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SANK v. CITY UNIVERSITY OF NEW YORK

April 4, 2003

PROFESSOR DIANE SANK, PLAINTIFF,
v.
THE CITY UNIVERSITY OF NEW YORK, JOSEPH MURPHY, ET AL., DEFENDANTS.



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

OPINION

Defendants City University of New York ("CUNY") and City College of the City of New York ("CCNY") (collectively the "Defendants") have moved pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rule 56.1 to dismiss the remaining claims in the complaint of plaintiff pro se Diane Sank ("Sank"). Sank's only remaining claims, for which she has requested a jury trial, are filed pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), codified at 42 U.S.C. § 2000e et seq., alleging certain acts of retaliation taken against Sank after she filed a complaint of discrimination with the New York City Human Rights Commission and occurring after November 21, 1991, the effective date of the 1991 amendment to the Civil Rights Act.*fn1 In addition, Sank's opposition will be treated, in part, as a motion pursuant to Rule 15(a) of the Federal Rules of Civil Procedure to amend her complaint to include approximately twenty-three additional acts of purported retaliation that occurred from late November 1991 to March 1995.

For the following reasons, Sank's motion to amend is denied, and the Defendants' motion is granted. As a result, all of Sank's remaining claims are dismissed.

Prior Proceedings

On October 21, 1988, Sank filed a charge of discrimination, numbered "EM00457-8/24/88-DE" with the New York City Commission on Human Rights ("NYCCHR"), alleging that Bernard Harleston ("Harleston"), President of the City College of the City University of New York ("CCNY"), removed Sank as chairperson of the Anthropology Department on April 27, 1988 because of gender discrimination. Sank, a white female, has been employed as a full professor of anthropology at CCNY since 1968. Sank amended her charge on June 27, 1989, to add a claim that her removal as chairperson was a result of racial discrimination.

On August 8, 1989, Sank filed a second amended charge with the NYCCHR alleging that CCNY had retaliated against her for her charge of discrimination by (1) denying her request for sabbatical leave and (2) removing the contents of her research laboratory without proper notice to her.

Sank filed a third amended charge on March 3, 1990, alleging that the chairperson of the Anthropology Department had threatened, in September 1989, to remove her research computer in retaliation for her charge of discrimination.

The NYCCHR issued a seventeen-page Determination and Order After Investigation on January 22, 1993. The determination concluded that there was no probable cause to believe that CUNY or its employees had engaged in the unlawful discriminatory and retaliatory conduct alleged in Sank's charge.*fn2 The Equal Employment Opportunity Commission adopted the conclusions of the NYCCHR and issued Sank a Right-to-Sue letter on October 19, 1993.

Sank filed her complaint in this Court on January 18, 1994, and an amended complaint (the "Complaint") was filed on May 27, 1994. After several iterations of motion practice, Sank's complaint was winnowed down to certain claims of discrimination and retaliation in violation of Title VII. See Sank v. City University of New York, 219 F. Supp.2d 497 (S.D.N.Y. 2002). For those actions alleged to have occurred prior to November 21, 1991, the effective date of the 1991 amendment to the Civil Rights Act providing the right to a jury trial for Title VII plaintiffs, a six-day bench trial was held. At the conclusion of the trial on October 7, 2002, an opinion was issued from the bench, concluding that there was insufficient evidence to support Sank's discrimination and retaliation claims arising from her removal as department chairperson, the relocation of her laboratory, and the denial of her request for sabbatical leave. Sank has filed a motion to reconsider these findings, which is presently returnable on April 16, 2003.

Thus, the only remaining claims in this action are Sank's allegations of retaliatory actions occurring after November 21, 1991, and for which she is entitled a jury trial. Two specific claims were made part of this action through a motion for reconsideration Sank filed in May 2002. Sank v. CUNY, 94 Civ. 253, 2002 U.S. Dist. LEXIS 14032, at *17-18 (S.D.N.Y. July 31, 2002).

In her motion for reconsideration, for the first time Sank specifically alleged that CUNY retaliated against her by (1) denying her request to participate in Academic Advising in lieu of teaching a course in the Spring 1993 semester, and (2) failing to correct an error in the CCNY Fall 2001 Schedule or Classes that listed prerequisites for the course that were not, in fact, required.*fn3 In her instant papers, Sank has submitted an additional twenty or so allegations of retaliatory conduct, which shall be discussed, infra.

The Defendants filed the instant motion on December 4, 2002, and Sank responded on February 5, 2003. The Defendants submitted their reply on March 19, 2003, at which time the motion was considered fully submitted.

Facts

As befits a summary judgment motion, the following facts are drawn from the parties' Rule 56.1 statements. It should be noted that Sank, who received prior notice that she would be required to reply to CUNY's Rule 56.1 statement, failed to supply adequate evidentiary support for most of her assertions in her Rule 56.1 statement in response to the Defendants' Rule 56.1 statement. Where Sank did not provide a specific reference to an exhibit or other piece of admissible evidence, her assertions were discounted, except where her assertions could be supported by the documents relied upon by the Defendants in the paragraphs with which Sank took issue. E.g., Millus v. D'Angelo, 224 F.3d 137, 138 (2d Cir.2000) (per curiam) (affirming summary judgment where plaintiff failed to deny key allegations in defendant's Local Rule 56.1 statement). Because Sank was served with proper notice of the local rule, consisting of a separate, two-page notice, her pro se status does not insulate her from this result. E.g., Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996) (affirming summary judgment against pro se plaintiff who was provided with notice of Local Rule 56.1 requirements, but nonetheless failed to comply with rule).

Sank's Course Assignments in Spring 1993

At a meeting of the Anthropology Department on September 17, 1992, Professor Fremont Besmer ("Besmer") was elected to serve as acting chairperson. An election was necessary because Professor Carol Laderman ("Laderman"), the sitting department chairperson, was unable to perform the duties of the office following a stroke in August 1992.

As acting chairperson, Besmer was responsible for preparing the Spring 1993 teaching schedules for faculty in the Anthropology Department. In conjunction with that responsibility, he received a memorandum from Sank dated September 24, 1992, in which Sank requested that she be assigned in the Spring 1993 to teach two courses, ANTH 290 D and ANTH 101 E. In addition, she asked that she be assigned to Academic Advising or, if she could not get that assignment, that she be assigned to ANTH 101 F.*fn4 Prior to this time, Sank had consistently received an Academic Advising assignment for more than ten years.

Academic Advising is an academic support program in which faculty members at CCNY can participate with the approval of their department chairperson, on the condition that their participation does not interfere with their primary responsibility to teach. Until the 1992-93 academic year, faculty members participating in Academic Advising received credit towards their teaching obligation for each semester that they participated in the program. In the 1992-93 academic year, because of a financial exigency, CCNY reduced by half the credit granted for participation in Academic Advising, i.e., a faculty member would have to participate in Academic Advising for two semesters in a single academic year to receive a one-course reduction in his or her obligation. This change in policy affected all faculty in all academic departments.*fn5

In a memorandum to Besmer dated October 2, 1992, Sank reiterated her request to be assigned to ANTH 290 D, ANTH 101 E and to Academic Advising, or, if Academic Advising were unavailable, to be assigned to ANTH 101 F as her third course.

Besmer scheduled Sank to teach ANTH 290 D, ANTH 101 E and ANTH 101 F in the Spring Semester. The Defendants claim that Besmer could not approve Sank's request to participate in Academic Advising in lieu of teaching ANTH 101 F because (1) there was insufficient funding to hire adjunct faculty to cover ANTH 101 F, and (2) CCNY's change in policy reducing available release time for faculty members who participated in Academic Advising meant that Sank would have had to teach a third course regardless of whether or not she participated in Academic Advising. Sank states that she was unaware of the change of policy at that time.*fn6

The Defendants allege that Sank's discrimination charges with the NYCCHR and her grievance challenging Besmer's election as acting chairperson did not affect the teaching schedule Sank received for the Spring 1993 semester.*fn7

In January 1993, at the start of the Spring 1993 semester, Laderman resumed her duties as chairperson of the Anthropology Department. Laderman approved Sank's request to participate in Academic Advising in the Spring 1993 semester. In a letter dated February 11, 1993, Ilona Anderson, then the CCNY Dean for Faculty Relations ("Anderson"), notified Sank that she was not entitled to additional release time for her participation in the advising program.

In a letter dated March 1, 1993, Sank told Anderson that her assignment to Academic Advising for Spring 1993 had resulted in a contractual overload, i.e., an assignment to more than 21 credit hours in a single academic year. On March 29, 1993, Sank filed a formal grievance alleging a contractual overload and requesting "[p]ayment for excess workload."

On April 16, 1993, Anderson met with Sank, Laderman and Sank's union representative, Professor Al Bachman. At that meeting, Sank agreed to resign from Academic Advising and withdraw her grievance in exchange for additional compensation for the fifteen hours she had worked in Academic Advising in Spring 1993.*fn8

During the discussions to resolve Sank's grievance, her previous charges of discrimination were not mentioned or otherwise discussed.*fn9 Anderson did not consider Sank's discrimination claims in working to resolve Sank's grievance.

As part of an agreement to resolve Sank's grievance, she received additional compensation for the time she worked in ...


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