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COMMODARI v. LONG ISLAND UNIVERSITY
March 31, 2000
DR. FERNANDO COMMODARI, PLAINTIFF,
LONG ISLAND UNIVERSITY AND LONG ISLAND UNIVERSITY FACULTY FEDERATION, LOCAL 3998, NYSUT, AFT, AFL-CIO, DEFENDANTS.
The opinion of the court was delivered by: Trager, District Judge.
REVISED MEMORANDUM AND ORDER
Plaintiff pro se Fernando Commodari, Ph.D. ("Dr. Commodari")
originally brought this hybrid Labor Management Relations Act §
301/duty of fair representation action against defendants Long
Island University ("LIU") and the Long Island University Faculty
Federation (the "Union"), alleging that he was terminated in
violation both of the collective bargaining agreement ("CBA")
between LIU and the Union and a 1998 arbitral decision rendered
in his favor. Both defendants filed motions to dismiss and/or for
Pending decision on those motions, plaintiff, with leave of the
court, amended his complaint to allege national origin
discrimination in violation of § 1983, § 1981, Title VI, and
Title VII against both defendants. In response, LIU filed a
motion to dismiss the employment discrimination claims, and the
Union filed a motion to dismiss and/or for summary judgment on
those same claims. The court now decides both sets of motions.
Dr. Commodari was appointed to the position of assistant
professor in the Chemistry Department at LIU's Brooklyn campus in
the fall of 1996 and was subsequently reappointed for the
1997/1998 fiscal year. In the fall of Dr. Commodari's second year
teaching at LIU, the department conducted a mandatory yearly
review as required by the CBA. In a split vote, the Chemistry
Department Personnel Committee recommended that he be reappointed
for a third year at LIU. His department chairman, however,
Under the terms of the CBA, when the department chairman and
the department personnel committee give conflicting
recommendations on reappointment, a professor's case must be
submitted to a third, multidisciplinary organ, the Faculty Review
Committee ("FRC"), whose decision will resolve the conflict. (CBA
art. VIII, § 2(f).) On November 24, 1997, Dr. Commodari was given
notice of termination effective August 31, 1998, despite the fact
that his case had not yet been submitted to the FRC.
Dr. Commodari filed a grievance with the Union, which, pursuant
to the CBA, brought the matter to arbitration. On July 6, 1998,
the arbitrator issued a decision in Dr. Commodari's favor,
holding that LIU had violated the CBA by terminating Dr.
Commodari without having convened a meeting of the FRC to resolve
the conflicting recommendations of the department chairman and
the department personnel committee. See Long Island Univ.
Faculty Fed'n v. Long Island Univ., No. 13-390-00778-98 (Am.
Arb'n Ass'n July 6, 1998) (Adelman, Arb.). The arbitrator ordered
that Dr. Commodari be reappointed "to a probationary position in
the Chemistry department for the 1998-99 academic year" and
admonished LIU to "follow the reappointment procedures under the
[CBA]" in the future. Id. at 9. The arbitrator did not,
however, review the merits of Dr. Commodari's performance as an
assistant professor. See id. passim.
In accordance with the arbitrator's decision, Dr. Commodari was
appointed to a third year of probationary employment, which was
to begin September 1, 1998, and end on August 31, 1999.
In early August 1998, an additional review of Dr. Commodari's
performance was conducted, with the result that on August 17,
1998, LIU sent Dr. Commodari a notice of termination effective
August 31, 1999. The effect of the August 17, 1998 notice was,
thus, to deny Dr. Commodari a fourth year of probationary
employment at LIU.
On January 20, 1999, Dr. Commodari filed a formal grievance
with the Union, protesting this latest notice of termination.
This time, however, the Union declined to pursue his grievance.
On May 5, 1999, Dr. Commodari, who was initially represented by
counsel, brought this action against LIU and the Union, alleging
that the August 17, 1998 termination notice did not conform to
the reappointment procedure specified in the CBA and, hence,
violated the July 6, 1998 arbitral award. With regard to the
Union, Dr. Commodari claimed that the Union's failure to pursue
his grievance constituted a breach of the Union's duty of fair
On August 25, 1999, Dr. Commodari, acting pro se, moved for a
temporary restraining order and/or preliminary injunction
enjoining LIU from terminating him on August 31, 1999.*fn1 In
response, LIU and the Union cross-moved to dismiss and/or for
On September 22, 1999, Dr. Commodari, who is of Italian
ancestry, filed a charge of discrimination with the Equal
Employment Opportunity Commission ("EEOC") against LIU. In the
charge, Dr. Commodari alleged that LIU had terminated his
employment because of his national origin. In addition, Dr.
Commodari alleged that LIU retaliated against him for opposing
discriminatory hiring practices. Six days later, on September 28,
1999, the EEOC issued a right-to-sue letter to Dr. Commodari on
his charge against LIU.
On that same day, Dr. Commodari filed a charge of
discrimination with the EEOC against the Union. In the charge,
Dr. Commodari alleged that the Union had been a party to LIU's
discrimination against him. Two days later, on September 30,
1999, the EEOC issued Dr. Commodari a right-to-sue letter on the
charge against the Union.
On October 12, 1999, oral argument was held on both Dr.
Commodari's motion for a preliminary injunction and on the
defendants' cross-motions for summary judgment. As stated on the
record, Dr. Commodari's motion for a preliminary injunction was
denied on the grounds that he had not established a likelihood of
success on the merits. (Tr. 46-47.)
In support of their cross-motions for summary judgment,
defendants raised procedural arguments based on exhaustion and
standing, in addition to a substantive argument based on the
interpretation of the CBA and the arbitral decision. In papers
submitted prior to oral argument, Dr. Commodari contested the
defendants' interpretation of the CBA and further suggested that
actual past practice with respect to review and notice procedures
differed from that urged by defendants. In response, the Union
submitted an affidavit by its President, Dr. Rhiannon Allen
("Dr.Allen"), in which she cited a number of termination
decisions involving other assistant professors that she claimed
supported the defendants' interpretation of the CBA. At oral
argument, Dr. Commodari raised a substantial issue with regard to
the accuracy of Dr. Allen's affidavit, and defendants' motions
were denied. Defendants were, however, given leave to renew their
motions upon submission of university personnel records that
verified Dr. Allen's affidavit.
Pending decision on the defendants' motions for summary
judgment, plaintiff, by leave of court, amended his complaint to
plead national origin discrimination in violation of the § 1983,
§ 1981, Title VI, and Title VII against both LIU and the Union,
as well as retaliation claims against LIU.
On November 30, 1999, the Union filed a motion to dismiss
and/or for summary judgment on the Amended Complaint
On December 3, 1999, LIU filed a motion to dismiss the Amended
Applicable Standards of Review
a. Motion to Dismiss vs. Motion for Summary Judgment
With the exception of LIU's motion to dismiss the employment
discrimination claims of plaintiff's Amended Complaint,
defendants style their motions as "motions to dismiss and/or for
summary judgment." Pursuant to Fed.R.Civ.P. 12(b), the latter
motions will be treated as motions for summary judgment inasmuch
as defendants' arguments are not confined to the pleadings, but,
instead, rely on affidavits from university and union officials,
as well as documentary evidence concerning past review and
termination practice at LIU. See Fed.R.Civ.P. 12(b). Plaintiff
has received a copy of the Notice to Pro Se Litigants required by
Local R. Civ. P. 56.2 and has been given a reasonable opportunity
to present all material pertinent to his opposition to summary
LIU's motion to dismiss the employment discrimination claims,
however, is not styled in the alternative as a motion for summary
judgment and does not present matters outside the Amended
Complaint. LIU's motion on Dr. Commodari's employment
discrimination claims, therefore, will be decided under the
standards applicable to a motion to dismiss pursuant to Rule
12(b)(6). See Fed.R.Civ.P. 12(b).
b. Standard for Summary Judgment
Fed.R.Civ.P. 56(c) provides that summary judgment "shall be
rendered forthwith" if the record shows "that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-328, 106 S.Ct. 2548, 2552-53, 91
L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248-252, 106 S.Ct. 2505, 2510-12, 91 L.Ed.2d 202 (1986). A
genuine issue of material fact exists if the evidence in the
record would allow a reasonable jury to return a verdict for the
non-moving party. See Anderson, 477 U.S. at 248, 106 S.Ct. at
2510. In making this determination, the non-moving party's
evidence must be credited, and all justifiable inferences are to
be resolved in his favor. See id. at 255, 106 S.Ct. at 2513.
However, the existence of a mere scintilla of evidence in support
of his position is insufficient; the non-moving party must
produce admissible evidence on which a jury could reasonably find
in his favor. See id. at 252, 106 S.Ct. at 2512. Moreover,
while a pro se plaintiff's papers must be read liberally, see
Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999),
he must still provide evidentiary support, rather than mere
assertions, in order to overcome a motion for summary judgment,
see Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991). Thus, a
pro se plaintiff faced with a summary judgment motion "may not
rest upon the mere allegations" of his complaint to defeat a
for summary judgment. Fed.R.Civ.P. 56(e); see Champion v.
Artuz, 76 F.3d 483, 486 (2d Cir. 1996) (holding that Rule 56(e)
applies to pro se plaintiffs who have received adequate notice of
the nature and consequences of a motion for summary judgment).
c. Standard for Dismissal Pursuant to Rule 12(b)(6)
Upon a motion to dismiss for failure to state a claim pursuant
to Rule 12(b)(6), a complaint should not be dismissed unless it
"appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief."
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2
L.Ed.2d 80 (1957).
In ruling on such a motion, the court is to look only
to the allegations of the complaint and any documents
attached to or incorporated by reference in the
complaint, to assume all well-pleaded factual
allegations to be true, and to view all reasonable
inferences that can be drawn from such allegations
and documents in the light most favorable to the
Dangler v. New York City Off Track Betting Corp., 193 F.3d 130,
138 (2d Cir. 1999) (citations omitted). Moreover, in evaluating
whether a plaintiff has sufficiently alleged facts which, if
true, would entitle him to relief, complaints prepared by pro se
litigants should be held "to less stringent standards than formal
pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519,
520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (per curiam); see
Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997).
The § 301/Fair Representation Claim
Defendants have contested the merits of Dr. Commodari's §
301/fair representation action and, in addition, have urged
throughout these proceedings that Dr. Commodari is procedurally
barred from bringing the action because of his alleged failure to
exhaust his remedies under the CBA and a lack of standing to
enforce the arbitral award. Because Dr. Commodari's claim is
readily decided on the merits, this court will not reach
defendants' procedural arguments, though, as noted at the October
12, 1999 conference, defendants' exhaustion argument appears to
have merit, (Tr. 52).
Under federal labor law, an employee may bring a complaint
against his union and/or his employer alleging (1) that the
employer breached a collective bargaining agreement and (2) that
the union breached its duty of fair representation in redressing
his grievance against the employer. See DelCostello v.
International Bhd. of Teamsters, 462 U.S. 151, 163-64, 103 S.Ct.
2281, 2289-91, 76 L.Ed.2d 476 (1983); Vaca v. Sipes,
386 U.S. 171, 184-86, 87 S.Ct. 903, 913-15, 17 L.Ed.2d 842 (1967); White
v. White Rose Food, 128 F.3d 110, 113 (2d Cir. 1997). Section
301 of the Labor Management Relations Act, 29 U.S.C. § 185
(1998), governs the employer's duty to honor the collective
bargaining agreement, and the duty of fair representation is
implied by § 9(a) of the National Labor Relations Act,
29 U.S.C. § 159(a) (1998). See DelCostello, 462 U.S. at 164, 103 S.Ct. at
2290-91; White Rose Food, 128 F.3d at 113; Price v.
International Union, United Auto. Aerospace & Agric. Implement
Workers, 795 F.2d 1128, 1134 (2d Cir. 1986). The plaintiff may
sue the union or the employer, or both, but must allege
violations on the part of both. See DelCostello, 462 U.S. at
165, 103 S.Ct. at 2291; White Rose Food, 128 F.3d at 114.
b. Dr. Commodari's termination did not violate the CBA or the
For the reasons set forth on the record at the October 12th
argument, the defendants' interpretation of CBA is the better,
and indeed the only plausible, reading of the plain language of
the CBA. To
briefly recapitulate the court's holdings on this point, the CBA
required that Dr. Commodari be given notice of termination prior
to September 1 of his third year, i.e., September 1, 1998, in
order for LIU to validly deny him reappointment for his fourth
year of employment, i.e., the 1999/2000 fiscal year.*fn3 In this
case, LIU did just that by sending Dr. Commodari notice on August
17, 1998, advising him that he would not be reappointed to a
fourth year of employment and that his employment would terminate
on August 31, 1999. (Pl.'s Mem. Opp. Defs.' Mots. Summ.
J./Dismiss, Ex. I [hereinafter Pl.'s Mem. Opp. I].)
Dr. Commodari's argument that such a procedure would render
meaningless the mandatory third-year review, which the CBA
requires in the fall of a probationary employee's third year,
(CBA art. VIII, § 2(c)), is undercut by the plain language of
Article IX, § 1 of the CBA, which specifies that employees must
be given notice of termination by September 1st of the year
preceding the year in which the termination is to become
effective, and by evidence LIU presented that notices of
termination given to assistant professors prior to a given year
of employment have, on occasion, been rescinded on the basis of a
favorable review in the subsequent year, (Letter from Thomas S.
Baylis to Chambers of 10/29/99 with supporting personnel records,
at 2 (citing the cases of Professors Donahue and Knight)). Dr.
Commodari has provided no evidence of a contrary practice.
Indeed, a contrary practice — one in which a third-year or more
senior employee could be given a notice of termination during his
n th year, after a review conducted in the fall of that n th
year, denying the employee an (n 1)th year of employment —
would undercut the bargained-for notice procedure outlined in
Article IX, which is designed to ensure that more senior
probationary faculty members be given at least one year of notice
before their termination becomes effective, thus allowing them to
time to find new employment in what is a cyclical job market,
Finally, a reading of the CBA that attempted to accommodate
both Dr. Commodari's argument that a second-year employee can
only be given a notice of termination after the mandatory
third-year review and the notice schedule set out in Article IX,
§ 1 would lead to the absurd consequence that LIU can never deny
a second-year employee a fourth year of employment: Any notice
sent to a third-year employee after the third-year review would
necessarily be a notice sent after September 1st of the
employee's third year, and therefore, under Article IX, that
notice could not become effective until August 31st, i.e., the
last day, of the employee's fourth year.
Crucially, however, not all terminations conform to this
pattern. In case of Professor Mehr Azar Tadayyoni ("Dr.
Tadayyoni"), a third-year assistant professor in the Chemistry
Department, the department personnel committee met on May 15,
1990, and determined not to recommend her reappointment for the
1991/1992 year. (Letter from Thomas S. Baylis to Chambers of
11/18/99 with supporting personnel records, at 2 [hereinafter LIU
Nov. Letter]; Arons Reply Aff. of 9/28/99, Ex. A, at 2-3.) In a
subsequent meeting on July 9, 1990, the committee reaffirmed its
May 15th determination. (Id.) The chairman of the department
forwarded the department personnel committee's review and
recommendation along with his concurrence to the dean on July 16,
1990. (Id.) As a result, by letter dated August 22, 1990, LIU's
then vice president for academic affairs, advised Dr. Tadayyoni
that she would be terminated as of August 31, 1991, only twelve
months later. (Id.) Subsequently, Dr. Tadayyoni was, in fact,
terminated on August 31, 1991. (Id.) Similarly, Professor
Robert Erler was given notice of termination on July 21, 1997
that he would be terminated effective August 31, 1998 — only
thirteen months later, and he was, in fact, terminated on
August 31, 1998. (Id. at 3.) Thus, it was not unprecedented for
LIU to send notices of termination after May of an employee's n
th year that became effective on August 31st of the employee's
(n 1)th year.
Moreover, there is a perfectly innocent explanation of why, in
this case, Dr. Commodari was not given notice of termination in
April or May of 1998: As of April and May of his second year, the
arbitrator had not yet rendered his decision on Dr. Commodari's
November 1997 notice of termination. University officials,
therefore, believed that he had already been given a valid notice
of termination that would become effective on the last day of his
second year.*fn5 (Id. at 2.) Accordingly, it would make no
sense for LIU to send a notice of termination in April or May of
Dr. Commodari's second year that would be effective on the last
day of a third year of employment that he had ...