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United States District Court, S.D. New York

August 17, 2005.


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


Plaintiff Thomas J. Germano commenced this action against the above-named Defendants, claiming that they discriminated against him on the basis of age in the course of his employment and termination thereof, and that the Defendants' termination of his employment was a breach of contract. Plaintiff asserts claims under the Age Discrimination in Employment Act ("ADEA"), the New York State Human Rights Law (NYSHRL), and the New York City Human Rights Law ("NYCHRL"); as well as for common law breach of contract and breach of implied-in-fact contract. Defendants Cornell University, New York State School of Industrial and Labor Relations ("ILR School"), Edward J. Lawler, Ronald Seeber, and Ann W. Martin move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss Plaintiff's NYCHRL, contract, and implied contract claims for failure to state a claim upon which relief can be granted. Defendants also move to dismiss Plaintiff's New York City Human Rights Law claim for lack of subject matter jurisdiction pursuant to F.R.C.P. 12(b)(1). For the reasons stated below, Defendants' motion to dismiss is GRANTED IN PART AND DENIED IN PART.



  A. Plaintiff's Employment at the ILR School

  Plaintiff began working at the ILR School on October 7, 1976. (Compl. ¶ 1).*fn1 The ILR School, a division of Defendant Cornell University, offers the nation's only four-year undergraduate program in industrial and labor relations. The school has several extension offices in the State of New York, including Buffalo, Rochester, Albany, Ithaca, New York City, and Long Island, which is where Plaintiff worked as the Director for the entire duration of his employment from October 7, 1976 until his termination on January 13, 2003. (Id. ¶¶ 3, 12)

  Plaintiff began his employment at the ILR School as an Extension Associate I, which is how the ILR School refers to instructors who work at its Extension offices. (Compl. ¶ 13). Extension associates have professional qualifications comparable to those of professors and associate professors at Cornell. (Id.). In 1988, Plaintiff "was promoted to Senior Extension Associate II, which was the ILR School Extension's version of "tenure." (Id. ¶ 14). At that time, ILR School Associate Deans Lois Gray and Ronald Seeber told him that "once Cornell and the ILR School appointed him a Senior Extension Associate II, he had the equivalent of tenure, and, accordingly, could not be fired other than for cause or budgetary exigencies whereby the school was unable to continue paying his salary. (Id. ¶ 16).

  B. Harassment and Termination of Plaintiff

  Beginning in 2000, Cornell, the ILR School, and Defendant Ann Martin, associate Dean of the ILR School until Cornell terminated her position in December 2002,*fn2 allegedly tried for two and half years to force him to retire by constant pressure, threats, and harassment regarding his age. (Compl. ¶ 20). For example, Martin first suggested that Plaintiff retire during a meeting on November 2, 2000, and allegedly repeated several times at this meeting that he should consider retiring and that "it's time" for him to retire. (Id. ¶ 21). Plaintiff next saw Martin at a meeting in New York City on February 6, 2001, where she allegedly asked him if he was considering her suggestion to retire. (Id. ¶ 22). Subsequently, Plaintiff ate dinner in Manhattan with Martin on April 18, 2001 where she again allegedly asked Plaintiff if he planned on retiring. Moreover, at that same dinner, she supposedly "threatened to find someone else to do his work and that he should begin some serious retirement planning." (Id. ¶ 23).

  Thereafter, at a District Directors meeting in New York City on December 5, 2001, Martin announced that a committee would meet the next day to discuss the future of the Long Island office and allegedly told Plaintiff specifically that his attendance was not necessary, although he had been the Director of that Office for nearly 25 years. (Compl. ¶ 26). On December 18th, Martin and Plaintiff met at JFK Airport where she allegedly told Plaintiff his office would have to produce savings or increased income in the amount of $20,000 to $25,000 by June 2002 and function with one less employee. Additionally, Plaintiff claims Martin "threatened to break the lease and close the Long Island Office either partially or completely." (Id. ¶ 27).

  From January to June 2002, Plaintiff reduced the Long Island office's operating costs by approximately $25,000 while working with one less employee. (Id. ¶ 28). Meanwhile, on January 23, 2002, Martin allegedly told Plaintiff that if he would relinquish the position of Director she would stop harassing him to retire. (Id. ¶ 30).

  On October 4, 2002, Martin met with Plaintiff at the Long Island office and informed him that Defendant Edward Lawler, Dean of the ILR School, had decided to close the Long Island Office to save money. (Id. ¶ 31). She allegedly stressed that the decision to close the Office was not made as a result of poor performance, and that in fact the office "was overachieving despite being understaffed." (Id.). Thereafter, during a conference call between ILR School Deans and Directors on October 9, Lawler allegedly told Plaintiff that ILR needed to save $500,000 and that some people might need to retire. (Id. ¶ 32). During this conversation, Martin supposedly said, "I know Tom Germano is sitting quietly in a great deal of pain, and I thank you for that, Tom. I'm sure others are feeling for you as I am." (Id.).

  On October 24, 2002, Plaintiff allegedly received a letter from Lawler stating that Plaintiff's employment had been terminated for financial reasons effective July 1, 2002. (Id. ¶ 33). The letter did not mention performance or managerial problems. (Id.). The only other employee at the Long Island Extension office whose employment was terminated was a woman over 70 years old with only 2½ years service to Cornell while the other employees, all junior and younger than Plaintiff, were allegedly offered employment with the ILR School's New York City district office. (Id. ¶ 34). However, after the Long Island Federation of Labor and the Long Island Labor Advisory Board threatened to lobby for an alternative provider of labor education in Long Island, the Long Island Office remained open and Plaintiff kept his job as Director. (Id. ¶ 39-40).

  On December 23, 2002, Plaintiff sent an email to Lawler seeking confirmation that the Long Island office's current level of staffing would be retained and that a vacant labor studies support position could be filled. (Compl. ¶ 47). According to Jack Caffey, the President of the Long Island Federation of Labor, Plaintiff allegedly had the authority to hire up to the current level of staff working at the Long Island Office at that time, plus fill the labor studies support position that had been vacant. (Id. ¶ 48). On December 24, 2002, Plaintiff sent a letter to Margaret Sipser Leibowitz, an ILR School employee who was teaching ILR classes in Ithaca in the fall of 2002, and called Tina Hament "to see if either or both would fill the one vacant position and one soon-to-be vacant position in the Long Island Office, respectively." (Id. ¶ 49). Plaintiff claims both prospective employees were aware that any offer of employment Plaintiff made was contingent upon approval from Cornell. (Id.). A copy of the letter Plaintiff sent to Ms. Leibowitz was sent simultaneously to Lawler. (Id.).

  Then, on January 3, 2003, Lawler responded to Plaintiff's December 23, 2002 email, and confirmed that Plaintiff had authority to keep current labor staffing, including sufficient staff support. (Compl. ¶ 50). Three days later, Plaintiff contacted Lawler's office on to confirm that he had authority to fill the labor staff support position that had been vacant since April 2002. (Id. ¶ 51). Later that same day, an employee in Lawler's office emailed Plaintiff and informed him that Lawler would not permit him to fill this position and Lawler would make no specific decisions about staffing in the Long Island office until the needs assessment for statewide labor was completed. (Id. ¶ 52).

  On January 13, 2003, Plaintiff met Defendants Seeber and Lawler. (Compl. ¶ 53). At this meeting, these Defendants gave Plaintiff a letter, which stated that his employment with the ILR School was terminated because he had offered Ms. Leibowitz a position. (Id.).

  C. Procedural History of the Present Action

  On February 13, 2003, Plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC") alleging that Defendants terminated his employment because of his age in violation of the ADEA. (Compl. ¶ 8; Affidavit of Nelson E. Roth ["Roth Aff."], Ex. 2 (Charge of Discrimination)). On September 8, 2003, the EEOC dismissed Plaintiff's administrative charge, and informed him that he could file a private ADEA lawsuit in United States District Court within 90 days without a "right-to-sue" letter. (Compl. ¶ 9; Roth Affidavit, Ex. 3 (Letter from EEOC to Plaintiff, dated September 8, 2003)).

  Thereafter, on December 9, 2003, Plaintiff commenced the present action by filing his Complaint, alleging five causes of action: (1) an ADEA claim for employment discrimination-specifically, on-the-job harassment and eventual termination — on the basis of Plaintiff's age (Compl. ¶ 62); (2) a New York State Human Rights Law Claim for age discrimination in employment based on the same conduct (id. ¶ 67); (3) a New York City Human Rights Law claim for age discrimination in employment (id. ¶ 72); (4) a breach of contract claim for allegedly terminating Plaintiff without cause in violation of an alleged contract under which he had life tenure, (id. ¶¶ 16, 77-79); and (5) a breach of implied-in-fact contract for terminating Plaintiff despite Cornell and the ILR School's alleged prior treatment of Senior Extension Associate II's as tenured. (Id. ¶ 86). Defendants now move to dismiss the latter three claims pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may granted.


  A. Rule 12(b)(1) Dismissal

  Defendants move to dismiss Plaintiff's NYCHRL claim pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction. However, because this court has original federal question jurisdiction over plaintiff's federal ADEA claim under 28 U.S.C. § 1331, and because the NYCHRL claim arises out of the "same nucleus of operative facts" as the ADEA claim, the Court clearly has supplemental subject matter jurisdiction over this latter claim under 28 U.S.C. § 1367(a). United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Promisel v. First American Artificial Flowers, 943 F.2d 251, 254 (2d Cir. 1991) (noting that § 1367(a) codified the availability of pendant jurisdiction as set forth in Gibbs), cert. denied, 502 U.S. 1060, 112 S.Ct. 939, 117 L.Ed.2d 110 (1992). Accordingly, Defendants' Rule 12(b)(1) motion is wholly without merit.

  B. Rule 12(b)(6) Dismissal

  In deciding a Rule 12(b)(6) motion, the Court must read the complaint generously, accepting as true all factual allegations therein and drawing all reasonable inferences in favor of the plaintiff. Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995); Mills v. Polar Molecule Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). Dismissal is only proper when "it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02 (1957)). Because a Rule 12(b)(6) motion is used to assess the legal feasibility of a complaint, a court should not "assay the weight of the evidence which might be offered in support thereof." Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). Rather, consideration of a Rule 12(b)(6) motion is limited to the factual allegations in the complaint, documents attached to the complaint as exhibits or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiff's possession or of which plaintiffs had knowledge and relied on in bringing suit. Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993) (citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991), cert. denied, 503 U.S. 960, 112 S.Ct. 1561 (1992)). 1. NYCHRL Claim

  Under the New York City Human Rights Law, it is unlawful for an employer to discriminate against or discharge an employee on the basis of his or her age. N.Y.C. Admin. Code § 8-107(a). Both New York State law and the New York City Administrative Code limit the applicability of the NYCHRL to acts occurring within the boundaries of New York City. See N.Y. Gen. Mun. Law § 239-s (1999); N.Y.C. Admin. Code § 2-201 (2003). Consequently, in order to state a claim under the NYCHRL, all "plaintiffs must allege that the defendants intentionally discriminated against them within New York City." Casper v. Lieberbaum & Co., Inc., No. 97 Civ. 3016, 1998 WL 150993 at *4 (S.D.N.Y. Mar. 31, 1998).

  "To determine the location of the discrimination, courts have looked to the location of the impact of the offensive conduct." Salvatore v. KLM Royal Dutch Airlines, No. 98 Civ. 2450, 1999 WL 796172 at *16 (S.D.N.Y. Sept. 30, 1999) (citing Casper, 1998 WL 150993 at *5) (emphasis added). In Casper, plaintiffs worked in Garden City, and the alleged gender discrimination occurred over an interoffice microphone system from New York City to Garden City while plaintiffs were in Garden City. Casper, 1998 WL 150993 at *5. Judge Koeltl dismissed the case because the comments impacted plaintiffs solely at the Garden City office. Id. "Plaintiff must show more than the happenstance that a defendant has an office in New York City." Id. at *4 (citing Lightfoot v. Union Carbide Corp., No. 92 Civ. 6411, 1994 WL 184670 at *5 (S.D.N.Y. May 12, 1994), aff'd, 110 F.3d 898 (2d Cir. 1997)).

  Defendants argue that Plaintiff cannot as a matter of law maintain his NYCHRL claim because the alleged discrimination did not take place in New York City. (Def. Mem. Law at 7-8; Def. Reply at 1-2). Plaintiff alleges in his Complaint that Defendants discriminated against him at four meetings and dinners that took place in New York City at which Martin harassed and pressured him to retire. Assuming such conduct constitutes discrimination, Plaintiff still only felt the impact of that discrimination in his place of occupation, Long Island, not New York City. See Salvatore, 1999 WL 796172 at *17 (finding that alleged "isolated incidents" of sexual and racial harassment occurring in New York City did not establish that the "whole or substantial part" of the alleged employment discrimination took place in New York City because the allegedly hostile work environment created by such incidents was in Westchester County-plaintiffs' place of employment — not New York City).

  The facts of the present case mirror those in Salvatore. Like the Plaintiff here, the Salvatore plaintiffs were employed outside of New York City. Furthermore, the Salvatore plaintiffs were not subject to any adverse employment action, such as termination or denial of overtime pay, benefits or promotions, in New York City. 1999 WL 796172 at *17. Instead, the plaintiffs only alleged that defendant created a hostile working environment by making sexually suggestive and racial harassing remarks and unwanted sexual advances during a company outing in New York City and one of plaintiffs' visits to defendant's home in New York City. Id. at * 15. Ultimately, the court agreed with the defendant that these isolated incidents impacted plaintiffs' employment only in Westchester County — their place of employment — not New York City, and dismissed their NYCHRL claim under Rule 12(b)(6). Id. at *15-17. Thus, to the extent that the present Plaintiff's NYCHRL claim rests on the aforementioned four incidents of harassment by Martin in New York City, it cannot survive Rule 12(b)(6) dismissal.

  Plaintiff in turn argues that because the January 13, 2003 meeting at which he was finally terminated took place in New York City, this case is analogous to Launer v. Buena Vista Winery, 916 F.Supp. 204 (E.D.N.Y. 1996), in which the district court found that the plaintiff who had been terminated at a meeting in New York City and had discriminatory remarks faxed to him at his New York City phone number had suffered discrimination in New York City. 916 F.Supp. at 214; (Pl. Mem. at 6-7). However, Plaintiff's Complaint makes no mention of the fact that such termination meeting occurred in New York City. Moreover, even if the Court takes notice of such fact, the present case is still distinguishable from Launer because while the plaintiff in Launer was terminated in New York City, he also maintained an office for the defendant employer in New York City and attended periodic regional company sales meetings there. Launer, 916 F.Supp. at 206. In contrast, Plaintiff did not maintain an office or any other workspace in New York City, nor did he perform any of his job-related duties there.

  Instead, Plaintiff's situation is more analogous to the plaintiff in Lightfoot v. Union Carbide Corp.. In Lightfoot, the plaintiff worked in Connecticut, and he occasionally brought work home with him to his residence in New York City. In addition, the defendants in that case approved the plaintiff's termination at a meeting in New York City. Nevertheless, Judge Patterson granted summary judgment in favor of the defendant on the plaintiff's NYCHRL claim, finding that the impact of defendant's alleged adverse employment action on the plaintiff occurred while the latter was employed in Connecticut. Lightfoot, 1994 WL 184670 at *5. Accordingly, in the present case, Plaintiff has failed to allege that Defendants' adverse employment actions impacted him in New York and therefore cannot state a viable cause of action under the NYCHRL.

  2. Breach of Contract

  Plaintiff's fourth cause of action alleges that in terminating him from his position as a Senior Extension Associate II "without cause", Defendants breached their contract with him under which he allegedly was guaranteed life tenure and could only be fired "for cause and/or budgetary exigencies." (Compl. ¶¶ 78-79). Such contract, which was allegedly oral rather than written, was in turn supposedly based on Defendants Gray and Seeber's alleged representation to Plaintiff that he had the "equivalent of tenure" upon his appointment as a Senior Extension Associate II, and the policies of Cornell and the ILR School, under which a Senior Extension Associate II is allegedly treated as "a tenured faculty member." (Id. ¶¶ 16-17, 77).

  However, the Cornell Faculty Handbook, which was submitted in conjunction with Defendants' Motion to Dismiss (see Affidavit of Nelson E. Roth ["Roth Aff."], Ex. 17) and which the Court may consider because it contains some of the "policies of Cornell" referred to in the Complaint (see Compl. ¶ 77), directly contradicts Plaintiff's version of the contract terms as set forth in the Complaint.*fn3 The Handbook in fact explicitly provides that rather than enjoying life tenure, "Senior Extension Associates are appointed for terms of up to five years and may be reappointed on the basis recommendations by the department and the appropriate extension director and deans(s)." (Roth Aff., Ex 17 at 33). Thus, the Complaint's allegations do not establish the existence of an oral contract for tenure between Defendants and Plaintiff. See Matusovsky v. Merrill Lynch, 186 F.Supp.2d 397, 400 (S.D.N.Y. 2002) ("If a plaintiff's allegations are contradicted by ? a document [attached to or incorporated by reference into the complaint], those allegations are insufficient to defeat a motion to dismiss."); In re Bristol-Myers Squibb Sec. Litig., 312 F.Supp.2d 549, 555 (S.D.N.Y. 2004) ("The court need not accept as true an allegation that is contradicted by documents on which the complaint relies.") (citation omitted).*fn4 Accordingly, Plaintiff's breach of contract claim must be dismissed.

  3. Breach of an Implied-in-Fact Contract

  Plaintiff also alleges that even if there was no express employment contract granting him tenure, the parties had entered into an implied-in-fact contract under which he had tenure. (Compl. ¶ 83). This implied-in-fact contract, Plaintiff claims, arises from Defendants' conduct, the treatment of other Senior Extension Associate II's as having tenure, and the policies of Cornell and the ILR School. (Id. ¶¶ 84-86).

  "A contract implied in fact may result as an inference from the facts and circumstances of the case, although not formally stated in words . . . and is derived from the presumed intention of the parties as indicated by their conduct." Jemzura v. Jemzura, 36 N.Y.2d 496, 503-04, 369 N.Y.S.2d 400 (1975) (internal quotations and citations omitted). While an implied in fact contract is equally binding as an expressed contract, id., and, like an express contract, requires mutual assent evincing the intention of the parties to be bound by specific contractual terms, see Maas v. Cornell Univ., 94 N.Y.2d 87, 93-94, 699 N.Y.S.2d 716 (1999) (citations omitted), it "rests upon the conduct of the parties and not their verbal or written words." Parsa v. New York, 64 N.Y.2d 143, 148, 485 N.Y.S.2d 27 (1984).

  As an initial matter, Defendants argue that "[a] plaintiff may not rely on an implied-in-fact contract where an express contract governs the subject matter." (Def. Mem. at 10). While Defendants have correctly stated the law, see Stissi v. Interstate & Ocean Transp. Co. of Philadelphia, 814 F.2d 848, 851 (2d Cir. 1987) ("It is an elementary principle of contract law that, where there exists an express contract for compensation, an action outside that contract will not lie."); Muhitch v. St. Gregory the Great Roman Catholic Church and School, 239 A.D.2d 901, 659 N.Y.S.2d 679, 680 (4th Dep't 1997) ("Where, as here, an express contract exists between the parties concerning the same subject matter, there may be no recovery upon a theory of implied contract."), such rule has no application in the present case where, as stated above, there was no express employment contract giving Plaintiff tenure.

  Nevertheless, Plaintiff has failed to allege adequately the existence of an implied-in-fact contract between him and Defendants giving him lifetime tenure in employment. The Complaint's general reference to Cornell and the ILR School's "conduct indicat[ing] to [Plaintiff] that he was a tenured faculty member" (Compl. ¶ 84) is too vague to overcome a Rule 12(b)(6) motion. See Electronics Communications Corp v. Toshiba, 129 F.3d 240, 243 (2d Cir. 1997) (holding that conclusory statements in a complaint will not substitute for sufficient factual allegations when trying to overcome a motion to dismiss). Moreover, as discussed above, his allegations that granting him tenure was consistent with Defendants' treatment of other Senior Extension Associate II's and with Cornell and ILR School Policy are directly contradicted by the Cornell Faculty Handbook itself and thus carry no weight with the Court.

  Accordingly, the Court also finds that Plaintiff has failed to a state viable claim for breach of implied-in-fact contract.

  C. Leave To Amend

  Having found that Plaintiff's NYCHRL, contract, and implied-in-fact contract claims must be dismissed pursuant to Rule 12(b)(6), the Court must next determine whether Plaintiff should be granted leave to amend its Complaint to cure the defects in these three causes of action. Under F.R.C.P. 15(a), leave to amend "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). However, although "[i]t is the usual practice upon granting a motion to dismiss to allow leave to replead," Cortec Industries, Inc., 949 F.2d at 48 (citing Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir. 1990), a court may dismiss without leave to amend when amendment would be futile. Oneida Indian Nation of New York v. City of Sherrill, 337 F.3d 139, 168 (2d Cir. 2003) (citing Foman v. Davis, 371 U.S. 178, 182,83 S.Ct. 227, 230, 7 L.Ed.2d 385 (1962)). Ultimately, the decision to grant leave to amend a complaint rests within the discretion of the district court. Foman, 371 U.S. at 182, 83 S.Ct. at 230.

  With respect to Plaintiff's NYCHRL claim, no additional amount of pleading will establish that Plaintiff felt the impact of the alleged discrimination in New York City. After all, Plaintiff's office was in Long Island. Even if Plaintiff alleges more acts of discrimination during meetings in New York City, the impact of such discrimination was still on Plaintiff's employment in Long Island. Similarly, as discussed above, even if Plaintiff alleges the termination meeting was in New York City, the impact of that meeting on plaintiff's employment was also in Long Island. Thus amendment of this claim would be futile. The same can also be said for Plaintiff's contract and implied-in-fact contract claims because no amount of additional allegations in the Complaint would change the fact that Cornell and the ILR's School's employment policy with respect to Senior Extension Associates, as expressly reflected by the Faculty Handbook, was to offer them 5-year employment terms rather than lifetime tenure.

  Accordingly, leave to amend is denied with respect to all three of Plaintiff's dismissed claims.


  For the reasons stated above, Defendants' Motion to Dismiss under Rule 12 (b) (1) is DENIED, but their Motion to Dismiss the three causes of action under Rule 12 (b) (6) is GRANTED. Accordingly, Plaintiff's New York City Human Rights Law, breach of express contract, and breach of implied-in-fact contract claims are DISMISSED WITH PREJUDICE. Defendants are directed to answer Plaintiff's two remaining causes of action within twenty (20) days of the date of this Order. Upon joinder of the remaining issues, a Rule 16 conference shall be scheduled by the Court.



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