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The denial of emeritus status to a retired Fashion Institute of Technology professor who claimed retaliation for criticizing school policy cannot be considered an adverse employment action, a federal judge has ruled. Southern District of New York Judge Laura Taylor Swain said professor Martin Zelnick had failed to offer enough evidence to sustain a claim of wrongful retaliation for the exercise of free speech rights because the school’s refusal to name him professor emeritus did not result in the denial or loss of tangible benefits. The professor had earned the ire of the institute by criticizing its plans to close off portions of West 27th Street to help create a more campus-like atmosphere. Zelnick is part-owner of a building on the street and in 1999 he joined other community members to oppose the so-called “Streetscape” project by forming the 27th Street Block Association. He went on to distribute flyers and write letters and, as an interest holder in a local business entity, was part of a lawsuit filed in state court challenging the proposed project, which is still pending. After retiring in 1999 as a full-time professor in the interior design department, Zelnick continued to teach an occasional class as an adjunct professor. Although he was recommended for emeritus status by the department, the school’s president declined to recommend him as professor emeritus to the board of trustees in 2002 and 2003. Zelnick filed Zelnick v. Fashion Institute of Technology, 03 CV 8210, alleging the decision was in retaliation for his First Amendment protected speech in opposing Streetscape. According to the transcript of an opinion on summary judgment delivered from the bench on Sept. 2, with a formal decision to follow, Swain noted that the school conceded that Zelnick’s speech was related to a matter of public concern and that the decision not to grant him emeritus status was “linked to his speech.” That left the issue of whether or not he suffered an adverse employment action, which Swain said “is generally characterized as a materially adverse change in the terms and conditions of employment,” such as a demotion with a cut in pay, a less distinguished title or “significantly diminished material responsibilities.” By contrast, Swain said, Zelnick “alleges that he has been denied an additional title, one that he claims carries with it both significant prestige and tangible benefits.” In other cases within the district courts of the circuit or the circuit itself, she said, judges have refused to find adverse employment action where an officer was transferred out of an elite police unit or where a plaintiff claimed that a transfer from one New York City Human Resources Administration unit to another “resulted in both a loss of prestige and the loss of a professional growth opportunity.” “Here, discovery has been completed, and the record read in a light most favorable to the plaintiff fails to support his assertion that he has been harmed in a materially significant way,” she said. NO TANGIBLE BENEFIS The school defendants, she said, offered affidavits asserting that emeritus status does not carry with it “rights to any tangible benefits, and they introduced uncontroverted evidence that retired professors are entitled to use FIT facilities and that adjunct professors have office and phone privileges.” They also submitted a school handbook that lays out the benefits that come with retiree status “but does not provide for any tangible benefits of emeritus status other than the right to apply the title ‘emeritus’ to the retired professor’s academic title.” Zelnick, she said, offered only “his own conclusory statements regarding the effect of the prestige of the title on a retired professor’s marketability and access to the academic market” and “assertions that access to FIT facilities goes with that title.” He also offered an affidavit from a former institute official who claimed “tangible benefits” came with the title — evidence that was not enough for Swain. “Plaintiff argues that, even if he has failed to identify an adverse employment action by way of a demonstration of loss or denial of tangible benefits, his proffered evidence is sufficient to demonstrate harassment rising to the level of an adverse employment action,” Swain said. “Plaintiff’s proof unfortunately falls short of the mark in this regard as well.” Judith Broach and Joshua Parkhurst of Broach & Stulberg represented Zelnick. Victor Kovner of Davis Wright Tremaine represented the defendants.

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