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MARKS v. NEW YORK UNIVERSITY

August 31, 1999

JANET R. MARKS PLAINTIFF,
v.
NEW YORK UNIVERSITY AND GEORGE G. DALY, DEFENDANTS.



The opinion of the court was delivered by: Patterson, District Judge.

  OPINION AND ORDER

This case involves employment related disputes between plaintiff Janet R. Marks ("Marks") and her former employer, New York University ("NYU").*fn1 Plaintiff alleges breach of an employment contract and a separation agreement, unlawful eviction from NYU-owned housing and discrimination in the compensation, terms and conditions of her employment on the basis of age and sex in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the "ADEA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681 et seq. ("Title IX"), and the New York State Human Rights Law, N Y Exec. Law § 290 et seq. (the "NYSHRL").*fn2 NYU has moved for summary judgment on all of plaintiff's claims pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons which follow, defendant's motion is granted in its entirety and plaintiff's complaint is dismissed.

FACTUAL BACKGROUND

Due to plaintiff's failure to file a statement of disputed material facts pursuant to Local Rule 56.1, the facts set out in NYU's Rule 56.1 Statement are deemed admitted. See Civil Rule 56.1(c), Local Rules of the United States District Courts for the Southern and Eastern Districts of New York; see also Gubitosi v. Kapica, 154 F.3d 30, 31 n. 1 (2d Cir. 1998).*fn3 The undisputed facts of the case, drawn verbatim from NYU's Rule 56.1 Statement, are as follows:

Background

    1. Plaintiff Janet R. Marks ("Marks") was employed
  at NYU's Stern School of Business ("Stern") from the
  fall of 1971 until December, 1996. See Verified
  Complaint, filed January 22, 1998, ("Complaint") ¶ 8,
  Exh. 1 to the Affidavit of Donna S. Kahn, Esq.,
  ("Kahn Aff."); Answer and Counterclaim, March 10,
  1998 ("Answer"), ¶ 8, Exh. 2 to the Kahn Aff.
    2. As of August, 1993, when Daly became the Dean of
  the Stern School, Marks was Associate Dean for MBA
  Education. See Complaint ¶ 8; Deposition of Janet
  R. Marks, dated September 10, 1998 & January 11, 1999
  ("Marks dep."), at 43, Exh. 3 to the Kahn Aff.;
  Deposition of George G. Daly, dated November 12, 1998
  & February 17, 1999 ("Daly dep.") at 6, 15, Exh. 4 to
  the Kahn Aff.
    3. As of September 1, 1995, Marks was appointed as
  an Associate Clinical Professor at Stern. See
  Letter from L. Jay Oliva to J. Marks, April 19, 1996,
  Exh. 5 to the Kahn Aff; Daly dep., at 72. Her
  appointment letter specified that she was to perform
  "[f]ull time" duties as a Associate Clinical
  Professor for a term ending January 14, 1999. See
  id. No tenure implications were attached to the
  position. See id.
    4. That letter also provided for a secondary
  appointment as Associate Dean for International
  Programs and MBA Initiatives, a new position, created
  for plaintiff. See id.; Daly dep., at 74.
    5. Under this dual appointment, $95,500 —
  approximately 90% of Marks' annual salary — was
  attributable to her duties as an Associate Clinical
  Professor, and the remainder, $10,611, was payment
  for her duties as Associate Dean. See Kahn Aff.,
  Exh. 5.
    6. Marks held both positions until the Associate
  Deanship was eliminated in September, 1996. See
  Letter from T. Pugel to J. Marks, August 28, 1996,
  Exh. 6 to the Kahn Aff.
    7. Thereafter, until November 30, 1996, Marks was
  paid as a full time Associate Clinical Professor at
  Stern, at a rate of $95,500 annually. See NYU
  "Change Primary" Form, Kahn Aff., Exh. 27.
  Events Leading Up To Marks' Departure From NYU
    8. Marks was informed in July, 1996 that her
  Associate Deanship would be eliminated in September,
  1996, but she would remain a full time faculty
  member. See Exh. 6 to the Kahn Aff.; Marks dep., at
  97-98.
    9. Marks approached Daly in late August or early
  September, 1996, seeking to negotiate a separation
  package for herself, informing Daly that she had
  decided she would like to leave NYU. See Marks
  dep., at 249.
    10. NYU does not routinely provide severance
  payments to employees who depart voluntarily. See
  Daly dep. at 123-24; NYU Admin. and Prof'l Handbook
  at 21, Exh. 7 to the Kahn Aff.

The October 8 Offer

    11. NYU offered Marks a separation agreement to
  Marks on October 8, 1996. (The "October 8 Offer").
  See Exh. 12 to the Kahn Aff; Complaint ¶ 21.
    12. By its terms, the October 8 Offer was not
  irrevocable, nor did it contain consideration for an
  option contract. See Exh. 12 to the Kahn Aff.
    13. The October 8 Offer provided for severance pay
  and retirement benefits and specified that, in return
  for valuable consideration, Marks released NYU from
  all future claims she might have "under the Age
  Discrimination in Employment Act or any other
  federal, state, local or other law. . . ." See Exh.
  12 to the Kahn Aff., at ¶¶ 3,4,6,7.
    14. The October 8 Offer provided that Marks could
  consider the Release for 21 days. See id. at ¶ 5.

Marks' Employment at Fordham University Business School

    15. Marks had been offered a full time position at
  Fordham University Business School, a competitor of
  NYU, in June of 1996. See Marks dep. ex. 3, Kahn
  Aff., Exh. 8; Deposition of Ernest L. Scalberg, dated
  February 11, 1999 ("Scalberg dep."), at 29 (Fordham's
  June, 1996 offer of full time employment remained on
  the table through the summer), Exh. 9 to the Kahn
  Aff.
    16. Marks had begun to work at Fordham in July,
  1996, in preparation for the "full time" position
  Fordham had offered her, slated to begin on October
  1, 1996. See Marks dep. ex. 5, Kahn Aff. Exh. 10;
  (appointment letter dated August 1, 1996); Fordham
  Record of Hiring Report, July 30, 1996, Exh. 11 to
  the Kahn Aff.
    17. Marks was paid an annual salary of $102,000
  from Fordham University as of October 1, 1996. See
  Marks' Fordham appointment as Associate Dean, Kahn
  Aff., Exh. 22; Marks' Fordham offer of Associate
  Professorship, Kahn Aff., Exh. 23; Acceptance and
  Payroll Deduction Form, Kahn Aff., Exh. 24; Personnel
  Action Form, Kahn Aff., Exh. 25; Personnel Record
  Card, Kahn Aff., Exh. 26.
    18. Marks was paid $20,000 at a rate of $75/hour
  for her work at Fordham during August and September,
  1996. See Scalberg dep., at 67-70.

Marks Sends NYU A Counter-Offer

    19. In response to the October 8 Offer, Marks sent
  a revised proposed agreement to NYU on October 23,
  1996, see Exh. 13 to the Kahn Aff, which altered
  several of the existing provisions of the October 8
  Offer, providing that: (1) Marks would be allowed to
  work for NYU in the future; (2) Records would reflect
  that Marks left employment at NYU for "early
  retirement," rather than resignation; (3) Marks'
  retirement would be effective December 31, 1996
  rather than October 7, 1996, providing approximately
  three months additional salary; (4) Severance would
  be paid, and benefits afforded, at a different time
  than originally specified. See Kahn Aff., Exh. 13,
  at ¶¶ 1, 6, 10.
    20. Marks' revision also provided the following new
  terms: (1) NYU would provide Marks with a "most
  favorable" letter of reference, which she would
  draft, and had a continuing obligation to speak
  favorably of Marks; (2) NYU would release any and all
  claims against Marks; (3) Marks and NYU would
  mutually agree not to engage in any disparaging
  remarks about each other; (4) Marks would be entitled
  to remain in NYU-owned housing. See Exh. 13 to the
  Kahn Aff., at ¶¶ 7,8,9,11.

NYU Revokes the October 8 Offer

    21. While waiting for Marks to sign the October 8
  Offer, Daly learned from one of NYU's faculty members
  that he was told Marks was employed by Fordham
  University. See Daly dep., at 146.
    22. Thereafter, on October 28, 1996, Daly informed
  Marks that NYU's October 8 Offer was revoked, and
  requested that she report for duty at NYU. See
  Complaint ¶ 22; Letter from G. Daly to J. Marks,
  October 28, 1996, Exh. 14 to the Kahn Aff.
    23. Marks did not report for duty at NYU; instead,
  she signed and returned the October 8 Offer. See
  Complaint ¶ 22; Letter from J. Marks to G. Daly,
  October 29, 1996, Exh. 15 to the Kahn Aff.
    24. Daly then informed Marks that, since NYU had
  revoked its offer, he did not consider her signature
  on the October 8 Offer to be effective. See
  Complaint ¶ 22; Letter from G. Daly to J. Marks,
  October 31, 1996, Exh. 16 to the Kahn Aff.
    25. Marks sent a letter demanding that NYU perform
  the terms of the October 8 Offer. See Letter from
  M. Pollet esq. to A. Schaffer, November 13, 1996,
  Exh. 17 to the Kahn Aff.

Marks Informs NYU She Is Working Full Time For Fordham

    26. On December 3, she wrote to Thomas Pugel
  ("Pugel"), Vice Dean of the Stern School, informing
  NYU that she was working full time at Fordham
  University. See Exh. 18 to the Kahn Aff.
    27. NYU's Faculty Handbook, which governs faculty
  throughout NYU, restricts outside employment to one
  day per week. Faculty Handbook at 60-61, Exh. 20 to
  the Kahn Aff.
    28. This policy applies equally to all faculty
  members, even to those who are not teaching during a
  particular term. See Stern School Policies and
  Procedures Pertaining to Faculty at 13, Exh. 21 to
  the Kahn Aff.
    29. NYU Rules also specifically state that "it is
  expected that a faculty member would normally consult
  his or her dean" in a situation in which he or she
  would be "employed by another academic institution
  other than while on leave of absence from the
  University." Exh. 20 to the Kahn Aff. at 115-C.
    30. The policy recognizes that faculty members have
  many duties outside the classroom, see id., and
  seeks to assure a sustained level of commitment to
  those duties, and to the NYU community, even during
  non-teaching periods. See Affidavit of George G.
  Daly, ("Daly Aff.") at ¶ 2. It also protects NYU from
  conflicts of interest inherent in unlimited outside
  employment. See Daly Aff. at ¶ 2; Exh. 20 to the
  Kahn Aff. at 115A-D. NYU faculty are regularly
  required to submit records of their outside
  commitments for approval by the Dean and the
  President of NYU. See Daly Aff. ¶ 2.
    31. The policies set out in the Faculty Handbook
  govern the entire University, and "can be changed
  only by action of the body or bodies that ...

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