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MENES v. CUNY UNIVERSITY OF NEW YORK
April 12, 2000
HERMAN MENES, PLAINTIFF,
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.
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.
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
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 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
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
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
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
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.
I. The Standard for Summary ...