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COMMODARI v. LONG ISLAND UNIVERSITY

March 31, 2000

DR. FERNANDO COMMODARI, PLAINTIFF,
V.
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 summary judgment.

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.

Background

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, disagreed.

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 representation.

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 summary judgment.

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 Complaint.

Discussion

(1)

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 judgment.*fn2

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 motion 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 plaintiff.

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).

(2)

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).

a. Applicable Law

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 arbitrator's award.

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, (Tr. 52).

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.

In his later papers, Dr. Commodari appears to concede that LIU can, under certain circumstances, deny a probationary employee a fourth year of employment. However, Dr. Commodari asserts that LIU's past practice under the CBA has actually been to give second-year and more senior employees at least fifteen months of notice before terminating them, rather than the twelve months specified in the CBA.*fn4 Thus, Dr. Commodari argues that he could have been properly terminated effective the last day of his third year only if he had received notice of termination as of May of his second year. Dr. Commodari observes that most of the personnel records produced by LIU show that third-year and more senior employees who were not reappointed received their notices of termination in April or May of their second-to-last year of employment. (Letter from Dr. Commodari to Chambers of 2/14/00, attached chart.)

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 ...


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