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HODGE v. NEW YORK COLLEGE OF PODIATRIC MED.

September 16, 1996

DR. WILLIAM HODGE, Plaintiff,
v.
THE NEW YORK COLLEGE OF PODIATRIC MEDICINE, Defendant.



The opinion of the court was delivered by: JONES

 BARBARA S. JONES, U.S. District Judge:

 Plaintiff brought this action pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA") 29 U.S.C. § 621, et seq. Before the Court is defendant's motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), on the grounds that plaintiff's claim is time-barred. For the reasons set forth below, defendant's motion is granted.

 Background1

 On or about July 6, 1992, plaintiff entered into a two-year contract for a term beginning July 1, 1992 and terminating on June 30, 1994 (the "July 1992 contract"). This contract specifically provided that plaintiff's contract would be renewed at its termination subject to plaintiff's agreement and other factors. These factors include "the College's evaluation of your professional performance, the needs of the College and the Clinic, the availability of funds, and your compliance with the applicable credentialing standards." Compl. P 13.

 The July 1992 contract was consistent with defendant's Faculty Manual then in effect, which provided that professors who have two-year employment contracts must have those contracts renewed unless there is specific cause not to renew. The manual states that "the burden of proof in establishing cause for dismissal or non-renewal of greater than one year contracts rests upon the College." The manual then lists eight reasons which constitute sufficient cause, including dishonesty in teaching, neglect in academic duties, personal conduct which impairs the individual's fulfillment of his College responsibilities, and falsification of credentials. The Manual also provides that a faculty member may appeal a determination made against him to the Hearing Committee of the Faculty Council.

 Plaintiff received a review from defendant in or about February 1993 which revealed that plaintiff's performance was "exceeding expectations." Notwithstanding plaintiff's excellent review, during the February 1993 meeting with plaintiff, Dr. Robert Bressler, Assistant Dean of the Division of Basic Sciences for defendant advised plaintiff that his salary was too high because of his many years of service, that he wanted to cut plaintiff's position and salary in half, and that his contract would not be renewed beyond June 30, 1995. Dr. Bressler further told plaintiff that with the salary that plaintiff was earning defendant could hire two faculty members. Dr. Bressler's position was memorialized in a letter dated February 10, 1993, which was not received by plaintiff until February 17, 1993. Because defendant was required to have cause in order not to renew plaintiff's contract, *fn2" plaintiff rejected defendant's proposal to reduce his duties and salary by one-half.

 In response to plaintiff's rejection of that offer, defendant advised plaintiff in a letter dated March 3, 1993, that plaintiff's July 1992 contract would not be renewed. The letter does not state a reason for the non-renewal, nor was plaintiff orally advised of any reasons for the non-renewal.

 On or about June 28, 1993, defendant announced that salary increases would become effective on July 1, 1993. Plaintiff had always received, at a minimum, a cost of living increase. Plaintiff alleges that although his colleagues received a cost of living increase adjustment, plaintiff did not.

 On or about July 1, 1993, defendant submitted a new contract (the "July 1993 contract") to plaintiff which provided that plaintiff would be retained for one year after the 1994 expiration of the July 1992 contract, and that his services could be revoked at the will of defendant without the need to show cause. Believing that defendant was discriminating against plaintiff based on his age, plaintiff refused to sign the July 1993 contract.

 On or about September 1, 1993, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC").

 Plaintiff met with Dr. Bressler and Dean Trepal on October 12, 1993, and October 20, 1993. Plaintiff alleges that they informed him that "if he did not sign the July 1993 contract that the situation for plaintiff would get nasty." According to the complaint, on both occasions, Dr. Bressler specifically told plaintiff that "if he did not sign that contract that cause could always be found to support a termination, such as by ...


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