie has never done. Given this gap, Zenie’s credentials were not ‘so superior’ to those of James Mooney, the candidate hired by the College, that no ‘reasonable person…could have chosen [Mooney] over [Zenie] for the job in question.’” Moreover, Zenie “presents no evidence of comments about his age that would support an interference of discrimination.”
Zenie argued that CMSV “could have paired the Associate Director position with a non-basketball coaching position.” However, given the lack of evidence that CMSV’s “pairing of these positions was a pretext for discrimination, we must defer to the College’s judgment.” Zenie also failed to show that his position “was rendered so intolerable that [ ] he was compelled to quit.” He had some complaints, but “dissatisfaction with work assignments, reduced promotion opportunities, and criticism of one’s work do not establish constructive discharge” (Id. at 4/5).
Although he produced evidence that others had “disparaged him to the College President,” “there is no evidence that Zenie was aware of these private comments prior to his September 5, 2017 resignation—and, indeed, Zenie’s federal complaint in this case does not mention them—they could not have made Zenie’s work conditions ‘intolerable’” (Id. at 5).
The retaliation claim fared no better, in part, because CMSV’s president “who decided to pair the Associate Athletic Director positions with the basketball coaching positions for which Zenie was not qualified, was not aware of Zenie’s internal complaints about age discrimination.” Others knew about Zenie’s complaints, but his complaints, and cuts to the wrestling budget “began well before [Zenie] had ever engaged in any protected activity,” so “an interference of retaliation does not arise.”
The Circuit stated that it had “reviewed all of the arguments raised by Zenie on appeal and find them to be without merit.” It therefore affirmed the grant of summary judgment. Zenie filed a Petition for Rehearing on January 5, 2022 (Zenie,Doc. #102). The panel denied the request two days later (Zenie,Order, Doc. #107 (1-7-22)). The Circuit issued its Judgment Mandate (Zenie,Doc. #108 (1-14-22)), that was received by the District Court the same day (Zenie v. CMSV, Doc. #93).
Conclusion
Zenie is now on the clock as to for filing for certiorari in the Supreme Court. The Circuit opinion was unpublished, so his chances are small. The case will now likely return to the District Court to assess the defendants’ costs that Zenie will be required to pay. It is great to have enthusiasm for a case, but unless Zenie can craft a settlement that releases him from the costs, this will have been an expensive process for a case that was likely doomed from the start.
