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ROMAN v. CORNELL UNIVERSITY
June 30, 1999
DORIS ROMAN, PLAINTIFF,
CORNELL UNIVERSITY AND CLAUDE POUX, DEFENDANTS.
The opinion of the court was delivered by: McAVOY, Chief Judge.
MEMORANDUM — DECISION & ORDER
Plaintiff Doris Roman ("plaintiff" or "Roman"), who was fired
from her job with Defendant Cornell University ("Cornell"),
commenced the instant litigation against Cornell and her
supervisor, Defendant Claude Poux ("Poux"), alleging causes of
action for violations of her civil rights (42 U.S.C. § 1981),
discrimination (42 U.S.C. § 2000e, et seq.; N.Y.EXEC.LAW § 296
(the "Human Rights Law" or "HRL")), and state law claims for
breach of contract, negligent failure to supervise, failure to
investigate, and the intentional infliction of emotional
distress. Currently before the Court are defendants' motion to
dismiss the Complaint pursuant to FED.R.CIV.P. 12(c), or, in
the alternative, for summary judgment pursuant to FED.R.CIV.P.
56, and plaintiff's cross-motion for summary judgment.
Cornell operates a College of Engineering (the "College").
Within the College, Cornell has established the Engineering
Minority Programs Office ("EMPO"). The purpose of EMPO is to
recruit and retain minority students in the College. At all
times relevant hereto, Poux, an African American male, was the
director of the EMPO.
In December 1993, Cornell posted an opening for the position
of Assistant Director of the EMPO. After conducting a
nationwide search, on August 1, 1994, Cornell hired plaintiff,
a Hispanic female, as the Assistant Director of the EMPO. The
decision to hire plaintiff was made jointly by John Hopcroft
("Hopcroft"), Dean of the College; Mark Spiro ("Spiro"),
Associate Dean for Administration of the College; Gerald
Rehkugler ("Rehkugler"), Associate Dean for Undergraduate
Programs and Student Services; Deborah Cox ("Cox"),
then-director of the College's Human Resources department; and
Poux. See Def.Ex. E; Mar. 30, 1998 Roman Dep., at 84-99;
Cox.Aff., at ¶ 3, Def.Ex. F. Poux signed the actual letter
offering plaintiff the position and copied it to Cox, Hopcroft,
Rehkulger, and Donna Lawton. Plaintiff worked under the direct
supervision of Poux.
At the beginning of her employment at the EMPO, plaintiff had
a non-work related incident with Sonja Baylor ("Baylor"), an
African-American female, who was then working as an
administrative assistant in the EMPO. Baylor had sublet her
apartment to plaintiff, and a dispute ensued over extermination
costs. Although the source of this incident was not
work-related, it affected plaintiff's working relationship with
Baylor. See Oct. 19, 1998 Roman Dep., at 92-93. Apparently,
Baylor also was unhappy with the change in office structure,
which included the addition of plaintiff. Thus, there were some
tensions between plaintiff and Baylor from the beginning.
In October or November 1994, relationships in the EMPO began
to further deteriorate. Plaintiff had regular meetings with Cox
to discuss job-related concerns and, in particular, issues
relating to communications (or the lack thereof) within the
EMPO. Plaintiff felt that there were inadequate policies
governing the EMPO's operations and that she was frequently
excluded from certain office communications. During these
meetings, Cox discussed plaintiff's difficulties in meeting
certain job responsibilities, including writing reports and
grant proposals. Cox also counseled plaintiff on the
inappropriateness of using profanity in the office and in
electronic mail ("e-mail") messages.
Cox reported her displeasure with the use of profanity in the
office to Poux, who expressed similar concern. The EMPO staff
frequently used profanity in the office. In one instance,
Baylor used vulgar language with Poux. As a result, on October
28, 1994, Poux sent an e-mail to the EMPO staff (plaintiff,
Baylor, and Ann Hendricks ("Hendricks")) which read, in part,
I have been concerned about the level of
professional behavior in empo, and am taking this
opportunity to remind everyone of some pretty
basic ground rules for interaction:
1. Obscene gestures, particularly when directed at
an individual, are strictly prohibited.
2. Obscene language, especially when directed at
an individual, is absolutely unacceptable.
This is a serious issue. If there are infractions
. . . disciplinary action, as appropriate, will be
On November 11, 1994, Baylor and Hendricks complained to Cox
that plaintiff had an emotional outburst in the office, used
vulgar language, and threatened them with the loss of their
jobs (the "November 11 incident"). This incident was the result
of plaintiff having purchased a briefcase with the expectation
that the EMPO would pay for it, and her being informed that the
EMPO could not pay for the briefcase due to budgetary reasons
and that plaintiff would have to return the briefcase.
Plaintiff admitted that an incident occurred, but denied its
severity claiming that "[m]y tone and maybe choice of words may
have been misinterpreted[,] . . . [and that] I do not use that
kind of language in a professional environment." Def.Ex. T.
According to Cox, plaintiff went to Cox's office on November
14, 1994 and admitted that she had lost her temper and used
inappropriate language. Cox Aff., at 9.
By mid-November, the College's administration became
concerned over plaintiff's behavior and considered terminating
her. See Cox Aff., at ¶¶ 11, 14; Def.Ex. N. Specifically, the
College felt that plaintiff was attempting to undermine Poux's
authority as director of the EMPO. On November 15, 1994, Spiro
sent an e-mail to Cox stating:
I think it important that we [ ] modify [Roman's]
behavior because I'm concerned that she is
undermining [Poux's] leadership. [Roman] must
increasingly come to understand that we firmly and
unequivocally support Poux. Second, she needs to
see that her success at Cornell is dependent on
his evaluation of her work and his support. She
needs to bring workplace problems to him (not us)
and to resolve them with him. I leave the details
to you but I believe that is the type of behavior
modification needed here.
Later that day, Cox drafted an e-mail message to Spiro
I met with [Roman] . . . and told her that she
needed to deal directly with Poux. She confessed
that she had threatened the staff. . . . I told
her that her behavior was inexcusable — that it
represented a lack of respect for people and also
an abuse of her power as an Assistant Director. I
also told her that I was receiving feedback that
she was undermining Poux and negatively
representing the EMPO program and the university. I
told her that her success at Cornell depended on
her positive support of all three. . . . If she
couldn't do that she shouldn't work here.
Id. Spiro responded to Cox writing "[m]y view at this point is
that [Roman] probably should be outplaced because of her
deteriorating relationship with the staff and because it
increasingly appears that she cannot do the work." Id.
On November 15, 1994, Baylor sent an e-mail to Poux
documenting her recollection of several incidents when
plaintiff allegedly acted in an inappropriate manner.
See Def.Ex. O. Baylor's e-mail reported several incidents
regarding plaintiff, including: plaintiff speaking negatively
about Poux's ability to supervise and manage the EMPO,
plaintiff stating at a staff meeting that Gloria Guilford was
engaging in sexual relations with Hopcroft to be promoted,
plaintiff admitting to falsifying her resume, and plaintiff
permitting a student to use the EMPO fax machine in
contravention to office policy.
On November 18, 1994, Poux issued a disciplinary warning to
plaintiff regarding the November 11, 1994 incident. The letter
read as follows:
On the morning of Friday, November 11, 1994, in
the EMPO suite, you threatened staff members Sonja
Baylor, Ann Hendricks and me (in absentia) with
our jobs, and then hurled numerous invectives and
expletives at Sonja and Ann. Further, you
indicated to them in no uncertain terms that you
were going against my direction to you to return
the briefcase that you purchased with the
following statement: "I am not returning that
fucking bag. . . ."
This behavior is totally and completely
unprofessional and unacceptable. Insubordination,
threatening and abusive behavior, be it physical,
verbal, and/or psychological, as well as repeated
prevarication about individuals, will not be
tolerated under any circumstances.
This is an official University warning to you that
if there are ever displays of such behavior again,
further disciplinary action, including the
possibility of termination, will result.
I recommend that you seek assistance in remedying
Def.Ex. P. In late November or early December, Poux reported to
Cox and Spiro that he had contacted an acquaintance, the Dean
of Students at Rennselaer Polytechnical Institute ("RPI"),
regarding plaintiff. Plaintiff had previously been employed by
RPI. According to Poux, his acquaintance stated that, in the
last two years of her employment, plaintiff "was withdrawn and
secretive, . . . became uncooperative and argumentative, and
engaged in the `back-biting and undermining' other staff" and
her supervisor. See Def.Ex. Q.
On November 10, 1994, the EMPO adopted a policy prohibiting
students from using the office fax machine, except in an
extreme emergency and provided the student paid a fee.
See Baylor Aff., at Ex. B. Shortly after the fax machine policy
was implemented, an incident occurred regarding a student's use
of the EMPO fax machine. Alberto Lazaro ("Lazaro"), who was
fluent in English and Spanish, went to the EMPO office to use
the fax machine to transmit a document relating to a job.
Lazaro was informed by the receptionist in English that
students were not permitted to use the fax machine. Lazaro then
complained to plaintiff in Spanish. Plaintiff then informed the
receptionist in English that Lazaro could send the fax or that
plaintiff would send the fax for him.
Baylor and Hendricks, who do not speak Spanish, complained to
Poux that plaintiff was speaking Spanish in the outer office
area of the EMPO for the purpose of excluding them.
See Baylor Dep., at 83. Poux relayed this incident to Cox and
Hopcroft. Hopcroft and Cox advised that Poux should direct
plaintiff not to carry on extended conversations in a foreign
language for the purpose of excluding others. See Pl.Rule
7.1(a)(3) Statement, at 3; Hopcroft Dep., at 28.
On November 29, 1994, Poux discussed several issues with
plaintiff. The conversation was memorialized in a memorandum
from Poux to plaintiff that read:
1. Having extended conversations in Spanish in the
presence of individuals who do not understand
Spanish is inappropriate and inconsiderate and
will cease immediately.
2. Instructing students to have meetings in EMPO
with no staff is unacceptable and against Office
Policy; it will not happen again.
3. Informing students about personnel difficulties
pertaining to the office is completely
unacceptable, and will not be tolerated.
On November 30, 1994, plaintiff sent an e-mail to Cox
I need to see you at your earliest convenience for
I have received another warning letter from my
supervisor and at this point given this letter and
other incidents in the office, I am coming to the
conclusion that I may be PERCEIVING HARASSMENT!!
Pl.Ex. F (emphasis in original).
On December 6, 1994, plaintiff sent a letter to Poux
regarding the warnings she received on November 18 and November
29. Plaintiff expressed her dissatisfaction with "the lack of
appropriate communications, and cooperation in EMPO . . . [and]
the gossip mill [in the EMPO office]." Def.Ex. T. Plaintiff
denied using inappropriate language in the office, stating that
"I can understand how I could have been misinterpreted,
especially since my tone was very stern." Id. Plaintiff also
denied having been insubordinate, threatening, or abusive.
Plaintiff continued to state that she had never been apprised
before that her speaking Spanish was a problem and that she
thought she made a professional decision to permit the students
to use the EMPO office with no staff present, despite any EMPO
policy. Finally, plaintiff denied having informed students
about personnel difficulties in the EMPO.
Poux responded to plaintiff by letter dated December 13,
1994, advising her that he would process her letter as a formal
On December 12, 1994, Baylor sent Cox an e-mail regarding a
telephone call from Greg Nelson ("Nelson"), a College alumnus
who was then working for Exxon and who was chairman of the
College's Industrial Advisory Council ("IAC"). The e-mail
stated as follows:
One of our largest corporate supporters, Greg
Nelson, IAC Chair, just called me to get
clarification on what is going on in the office.
When I asked him what he was talking about he told
me that [Roman] had called him last week and told
him that [Poux] had fired everyone in the office
and that he was getting ready to fire her. I told
him that was not the case and I encouraged him to
speak directly to [Poux]. . . . He also told me
that [Roman] had ask [sic] him to write a letter
to the Dean indicating that she was the only ...