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November 14, 1997

NICOLA TAVOLONI, Plaintiff, against MOUNT SINAI MEDICAL CENTER, et al., Defendants.

The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 This case calls upon the Court to revisit a field that, for the most part, has lain fallow since the era of widespread campus unrest that attended the Vietnam war -- the circumstances in which the actions of a private educational institution amount to state action for purposes of 42 U.S.C. § 1983 and the Constitution, albeit in the context of personnel action taken with respect to a faculty member rather than disciplinary action taken against allegedly disruptive students.

 Plaintiff, a professor of medicine at the Mount Sinai School of Medicine, claims that he has been constructively discharged by Mount Sinai and that the school has violated his rights under the First, Fifth and Fourteenth Amendments in addition to federal statutes and state law. The defendants just as stoutly maintain that the federal claims all are without merit because, among other reasons, Mount Sinai is not a state actor and that the pendent state law claims also should be dismissed.


 As will appear in greater detail below, the complaint asserts broadly that the Mount Sinai School of Medicine ("Mount Sinai") *fn1" cut plaintiff's salary substantially and otherwise subjected him to harassment, all in violation of his First, Fifth and Fourteenth Amendment rights, 42 U.S.C. §§ 1983 and 1985(3), the Employee Retirement Income Security Act ("ERISA") and principles of contract law. Plaintiff proceeds on the theory that Mount Sinai "is part of the New York City University system . . ." *fn2" This indeed is the only allegation of state action in the complaint.

 Procedural Posture

 The defendants have moved to dismiss the complaint pursuant to Rule 12(b)(6) on the ground that it fails to state a claim upon which relief may be granted. However, they dispute the assertion that Mount Sinai is part of the City University and have submitted an affidavit of Barbara Barish, who is Mount Sinai's Vice President, Academic Administration, in support of their contention that Mount Sinai is not a state actor for purposes of this action. Accordingly, the Court notified the parties, as authorized by Rule 12(b), that it would convert the motion, insofar as it involved the state action issue, into a motion for summary judgment and consider the Barish affidavit and the exhibits thereto. It afforded the plaintiff an opportunity to submit any additional evidentiary material. Plaintiff responded with a letter from counsel, which sought an opportunity for discovery and reargued the motion at length, but submitted no additional evidence. Accordingly, that portion of defendants' motion which asserts that the complaint must be dismissed because there is no state action is considered according to the standard governing motions for summary judgment. The remainder of the complaint is assessed by the standard governing motions to dismiss for legal insufficiency.

 Plaintiff's Factual Allegations

 Plaintiff Nicola Tavoloni has been affiliated with Mount Sinai since 1980 and became a tenured professor in 1990. *fn3" It is undisputed that Dr. Tavoloni, during the early years of his affiliation with Mount Sinai, was a successful and, perhaps, distinguished researcher in the field of liver disease. *fn4" He contends, however, that Dr. Paul D. Berk, M.D., chief of the division of liver disease in the department of medicine, the division in which Dr. Tavoloni worked, began to disrupt his research endeavors and to harass plaintiff in 1992. *fn5" The alleged problem, which appears to have begun with disputes concerning laboratory facilities, festered. *fn6" According to the complaint, Dr. Berk informed plaintiff in early 1995 that plaintiff's salary would be cut if he did not obtain a new research grant. *fn7" Plaintiff rejoined that such action would be illegal and caused his counsel to approach the chairman of the department of medicine. *fn8"

 In the summer of 1996, plaintiff submitted a new grant application, which was signed both by Dr. Tavoloni and on behalf of Mount Sinai, to the National Institutes of Health ("NIH"). Although plaintiff's salary at the time allegedly was about $ 75,000 per annum, the document stated that his base salary was $ 109,584. *fn9" Plaintiff alleges that Mount Sinai indicated to him that his salary would be restored to that level if the grant were forthcoming. *fn10"

 The dispute reached its pre-litigation height in early 1997 when plaintiff's salary was cut to about $ 48,000 per annum, which plaintiff -- although still employed by Mount Sinai -- asserts constituted a constructive discharge from his tenured position. *fn11" He claims also that Dr. Berk has "continued a pattern of harassment and has created a hostile work environment, including threats to terminate plaintiff as a tenured professor." *fn12"

 The complaint attaches voluminous exhibits, including correspondence between Dr. Berk and Dr. Tavoloni. These documents reveal at least part of Mount Sinai's side of the story: that Dr. Tavoloni insisted on changing his area of research focus to one in which he had little experience, that he consequently lost grant support for his efforts, that he has been entirely uncooperative in working with Mount Sinai to deal with a radically changed environment in which funds for medical research had become more scarce, and that he has withdrawn from medical school affairs and become exceptionally contentious and hostile. While it is at least arguable that the attachment of these materials to the complaint permits the Court to consider them for all purposes on this motion. *fn13" it is unnecessary to do so in order to resolve the case. Accordingly, the Court has disregarded them except insofar as they support plaintiff.

 Plaintiff's Legal Theories

 The complaint contains six causes of action. The first maintains that the salary cut and harassment constituted a constructive discharge of plaintiff without due process of law and violated the First, Fifth and Fourteenth Amendments. *fn14" The salary cut is alleged also to have violated the Equal Protection Clause on the theory that others similarly situated were not so treated. *fn15"

 The third cause of action asserts that the defendants -- Mount Sinai, the Mount Sinai Medical Center, and Dr. Berk -- have conspired to deprive plaintiff of his constitutional rights in violation of 42 U.S.C. § 1985(3), one of the Reconstruction Era civil rights statutes.

 The fourth and fifth causes of action allege breach of plaintiff's employment contract and breach of his rights as an alleged third-party beneficiary of a 1989 NIH grant, respectively. Finally, the sixth cause of action contends that plaintiff's salary cut and other actions were designed to interfere with his rights under the Mount Sinai Sheltered Annuity Plan by reducing Mount Sinai's contributions to the plan in consequence of plaintiff's reduced salary. *fn17" This is said to have violated ERISA.

 State Action

 The facts pertinent to the state action issue are set forth in the Barish affidavit and the exhibits thereto and are undisputed.

 Mount Sinai is an academic, not for profit corporation chartered by the Board of Regents of the State of New York. *fn18" It is governed by a board of trustees. *fn19" Plaintiff's misconception that it is part of the City University of New York ("CUNY") no doubt arises from a 1967 affiliation agreement between Mount Sinai and the Board of Higher Education in the City of New York (the "Board") pursuant to which Mount Sinai agreed to change its full name to Mount Sinai School of Medicine of The City University of New York. *fn20" And it is the terms of that agreement that are critical to the resolution of this issue.

 The CUNY Affiliation Agreement

 The stated purpose of the affiliation agreement was to extend CUNY's offerings in the health sciences and to afford a number of benefits to Mount Sinai. *fn21" Its key provisions are as follows:

 1. Mount Sinai agreed to maintain and operate a medical school sufficient to secure appropriate accreditation. The Board in turn agreed that CUNY, "subject to financial ability and space limitations," would provide academic programs leading to M.S. and Ph.D. degrees in physics, chemistry and certain other fields to students completing the appropriate programs at CUNY and at Mount Sinai. *fn22"

 2. The parties agreed to establish, "insofar as practicable," a common academic calendar and combined academic programs. *fn23"

 3. Each party agreed, "subject to financial ability and space limitations," to admit qualified students from the other institution to its courses and to allocate fees in respect of such cross-registration. *fn24"

 5. Paragraph 5 provides as follows:

"The [City] University shall have the responsibility and authority to approve all courses and curriculums [ sic ], and appointments, reappointments, promotions, the designation of persons as department chairmen, and the granting of tenure to all members of the faculty of Mount Sinai except those designated as 'clinical.' It is the intent of this paragraph to give the University the responsibility and authority to approve the status of all faculty except for those in the non-basic science areas who are serving on a part-time basis. Such approval shall be given by a Review Committee consisting of the Chancellor of the City University, the Dean of Graduate Studies of the City University, and ...

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