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October 7, 1998

JAMES F. CURLEY, Plaintiff, against ST. JOHN'S UNIVERSITY, Defendant.

The opinion of the court was delivered by: MOTLEY


 Motley, J.


 Plaintiff James F. Curley sued his employer, defendant St. John's University ("University"), claiming that his new assignment to teach undergraduate rather than graduate courses in the fall of 1996 constituted age discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., the New York State Human Rights Law ("State HRL"), N.Y. Exec. L. § 290 et seq., and the New York City Human Rights Ordinance ("City HRO"), N.Y. City Admin. Code § 8-101 et seq. The University moved for summary judgment under Fed.R.Civ.Proc. 56. The motion is denied because, for the reasons given below, a reasonable fact finder could conclude that the change in Dr. Curley's teaching assignment was a material adverse employment action and that age was a motivating factor in the University's decision to take that action.


 A. Undisputed Facts

 Dr. James F. Curley is a tenured professor in the Department of Psychology ("Department") in the University's academic unit, St. John's College of Liberal Arts and Sciences ("College"). As of July 23, 1998, Dr. Curley was 62 years old. Initially hired by the University as an Assistant Professor of Psychology in 1973, Dr. Curley was given tenure in 1978. Dr. Curley has not supervised a dissertation since 1988, has not requested any research grants recently, and with the exception of a two-page newsletter has not published since 1990. See Def. Ex. 5; Tr. Summ. J. Hr'g (hereinafter, "Tr.") 53-56. All University faculty, except those at the law school, are represented by a labor organization, the St. John's chapter of the American Association of University Professors -- Faculty Association at St. John's University (the "Faculty Union"), and have signed a collective bargaining agreement. See Def. Ex. 2.

 Dr. Raymond DiGiuseppe is a tenured Department faculty member and is Director of the Graduate School Psychology Program ("Program"). The Program now offers a Master of Science degree, having discontinued its doctoral program in or around 1984. Until September 1987, when Dr. DiGiuseppe was hired as a faculty member and Director of the Program, Dr. Curley was the only Department faculty member who had been assigned core School Psychology courses. In February 1996, the University submitted a proposal to the New York State Education Department for approval of a Psy.D. doctoral degree program in School Psychology.

 In the spring of 1996, Dr. Curley requested to teach three graduate courses in the fall 1996 semester: Psychology 715, Psychology 726, and Psychology 752. Each semester, the preliminary teaching schedule at the University is considered by the Personnel & Budget Committee ("P&B Committee"), a peer review committee composed solely of the Department Chair and four elected faculty members. The P&B Committee recommends a teaching schedule to the Dean of the College. The graduate teaching schedule is also reviewed by the Dean of the Graduate School of Arts and Sciences. The members of the P&B Committee in 1996 were Dr. Raymond DiGiuseppe (then age 47), Dr. Jeffrey Fagen (then age 47), Dr. John Hogan (then age 45), Dr. Jeffrey Nevid (then age 45), and Dr. Alice Powers (then age 52).

 Dr. DiGiuseppe submitted to the P&B Committee a memorandum, dated June 13, 1996, summarizing complaints he reported that he received about Dr. Curley's teaching and academic credentials. See Def. Ex. 13. On or about June 18, 1996, Dr. Curley received a copy of the memo and a copy of letters written by graduate students criticizing his graduate teaching. In response, Dr. Curley gave the P&B Committee his own memorandum, dated June 28, 1996. See Def. Ex. 16. On July 11, 1996, Dr. Curley spoke at the meeting of the P&B Committee and distributed to it a package consisting of the first page of articles Dr. Curley gave students in his classes. See Def. Ex. 17. Dr. Curley did not mention age discrimination at the meeting.

 On July 15, 1996, the P&B Committee unanimously recommended a teaching schedule to the Dean of the College that assigned Dr. Curley to teach only undergraduate classes in the fall 1996 semester. The Dean accepted this recommendation. Dr. Curley received notification of this decision by letter dated July 15, 1996 and did not file a grievance challenging it. In the fall 1996 semester, the faculty who taught the graduate courses Dr. Curley had requested, Psychology 715, Psychology 726, and Psychology 752, were Dr. Lynne Thies (then age 46), Dr. Helen Stevens (then age 46), and Dr. Joseph Teta (then age 48), respectively.

 In a memorandum dated June 27, 1996, Dr. James Fagen and Dr. DiGiuseppe wrote to the Dean of Faculty, Reverend David O'Connell, in order to "bring to [his] attention several serious concerns [they] had about the behavior of Dr. James Curley." Pl. Ex. M. The Dean reports that he kept this letter in Dr. Curley's file but did not otherwise act on it:

As you are undoubtedly aware, the Psychology Department Personnel & Budget Committee is currently reviewing several complaints against Dr. Curley from current and former students in the graduate program in school psychology, as well as from externship and internship supervisors connected with this program. These complaints deal with the ability of Dr. Curley to effectively teach graduate courses in school psychology. The Committee intends to determine whether to continue to assign graduate courses to Dr. Curley. The material presented below is separate from that issue and, we believe, raises serious questions about whether Dr. Curley should be permitted to continue as a faculty member at the University. We have grouped the instances of unprofessional behavior on the part of Dr. Curley into three categories: Unprofessional Conduct with Faculty, Unprofessional Conduct with Graduate Assistants, and Unprofessional Conduct with Other Graduate Students. Id.

 B. Disputed Facts

 1. The University's Case

 As evidence of Dr. Curley's unsatisfactory performance, the University offers the following complaints about Dr. Curley. First, experts in the field from outside the University criticized his work. Academic experts evaluating the University's prospects for approval of a doctoral program found his credentials substandard, writing that his "record of academic scholarship would be judged below expectations for faculty at his rank and years of experience." Def. Ex. 12, at C1126. School psychologists from at least eight Nassau County schools who supervised Dr. Curley's graduate students complained that they had to teach those students basic skills that Dr. Curley should have taught them. See Def. Ex. 13, at C39-40.

 Second, numerous graduate students voiced various criticisms of Dr. Curley's teaching. In letters to Dr. DiGiuseppe, they complained that Dr. Curley: "arrived late to every single class session," Def. Notice Mot. Summ. J., Bologna Aff., Ex. 1; "spent two hours filling us in on his opinion of current events" rather than cover syllabus material, id.; cut classes short and "warned his students not to complain" about it, Def. Notice Mot. Summ. J., Boyce Aff., Ex. 1; "rarely provided students with recent literature," Def. Ex. 38, Casale Letter; and failed to teach students adequately how to administer, score, or interpret personality tests, see Def. Notice Mot. Summ. J., MacEwan Aff., Ex. 1. There also were criticisms from graduate assistants, see Tr. 65, and undergraduate students, see Def. Ex. 14.

 Third, faculty members complained that Dr. Curley's was ineffective as a core course instructor, signed off on incorrect diagnoses prepared by his students, and allowed students to make errors in scoring tests in clinical settings. See Def. Exs. 7, 8, 13. In a letter to Dr. Curley informing him of the teaching assignment change, Dr. Jeffrey Fagen, a professor who chaired the Department and served on the P&B Committee, closed by writing:

You have played a major role in school psychology at St. John's University for many years. The committee regrets having to take the action we have taken. However, we have concluded that the educational, ethical, and legal implications are so overpowering, we have no choice. Def. Ex. 18.

 These shortcomings were legitimate grounds for action, the University contends, because the collective bargaining agreement requires Dr. Curley "to be an effective teacher and scholar." Def. Ex. 7 Colo. 113, 2 P 10.4(b). More specifically, the agreement provides that "the faculty member recognizes that effective teaching requires continued research as well as continued improvement of pedagogical methods." Id. P 10.4(c). Alteration of Dr. Curley's course load was an appropriate response to his failure to meet these standards adequately, the University asserts.

 The allegedly discriminatory statements by Dr. DiGiuseppe, the University argues, are immaterial for two reasons. First, the statements do not reflect age animus. Rather, they are a combination of harmless comments and criticisms of Dr. Curley that focus on his shortcomings, not his age. Second, any discriminatory comments by Dr. DiGiuseppe are mere stray remarks. A faculty peer of Dr. Curley with a very limited role in any University actions, Dr. DiGiuseppe is not enough of a decision-maker for his comments to show University motives. Rather, Dr. DiGiuseppe is only a "peer" of Dr. Curley, Tr. 31, while "the dean makes the final decision, so it is the dean who is the decision-maker," Tr. 63.

 2. Dr. Curley's Case

 Dr. Curley argues that the change in his teaching assignments was adverse because "graduate professors are held in higher esteem, ... get better paying jobs," and teach fewer and less favorable hours than undergraduate professors. Tr. 14. Dr. Sharon-ann Gopaul-McNicol, a full-time Assistant Professor of Psychology in the Program from 1993 to 1996, concurs:

There is no question that full time professional academicians, including myself, distinguish between teaching at the graduate level versus teaching at the undergraduate level. Professionally, when a faculty member teaches graduate courses, he/she is better recognized in the profession, which can lead to better career and consultation employment opportunities.... Removing a faculty member from graduate courses and assigning him/her to exclusively teach undergraduate courses was considered as a disciplinary punishment. Pl. Ex. G P 17.

 The substance of the work also differs in a manner relevant to Dr. Curley's field of expertise. "At St. John's you can only teach 'School Psychology' at the graduate level." Id.

 As support for his allegation of age-based animus in the University's decision-making, Dr. Curley offers his deposition and the affidavit of Dr. Gopaul-McNicol. Dr. Curley stated in his deposition that Dr. DiGiuseppe asked whether Dr. Curley was going to "stick around" after his sixtieth birthday, queried "why would you want to stay around here after you are 60?," and opined that "when you hit the big 60 you are over the hill." Pl. Ex. I, at 338, 351, 353. Dr. Curley claims that age bias led the University to seek his retirement by worsening his schedule.

 Dr. Gopaul-McNicol agreed with Dr. Curley:

There was age animosity directed toward older/senior faculty at the Psychology Department by the Administration. In 1994, the Chairman, Dr. Fagen, discouraged me from socializing with older/senior faculty. I observed that older faculty members were shunned by the Administration. On many occasions, Dr. DiGiuseppe would refer to Dr. Curley's age, pointing out that he could write about the history of the School Psychology, since Dr. Curley ...

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