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MENES v. CUNY UNIVERSITY OF NEW YORK

April 12, 2000

HERMAN MENES, PLAINTIFF,
V.
CUNY UNIVERSITY OF NEW YORK ("CUNY"), SAMUEL PHILLIPS, CUNY DIRECTOR OF PERSONNEL RELATIONS, ERIC WASHINGTON, CUNY DIRECTOR CLASSIFIED STAFF AND LABOR RELATIONS, CUNY-BRONX COMMUNITY COLLEGE ("BBC") PRESIDENT CAROLYN WILLIAMS, CUNY-BCC ACTING PRESIDENT LEO CORBIE, CUNY-BCC ACTING DEAN MARTIN PULVER, CUNY-BCC PERSONNEL DIRECTOR SHELLEY LEVY, CUNY-BCC WEST PAGE 295 EQUAL OPPORTUNITY COUNSELOR GERALDYNE DIALLO, CUNY-BCC BUSINESS MANAGER MAHER MOBASHER, AND CUNY-BCC ACCOUNTING MANAGER REBECA MARTINEZ, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES, DEFENDANTS.



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

    OPINION

Defendants the City University of New York ("CUNY"), Samuel Phillips ("Phillips"), Eric Washington ("Washington"), Carolyn Williams ("Williams"), Leo Corbie ("Corbie"), Martin Pulver ("Pulver"), Shelley Levy ("Levy"), Geraldyne Diallo ("Diallo"), Maher Mobasher ("Mobasher"), and Rebeca Martinez ("Martinez") (collectively, "Defendants") have moved, pursuant to Rule 56, Fed.R.Civ.P., for summary judgment to dismiss the complaint of Herman Menes ("Menes"), which alleges a discriminatory discharge on the basis of disability, age, national origin, and retaliation, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 ("ADA"), the Rehabilitation Act of 1973, 29 U.S.C. § 794 (the "Rehabilitation Act"), New York State Executive Law § 296 et seq. (the "State Human Rights Law" or "NYHRL"), the New York City Administrative Law, § 8-104 et seq., (the "City Human Rights Law"), and 42 U.S.C. § 1981 and 1983. For the reasons set forth below, the motion is granted.

The Parties

Menes is a New York City resident and a former employee of CUNY at its Bronx Community College campus ("BCC").

CUNY is a public university established by the City of New York under the laws of the State of New York. At all times relevant to this action, CUNY was an employer within the meaning of 42 U.S.C. § 2000e and had more than five hundred employees.

The following individual defendants were CUNY employees during the time period relevant to this action:

Phillips was the Director of Personnel Relations.

Washington was the Director of Classified Staff and Labor Relations, and worked under Phillips' supervision.

Corbie was BCC's Acting President until August 19, 1996.

Williams was BCC's President after August 19, 1996.

Pulver was BCC's Acting Dean during and after May, 1996, and worked under the supervision of Corbie or Williams.

Levy was BCC's Personnel Director, and worked under the supervision of Pulver, Corbie, and/or Williams.

Diallo was BCC's Equal Employment Opportunity Counselor, and worked under the supervision of Pulver, Corbie, and/or Williams.

Mobasher was BCC's Business Manager, and worked under the supervision of Corbie or Williams, and of Levy and Pulver.

Martinez was BCC's Accounting Manager, and worked under the supervision of Corbie or Williams, and of Levy, Pulver, and Mobasher.

Prior Proceedings

On July 30, 1996, Menes filed with the Equal Employment Opportunity Commission (the "EEOC") charges against CUNY alleging discrimination for failure to accommodate Menes's disabilities. The EEOC issued Menes a right to sue letter on or about March 19, 1997. On June 12, 1997, Menes filed his complaint in the instant action. On July 1, 1998, he filed an amended complaint. The instant summary judgment motion was filed on August 2, 1999. Papers were submitted through January 19, 2000, at which point oral argument was heard and the motion deemed fully briefed.

The Facts

The facts set forth below are drawn from the parties' Rule 56.1 Statements and other materials submitted in connection with the motion. Where facts are in dispute, inferences are drawn in Menes's favor.

On September 27, 1994, Levy and Martinez interviewed Menes for a position as a College Accountant at CUNY's BCC campus. Martinez hired Menes, who began work on October 24, 1994. Menes was 58 years old at the time. He had previously worked for twenty-eight years for the Commodity Futures Trading Commission (the "CFTC"), where he had risen to the position of Senior Accountant.

Menes worked in the Accounting Department at BCC under Martinez, the accounting manager, who in turn reported to Mobasher, the business manager. Menes's responsibilities initially included handling the general ledger and bank reconciliations. In January 1995, he was given a satisfactory performance evaluation for the period ending December 31, 1994.

Menes was away from work for one week in January 1995 due to angioplasty surgery. Upon his return, Menes was given lesser responsibilities that did not require use of his accounting skills. He was assigned to work under the supervision of Andre Ramos, essentially doing data entry. He no longer worked on the general ledger, but on a purchase and expense ledger, and he handled travel vouchers and coded information into the computer. He continued to perform these duties until he was dismissed in November 1996. His former responsibilities were transferred to Mark Wellborn, who was 29 years old. At this time, Martinez commented that Menes had everything going for him except his age, and she made joking remarks concerning his angioplasty operation until he asked her to stop doing so.

Ramos did not have a college education and had far less accounting experience than Menes, and failed to train him adequately. On occasion, Martinez spoke Spanish in the office to Ramos and other employees, although they were all fluent in English, and Menes was present and he did not speak Spanish.

In April 1995, Menes had quadruple bypass surgery and was subsequently out on paid and unpaid medical leave. In June 1995, his cardiologist, Dr. Blake, told him that he was able to return to work that month. Dr. Blake submitted a letter to BCC stating that Menes was able to "return to work with full duties as of June 19, 1995." However, in June and July 1995, Menes's psychiatrist, Dr. Josef Weissberg, wrote two notes to BCC requesting two additional thirty-day extensions of Menes's medical leave, stating that Menes could not work effectively at that time due to post-surgery depression. Menes did not return to work until September 1995, approximately five months after his surgery.

In September 1995, Menes submitted to Levy, the BCC Director of Personnel, a letter from Dr. Weissberg noting that Menes had suffered intermittently from depression throughout his adult life and that he had recently had heart surgery. Weissberg stated that Menes was ready to work part-time at a job that did not require an arduous commute. Menes also submitted a letter from Dr. Inkeles, his internist, stating that it would be in Menes's best medical interest not to have to travel a long distance to work. Menes submitted his own letter requesting a reasonable accommodation as specified in Inkeles's note, and Menes's union also sent a letter on his behalf to the CUNY central office requesting that Menes be transferred to City College at 137th Street in Manhattan, which was closer to Menes's home on West 123rd Street. The union sent a follow-up letter in January 1996. CUNY did not grant a transfer to Menes, claiming that it did not receive the letters from the union.

On September 13, 1995, BCC granted Menes a three day work week.

On May 29, 1996, Martinez gave Menes an unsatisfactory evaluation with a copy of a memorandum recommending that Menes be terminated, in which she stated that Menes was a slow learner who made continuous mistakes, whose work had to be reviewed or redone, and who required considerable supervision and repetitive instructions.

At a meeting on June 6, 1996, Shelley Levy informed Menes that BCC sought to extend his probation for six months and to issue an evaluation for him every two months. He would also be required to return to a five-day work week. Menes agreed to these demands under the threat of immediate termination. No one requested medical documentation of his continued need for the three day work week accommodation, nor suggested that the College would have provided the accommodation if such documentation was provided.

On June 20, 1996 Menes met with Geraldyne Diallo, BCC's Equal Employment Opportunity Officer, and Leo Corbie, the Acting President of BCC. Corbie directed Diallo to tell Levy to restore Menes's three-day work schedule. However, the three-day work week was never restored.

On July 30, 1996, Menes filed two charges of discrimination against CUNY with the EEOC alleging that CUNY discriminated against him by failing to accommodate his disabilities. CUNY was provided with Menes's EEOC complaint and a letter from Dr. Tuttman supporting his psychiatric condition. On August 30, 1996, Menes wrote a letter to Diallo and Mobasher indicating that his health had deteriorated due to stress and again requesting a three-day work schedule. In August and November 1996, Menes received two additional negative evaluations.

Menes was dismissed on November 26, 1996.

Discussion

I. The Standard for Summary ...


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