and Fourteenth Amendments that properly form the basis for her § 1983 claims. Item 52, pp. 11-13.
It is well established in the Second Circuit that "'a § 1983 claim is not precluded by a concurrent Title VII claim, when the former is based on substantive rights distinct from Title VII.'" Saulpaugh v. Monroe Community Hospital, 4 F.3d 134, 143 (2d Cir. 1993) (quoting Carrero v. New York City Housing Authority, 890 F.2d at 576), cert. denied, 127 L. Ed. 2d 539, U.S. , 114 S. Ct. 1189 (1994); see also, Gierlinger v. New York State Police, 15 F.3d 32, 34 (2d Cir. 1994). "A plaintiff cannot use Section 1983 to gain perceived advantages not available to a Title VII claimant, but [she] can assert a claim under Section 1983 if some law other than Title VII is the source of the right alleged to have been denied." Saulpaugh v. Monroe Community Hospital, 4 F.3d at 143 (citations omitted); see also, Moche v. City University of New York, 781 F. Supp. at 167-69 (partial foreclosure of § 1983 claims by Title VII in a case involving allegations of discriminatory conduct in an academic setting).
In contrast, a number of courts have held that the ADEA provides the exclusive federal remedy for claims of age discrimination in employment, precluding such claims under § 1983. The Second Circuit has not yet addressed this issue. The leading Court of Appeals case is Zombro v. Baltimore City Police Department, 868 F.2d 1364 (4th Cir.), cert. denied, 493 U.S. 850, 107 L. Ed. 2d 106, 110 S. Ct. 147 (1989), in which a Fourth Circuit panel held, in a split decision, that actions under § 1983 based on claims of age discrimination are foreclosed by the ADEA. Id. at 1369. At least two district courts in this circuit have followed the Zombro majority decision. See Gregor v. Derwinski, 911 F. Supp. 643 (W.D.N.Y. 1996); Reale v. Jenkins, 1993 WL 37091 (S.D.N.Y.). See also, Tranello v. Frey, 758 F. Supp. 841, 850-51, n. 3 (W.D.N.Y. 1991) (stating that the ADEA "provides the exclusive remedy for age discrimination claims," without reference to Zombro), aff'd, 962 F.2d 244 (2d Cir.), cert. denied, 506 U.S. 1034, 121 L. Ed. 2d 686, 113 S. Ct. 813 (1992). However, the issue has recently been reconsidered in great detail in Mummelthie v. City of Mason City, Iowa, 873 F. Supp. 1293, 1312-29 (N.D.Iowa 1995). In Mummelthie, the court rejected the Zombro majority's analysis and concluded that "where the facts giving rise to [an] ADEA violation also give rise to a violation of an independent federal right, secured by statute or the Constitution, a plaintiff may pursue either the ADEA or § 1983 remedy or both." Id. at 1328. In view of the court's reasoning in Mummelthie, and of the rationale behind the Second Circuit's holding in Saulpaugh that claims under § 1983 are not precluded by concurrent Title VII claims, this court finds that the ADEA does not preempt concurrent claims of age discrimination in employment under § 1983, when the § 1983 claims are based on substantive rights distinct from those established under the ADEA.
Here, the plaintiff has alleged that the defendants have violated her rights under the First, Fifth, and Fourteenth Amendments. To the extent that her allegations describe cognizable violations of those Constitutional provisions, distinct from rights exclusively protected by Title VII or the ADEA, her § 1983 claims may stand.
Neither the defendants nor the plaintiff have provided the court with any legal analysis of whether the factual allegations in the plaintiff's second amended complaint are sufficient to sustain § 1983 claims based upon violations of the First, Fifth, and Fourteenth Amendments. A review of the original, first amended, and second amended complaints, however, indicates that from at least the time that the first amended complaint was filed in June 1988, the defendants have been on sufficient notice that the plaintiff has been seeking to pursue equal protection, freedom of speech, and due process claims under § 1983. The defendants have had ample time for discovery, and have brought no motion for summary judgment. The court is not prepared to dismiss the § 1983 claims on a Rule 12(b)(6) motion at this time. The plaintiff must be allowed to bring those claims to trial.
Having said that, the court notes that the Eleventh Amendment bars the § 1983 claims against SUNY and SUNYCB. See Dube v. State University of New York, 900 F.2d at 594-95.
The claims against those defendants must be dismissed. However, insofar as the plaintiff has brought § 1983 claims for prospective relief against the individual defendants in their official capacities, or has stated claims against them personally, those claims may remain. Id. at 595.
5. Human Rights Law Claims Against the Individual Defendants
The defendants contend that the plaintiff has failed to state a claim under the HRL against all but one of the individual defendants, former President Johnstone, in this case. Item 51, pp. 9-12. The plaintiff concedes that she has no claim under the HRL against one of them, Associate Vice-President Feal, and wishes to withdraw that claim. However, she maintains that she has adequately stated a claim against the others. Item 52, pp. 13-15.
The HRL prohibits, inter alia, "employers" from engaging in a wide range of discriminatory practices. N.Y. Exec. Law § 296. Based upon the definition of "employer" in N.Y. Exec. Law § 292(5), the New York Court of Appeals has held that "an employee is not individually subject to suit under § 296 as an employer 'if he is not shown to have any ownership interest or any power to do more than carry out personnel decisions made by others.'" Tomka v. Seiler Corp., 66 F.3d at 1317 (quoting Patrowich v. Chemical Bank, 63 N.Y.2d 541, 542, 483 N.Y.S.2d 659, 473 N.E.2d 11 (1984)) (emphasis added). Focusing on this language, the individual defendants in this case, with the exception of Johnstone, argue that the HRL claims against them must be dismissed because the plaintiff has not alleged that any of them possessed the requisite authority to carry out the adverse personnel decisions about which she complains. Item 51, pp. 9-11. The plaintiff responds that they did indeed have control over the personal decisions concerning her, since "by nature of the chain of command and functioning of SUNY, the progressive levels of supervisory personnel, from department chairman on up, had direct impact on personnel policies [and] actions as they were applied to Plaintiff." Item 52, p. 14.
The plaintiff also cites § 296(6) of the HRL, which makes it unlawful "for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or to attempt to do so." N.Y. Exec. Law § 296(6). In Tomka, the Second Circuit referred with approval to several cases holding that, based upon this language, "a defendant who actually participates in the conduct giving rise to a discrimination claim may be held personally liable under the HRL." Tomka v. Seiler Corp., 66 F.3d at 1317. In the present case, the plaintiff maintains that she has adequately alleged participation of the individual defendants, with the exception of Feal, in the discriminatory acts about which she complains. Item 52, pp. 13-15.
The second amended complaint states the plaintiff's HRL claims against the individual defendants in only very general terms, and does not set forth the legal theory or theories under which the plaintiff believes those defendants may be held liable under the HRL. Nevertheless, upon review of the original, first amended, and second amended complaints, the court is satisfied that from the time of filing of the first amended complaint in June 1988, the individual defendants have been on sufficient notice that the plaintiff has been seeking to pursue HRL claims against them, based upon their capacity to make personnel decisions concerning her, and/or upon their participation in acts of discrimination. Again, the defendants have had much time for discovery, and have brought no summary judgment motion. The court will not dismiss the HRL claims against the individual defendants on a Rule 12(b)(6) motion at this time.
Pursuant to the plaintiff's request that she be allowed to withdraw her HRL claim against defendant Feal, that claim is dismissed with prejudice.
6. State Law Due Process Claim Against Individual Defendants Based Upon Breach of Contract
The second amended complaint alleges that by denying the plaintiff the use of accrued sick leave, the defendants breached the contract (collective bargaining agreement, cba) between the State and the plaintiff's union, thereby depriving the plaintiff of her property rights under the New York State Constitution, without due process. Item 45, P 48(1). The defendants maintain that the individual defendants were not alleged to be (and were not) parties to the cba, and so any claims against those individuals based upon a breach of contract theory must be dismissed. Item 51, pp. 12-13.
The plaintiff responds that the individual defendants were assigned by the State to implement the cba, that under the cba they had authority to make decisions on the employment conditions of employees, including the plaintiff, and they exercised that authority in their dealings with the plaintiff. They may therefore be held individually liable for any breach of contract resulting from their actions. The plaintiff cites no case law authority in support of this position. Item 52, pp. 15-16.
There is no merit to the plaintiff's argument. "It is hornbook law that a non-signatory to a contract cannot be named as a defendant in a breach of contract action unless it has thereafter assumed or been assigned the contract." Crabtree v. Tristar Automotive Group, Inc., 776 F. Supp. 155, 166 (S.D.N.Y. 1991). The plaintiff's allegations of breach of contract in this case might involve the individual defendants only insofar as those individuals affected the plaintiff's contractual rights under the cba in their official capacities as agents of SUNY and SUNYCB, and not in their personal capacities. And as the court has already held, supra, the plaintiff's breach of contract and related state law due process claims against the individual defendants, in their official capacities, must be dismissed for lack of jurisdiction under the Eleventh Amendment.
7. Breach of Contract Claim: Res Judicata and Collateral Estoppel
Since the plaintiff's breach of contract claim must be dismissed for lack of jurisdiction under the Eleventh Amendment, as discussed above, it is unnecessary to reach the defendants' res judicata and collateral estoppel arguments.
8. Intentional Infliction of Emotional Distress
In paragraph 48(3) of her second amended complaint, the plaintiff alleges that:
By continuous harm to her reputation and status, Defendants did and continue to cause Plaintiff extreme emotional distress thus depriving her of person and property all in contravention of the New York State Constitution.
Item 45, P 48(3). No such claim was included in her original or first amended complaints. The defendants characterize the claim, quite reasonably, as one for intentional infliction of emotional distress, and have moved to dismiss it, (1) for failure to state a claim (Item 51, pp. 15-17), and (2) because any such claim would be time-barred (id. at 17-18).
A claim of intentional infliction of emotional distress under New York law "has four elements: (1) extreme and outrageous conduct, (2) intent to cause severe emotional distress, (3) a causal connection between the conduct and the injury, and (4) severe emotional distress." Bender v. City of New York, 36 F.3d 57, 1996 WL 89353 at *3 (2d 1996) (citing Howell v. New York Post Co., Inc., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 353, 612 N.E.2d 699 (1993)). Here, the plaintiff has alleged, within the confines of the second amended complaint as a whole, a course of conduct by the defendants, collectively, that might, conceivably, sustain an emotional distress claim, at least against a Rule 12(b)(6) motion. However, she has provided no indication as to which of the individual defendants may have participated in the alleged wrongdoing, or in what way any of them might have been involved. Neither has she alleged that any of the defendants intended to cause her emotional distress. Her claim is therefore not sufficiently well articulated to give the individual defendants "fair notice of what [her] claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Had the plaintiff made clear in her earlier complaints that she wished to pursue an emotional distress claim, the defendants would have had the opportunity to explore, by way of a more timely motion to dismiss or for summary judgment, or through discovery, the basis for such a claim. That opportunity has passed. The claim must therefore be dismissed.
Since the plaintiff's emotional distress claim cannot be sustained for the reasons given above, it is unnecessary to reach the question of whether any such claim would be time-barred.
10. Fraud: Failure to State a Claim
In paragraph 48(2) of her second amended complaint, the plaintiff alleges that:
By fraudulently holding out in numerous public declarations, that Plaintiff was an accredited member of, Director of and signor of documents for the various Art Therapy units, Defendants have committed fraud, more specifically, by continuing to list her name in college catalogues and at the same time as Defendants forced Plaintiff onto sick leave, changed her status from paid employee to unpaid employee and even after notifying Plaintiff that she was terminated, by listing Plaintiff in the University publications and continuing to indicate to accrediting associations that Plaintiff was still responsible for her Art Therapy programs after Defendants had removed her as Director and changed contracts over her signature without her knowledge or consent and by misusing Plaintiff's medical reports to force her onto sick leave so as to avoid any questions about why there were differential assignments to male and female professors in the AED thus combining to deny Plaintiff the value of her person and professional reputation and deprive her of property in that her financial rewards were thus limited, all in contravention of her civil rights under the New York State Constitution.