Preview:

Mascola v City University of New York
2003 NY Slip Op 30185(U)
October 15, 2003
Supreme Court, New York County
Docket Number: 106800/02
Judge: Leland G. DeGrasse
Republished from New York State Unified Court
System's E-Courts Service.
Search E-Courts (http://www.nycourts.gov/ecourts) for
any additional information on this case.
This opinion is uncorrected and not selected for official
publication.




[* 1 ]
SUPREME COURT OF THE STATE OF NEW YORK -                            NEW YORK COUNTY
LELAND
PRESENT:                                                            PART
INDEX NO.
MOTION DATE
- v -
MOTION SEQ. NO.
MOTION CAL. NO.
The following papers, numbered 1 to                                 were read on this motion tolfor
PAPERS NUMBERED
Notice of Motion/ Order to Show Cause -A ffidavits - Exhibits ...
Answering Affidavits - Exhibits
Replying Affidavits
Cross-Motion:                                                       Yes                               No
Upon the foregoing papers, it is ordered that this motion




[* 2 ]
SUPREME COURT                                                                                        :  STATE OF NEW YORK
COUNTY OF NEW YORK   :  I.A.S. PART 25
Index No.:
Plaintiff,                                                                                           Cal. No.: 6 of 7/21/03
-against-
THE CITY UNIVERSITY OF NEW YORK,
BRENDA RICHARDSON                                                                                    in her individual
and official capacity, and GLORIA WATERS, in her
individual and official capacity,
In this action arising from alleged gender discrimination in the workplace, defendants move
to dismiss the complaint based on the grounds that a defense is founded upon documentary evidence,
                                                                                                                                                                                                                                                                                                                                     the action is time-barred, and plaintiff fails to state a cause of action (CPLR 321 1 [a] [                                                                                                                                                                           and
                                                                                                                                                                                                                                                                                                                                                                                                                                   FACTS
                                                                                                                                                In                                           1982, plaintiff John                                                                                                                                                                                                                          was hired by defendant City University of New York
                                                                                                     (“CUNY”) as a Higher Education Assistant                                                                                                                                                                                                                                                                                                                                                   Personnel Director. In 1984, plaintiff
                                                                                                                                                was promoted to Higher Education Associate                                                                                                                                                                                                                                                                                                                                                                                     Personnel Director in the
University                                                                                                                                                                                                                                           Resource Management Services                                                                                                                                                                                                                                                         office and served in that position
                                                                                                                                                                                             until his retirement on January 28,2003. The gravamen                                                                                                                                                                                                                                              amended complaint is that (1) plaintiff
                                                                                                                                                                                                                                                     was denied the opportunity to advance to the higher title of Higher Education                                                                                                                                                                                                                                                                               like




[* 3 ]
his female co-workers, (2 ) plaintiff never received a discretionary merit salary increase like his female
co-workers, and (3) plaintiffs supervisors, defendants Brenda Richardson Malone, Vice Chancellor
of CUNY, and Gloriana Waters, Dean of CUNY,have subjected him to a hostile work environment
because of his gender.  Plaintiff also claims that the aforementioned work conditions were so
                                                                                                             intolerable that he wasforced to involuntary retire on January 28,2003. Plaintiff                                                           claims that
                                                                                                             prior to his retirement, he was one of three professional male staff members employed by
                                                                                                             office.  Plaintiff commenced the underlying action on April 2, 2002, alleging causes of
action under 42 U.S.C.                                                                                       1983, 1985, and                                                                            1986, and the New York State and New York City
Human Rights Law (N.Y. Exec. Law                                                                             290 et seq., N.Y.C.                                                                        Code Title 8 et seq.). By order
and decision dated January 14,2003, this court dismissed the complaint, with leave to replead, based
on plaintiffs failure to provide dates for the alleged discriminatory acts. Plaintiff timely served an
amended complaint dated February 20,2003, alleging that he was initially deprived of a promotion
and was thereafter constructively discharged from his position with CUNY as a result                         based
discrimination in violation of the New York State Human Rights Law (N.Y. Exec. Law                           290, et
seq.).  The amended complaint asserts three causes of action based on hostile work environment,
constructive discharge and failure to promote.
DISCUSSION
On a motion to dismiss the complaint “the sole criterion is whether the pleading states a cause
of action, and if from its four comers factual allegations are discerned which taken together manifest
any cause of action cognizable at law a motion for dismissal will fail” (Guggenheimer v Ginzburg,
43                                                                                                           268,275; see also Wiener v                                                                 Co., 241                                         114, 120). All of the factual
2




[* 4 ]
allegations of the complaint are assumed to be true (see                                                v Grossman, 24                                                                     and the
complaint is to be interpreted in a fair and reasonable manner (see Williams v Williams, 23
592).
Statute of Limitations
Defendants contend that the amended complaint should be dismissed because by failing to
provide specific dates for the alleged discriminatoryincidents, the complaint merely                    the same
time-barred allegations plead in the original complaint.
It is uncontested that the claims alleged in the amended complaint are governed by a three-
year statute of limitations (see CPLR § 214                                                             v State, 62                                                                        442, 447).  Discrete
discriminatory acts such as constructive discharge and failure to promote are not actionable if
barred, even when they are related to acts alleged in a timely manner (Elmenayer v
Inc., 3 18 F3d 130). On the other hand, a claim for hostile work environment, which is subject to the
continuing violation doctrine exception, involves a series of separate acts which “collectively
constitute” an                                                                                          employment practice, and will not be time-barred if all of the acts constituting
the claim are part of the same unlawful practice and at least one discriminatory act falls within the
filing period (Elmenayer v ABF Freight                                                                  Inc., 3 18 F3d at 134). In this regard, the court must
examine whether acts about which plaintiff complains are part of the same actionable hostile work
environment practice, and if so, whether any acts fall within the statutory period (National R.R.
Passenger Corp.                                                                                         536 US 101). Events which fall outside the limitations period for the
purposes of the hostile work environment claims, “may be considered as evidence of discriminatory
atmosphere to the extent that they amount to intolerable working conditions” (see Parker v
3




[* 5 ]
Carp., 929 FSupp 162, 164, citing United Air Lines Inc. v Evans, 43 1   US 553, 558; Malarkey v
Texaco, 983 F2d 1204, 1210-121 1).
Human Rights Law
A.                                                                                                            Hostile Work Environment
The first cause of action of the amended complaint alleges a claim for hostile work
environment. Plaintiff contends that prior to and continually after April 2, 1999, through plaintiffs
retirement on January 28, 2003, he was subjected to the following conditions based on his gender:
(1) plaintiffs work station was isolated and segregated from his similarly situated female colleagues;
(2) plaintiff was forced to share an                                                                          with another male, while his similarly situated female
colleagues each had larger, private workstations or offices; (3) when the department decided to
relocate, a floor plan was posted for new office space indicating that plaintiff would be kept
segregated from his female colleagues; and (4) defendants repeatedly failed to promote
Plaintiff further alleges that unlike his female counterparts, he was (1) given less favorable work
assignments; (2) not permitted to participate in certain prestigious work such as search committees;
(3) denied the ability to select support staff to assist in his duties; and (4) in November 2001, plaintiff
was asked to assume an additional workload, including the majority of the duties and responsibilities
previously performed by co-worker Doretha Custis, who had recently retired. Plaintiff                         claims
that these conditions constituted a hostile work environment. Here, plaintiffs allegation that the
discriminatory acts occurred prior to April 2,1999 and continued through January 28,2003 renders
his hostile work environment claim timely.
New York State Human Rights Law provides in relevant part that                                                shall be unlawful for
4




[* 6 ]
an employer * * * because of * * * sex                                                                     * * of any individual, * *  to discriminate against such
individual in compensation or in terms, conditions or privileges of employment" (N.Y. Exec. Law
296 [ 13 [a] ). When determining claims under the New York Human Rights Law, New York courts
generally rely on federal law                                                                              Ford, Lincoln-Mercury,                                                                                175                                                                795,
802 n 3, lv to appeal denied, 94                                                                                                                                                                                 753; see also, Miller Brewing Co. v State Div. of Human
Rights, 66                                                                                                 937).  In order to state a claim for hostile work environment, the complaint must
                                                                                                           allege: (1) that the plaintiff is a member of a protected class; (2) that the conduct or words upon
                                                                                                           which the alleged harassment is predicated were unwelcome; (3) that the conduct or words were
                                                                                                           prompted simply because of the plaintiffs gender; (4) that such conduct or words created a hostile
work environment which                                                                                                                                                                                           a term, condition or privilege of the plaintiffs employment; and
(5) that the defendant is liable for such conduct (see Trotta                                                                                                                                                    Oil Corp., 788 FSupp 1336;
Danna v New York Telephone Co., 752 FSupp. 594; Kotcher v Rosa and Sullivan Appliance
Inc., 957 F2d 59;                                                                                          v Manhattan Ford, Lincoln-Mercury,                                                                    175                                                                at 802).  A
plaintiff must either demonstrate that   single incident was extraordinarily severe, or that a series of
incidents were 'sufficiently continuous and concerted' to have altered the conditions of her working
environment."                                                                                              v Coach Stores, 202 F3d 560,570 quoting Perry v Ethan Allen, Inc., 115 F3d
143, 149). Moreover, a hostile work environment exists when, as judged by a reasonable person, the
workplace "is permeated with 'discriminatory intimidation, ridicule, and insult' that is sufficiently
severe or pervasive to alter the conditions of the [plaintiffs] employment'                                (see Harris v
Systems, Inc. , 5 10 US                                                                                    1, quoting, Meritor                                                                                   Bank v Vinson, 477 US                                              v Seiler
Corp., 66 F3d 1295, 1304). Here, assuming the truth of the facts pleaded, and giving plaintiff the
benefit of every favorable inference, the court finds that the allegations regarding defendants do not
5




[* 7 ]
rise to the level of being "severe or pervasive" so as to constitute a hostile work environment based
on gender (see Meritor                                                                                   Bank v Vinson, 477 US at 65).  Accordingly, plaintiffs hostile work
environment claim against defendants must fail.
B.                                                                                                       Constructive Discharge
In the second cause of action plaintiff contends that the defendants' actions "made [his]
working conditions so intolerable that he was forced to involuntary retire [on] January 28,
To state a cause of action for constructive termination, plaintiff must allege facts that support an
inference that the employer deliberately created working conditionsthat were so intolerable, difficult
or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign
                                                                                                         Co., 995 F2d 355,361; see also Vorel v NBA Prop., Inc. 285            641,
642;                                                                                                     Co. v Fitzmaurice, Inc., 234                                          200,203). "Deliberate" is something
                                                                                                         lack of concern, and beyond "mere negligence or ineffectiveness"      v
Food Specialists, Inc., 223 F3d 62, 74).  The court finds that the offensive incidents alleged by
plaintiff cannot, as a matter of law, form the basis for a constructive discharge claim.
Failure to Promote
In the third cause of action plaintiff alleges a claim for failure to promote on the basis of
gender. To establish a prima facie claim for failure to promote plaintiff must show that he "applied
for an available position for which [he] was qualified, but was rejected under circumstances which
give rise to an inference of unlawful                                                                    (Texas Dept. of Community                                             v
450 US 248, 253).  Here, the amended complaint alleges that from April 2,  1999 through his
6




[* 8 ]
retirement on January 28,2003, plaintiff was continually denied a promotion to the position of HEO;
that since April 2, 1999, plaintiff has informed his supervisors that he wished to be promoted to the
position of HEO; that plaintiff was qualified for a promotion to said position; that in May 2001,
plaintiffs direct supervisor, Sam Phillips, informed plaintiff that he was a valued employee; that
Phillips recommended that plaintiff be promoted, but Malone and Waters                                       to authorize a
promotion; that promotions were not made through a post and apply system; that Malone and Waters
repeatedly promoted the female employees; that just prior to his retirement on January 28, 2003,
plaintiff was one of three male professional                                                                 out of approximately eight to ten similarly
situated employees; that one male employee, Mark Smolensky, was hired in 2000; that another male
employee, Ron Knight, was hired in November 2002, after this lawsuit was filed; that Linda Dunn
whose job functions were similar to plaintiffs, was appointed to the position of HEO;that plaintiff
who has a masters degree in Industrial and Labor Relations in Human Resources, had more
experience and seniority than Dunn; that Prem Agarwal whose job functions were also similar to
plaintiffs, was appointed to the position of HEO; that plaintiff who trained Agarwal was equally if
not more qualified for said position; that after Agarwal retired, another female, Maureen Kast, was
hired to replace her; that although plaintiff received salary increases, he never received a discretionary
merit salary increase like his female co-workers; that plaintiff has suffered a loss of monetary benefits,
in addition to suffering physical and emotion pain.
In reply defendants contend that of the five discriminatory                                                  appointments alleged in the
amended complaint, three are time-barred, and the remaining two appointments were issued to
7




[* 9 ]
individuals  who  happen‘ to  be  male.  In  support  of its  contentions defendants  submit  the
uncontroverted affidavit   its Director of Central Office Human Resources, Sonia S.                      who
affirms that the individuals named in the amended complaint were either hired or appointed to the
position of                                                                                              on the following dates: (1) Linda Dunn, appointed November 1,  1992; (2) Prem
Agarwal, appointed July 1, 1994 (retired January 3 1, 1998); (3) Maureen Kast, appointed May 11,
1998; (4) Mark Smolensky, hired December 10, 1999; (5) Ron Knight, hired November 1, 2002.
Pearons                                                                                                  affirms that she obtained the foregoing information from her personnel records and
said information is available to the public upon request.
Here, plaintiff has failed to show that during the period April 2, 1999 to January 28,
2003, defendants discriminated against him     by                                                        to promote him to the position of
                                                                                                         because of his gender. The discriminatory acts complained of, that plaintiff was denied a promotion
to the position of                                                                                       while three females in his office who did not have his seniority or experience
                                                                                                         were appointed to said position, occurred more than three years prior to the filing of the original
                                                                                                         complaint. As such, plaintiffs allegations concerning Dunn, Agarwal and Kast cannot serve as a basis
for plaintiffs failure to promote claim and are therefore time-barred (see                               v                                                                                                      Morgan
288                                                                                                      6).  Although plaintiff alleges that just prior to his retirement on January 28,
2003,                                                                                                    office employed only three males in a department of approximately eight to
ten employees, this without more, is insufficient to support a claim for failure to promote based on
gender. In order to be legally sufficient, a pleading must contain factual allegations, which indicate
the existence of a cause of action, and conclusory statements unsupported by such factual allegations
8




[* 10 ]
will not be deemed sufficient (see                                                                                                                            v Giannoccaro, 98                                                                            103, appeal dismissed 68
                                                                                         v Interboro-Mutual Ind. Ins. Co., 73                                                                                                                              819). Accordingly, the third cause of action
does not set forth an actionable claim.
                                                                                                                                                              With respect to plaintiffs claim that Malone and Waters are liable under Executive Law       296
( 6 )for aiding and abetting                                                                                                                                  discriminatory conduct, as plaintiffs cause of action for failure
                                                                                         to promote fails, so does his claim against Malone and Waters (see                                                                                                v US Electronics Inc.,
270                                                                                      188; Murphy v Era United Realty, 25 1                                469,472).
                                                                                                                                                              With respect to plaintiffs contention that he should be allowed to conduct discovery in an
effort to uncover                                                                                                                                             evidence to support his claims, plaintiff has failed to demonstrate that facts
                                                                                         “may exist” to defeat the motion (see Peterson v Spartan Ind., 33                                                                                                 463,467).
Accordingly, defendants’ motion to dismiss is granted.  The Clerk shall enter judgment
dismissing the complaint. This constitutes the decision and order of the court.
J.S.C.
9

Download 2003_30185.pdf

New York Law