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Melie v. EVCI/TCI College Administration

May 20, 2009


The opinion of the court was delivered by: Hon. Harold Baer, Jr., United States District Judge


Plaintiff Ora Melie ("Plaintiff" or "Melie") brought this action alleging (1) discrimination based on his race and national origin in violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and 42 U.S.C. § 1981; (2) retaliation in violation of Title VII and § 1981; and (3) wrongful termination in violation of section 510 of the Employment Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1140.*fn1 Defendants EVCI/TCI College Administration*fn2 ("TCI" or the "College"), Peter Slater ("Slater"), Sayed Akhavi ("Akhavi") and Nannette Jacobs ("Jacobs") (collectively, "Defendants") move for summary judgment on each of Plaintiff's claims.*fn3 For the reasons set forth below, Defendants' motion is granted.


TCI College is a two-year technical school located in New York City, and offers continuing technical education in fields such as website design, health information technology, and electronic engineering technology. Slater is the Provost and Vice President for Academic Affairs of the College; Akhavi is Dean of Technology in the Engineering and Information Technologies Division; and Jacobs is a member of the College's faculty, and also serves as Unit Chairperson and Chief Union Shop Steward for Local 2110 UAW. Plaintiff was hired in May 2001 as an instructor of Computer Networking in the Engineering Division of the College. The College is a party to a collective bargaining agreement ("CBA") with Local 2110 of the UAW (the "Union"), of which Plaintiff is a member, and which represents full-time and part-time faculty members and clerical employees at the College. At all times during Plaintiff's employment at the College, the terms and conditions of his employment have been subject to the CBA.*fn4

In his Amended Complaint and EEOC charges, Plaintiff outlines several incidents over several years that he claims were motivated by race or national origindiscrimination. First, in September 2005, shortly after EVCI purchased TCI College, Dr. John J. McGrath, President of EVCI, held a meeting with College faculty in which he reflected his intention and desire to increase minority enrollment. During his remarks, McGrath bemoaned the factthat in the near future most back males of 35 years of age would have spent time inprison. Plaintiff alleges that this remark was discriminatory because Plaintiff was the only black male faculty member in attendance. Understandably, he took a different position at his deposition and admits in his Rule 56 Statement, that McGrath was not speaking directly to him when he made this comment, and he did not take personal offense atMcGrath's comment. In another far-fetched charge of discrimination, Plaintiff alleges that Jacobs, as the College's Union representative, acted in concert with Akhavi to hire a less-qualified faculty member to head faculty development training. At his deposition, Plaintiff acknowledged that although he objected to Mr. Fortuna's appointment, he had no facts to support an allegation that Mr. Fortuna's appointment included an iota ofrace or nationality-based discrimination. Indeed, in his EEOC charge, Plaintiff acknowledges that it was Chairman Roy Lau, and not Defendants Jacobs or Akhavi, who made the decision to appoint Mr. Fortuna to the faculty training position.

A third charge grew out of anincident that occurred in approximately March 2006, when Plaintiff engaged in a discussion with Defendant Akhavi in which he expressed his dissatisfaction with analleged under-payment for a course outline he had written. Although the specific content of the conversation is not clear from either party's rendition of the facts, it appears that at some point, Plaintiff made mention of guns. In his incident report, Akhavi stated that in complaining about his compensation, Plaintiff stated "No, this is serious, I have a gun and will use it if I have to . . . it shoots seven rounds a minute." Plaintiff, on the other hand, characterizes his comments simply as a figure of speech to the effect that he had "big guns" looking into the payment issue. After Akhavi filed his report, the New York City Police Department interviewed Plaintiff. The police asked Plaintiff whether he had a gun, and Plaintiff responded that he did not. Plaintiff was not placed under arrest, and the police took no further action. In April 2006, Slater issued a written warning to Plaintiff for his use of language that could be construed as menacing, but no further disciplinary action was taken following the "gun incident." No allegation claims that whatever happened was even tainted with discriminatory animus.

A fourth allegation took place in June 2006. Plaintiff had a meeting with Defendant Slater to discuss Plaintiff's request to attend a seminar to be held in Boston. During that meeting, Plaintiff alleges that Slater told thePlaintiff that hehad a propensity for violence, which Slater attributedto his Nigerian nationality; Plaintiff paraphrased Slater's comments as follows: "Nigeria was a place of unrest where people are always killing each other." Plaintiff does not recall the exact words that Slater used.

Moving right along, at the beginning of August 2006, Dean Pansy James, Vice President of Academic Administration and Student Development, determined that anticipated enrollment in the Networking major in the Engineering and Information Technology Division of the College would be lower than in previous semesters and that cuts in faculty would need to be made.*fn5 In accordance with the terms of the CBA, the College determined that the three faculty members with the least seniority would be reduced from full-time to part-time course loads. These faculty members were Dr. Shah Alam, Plaintiff, and Mr. Vijilio Morales, in order of descending seniority. Dr. Alam was subsequently restored to full-time status. Mr. Morales, who is fluent in Spanish, was assigned to teach remedial math in the College's Learning Center to students for whom English was a second language.*fn6 Plaintiff does not speak or read Spanish, and has no experience teaching remedial math. Indeed, in his deposition, Plaintiff acknowledged that Mr. Morales was the logical selection to teach remedial math to Spanish-speaking students.*fn7

Plaintiff was provideda part-time schedulefor the Fall 2006 semester, beginning in September 2006, supplemented with night courses and tutorials. During that time, Plaintiff did not receive health insurance benefits because, pursuant to the terms of the CBA, health insurance benefits are provided only to full-time faculty. Plaintiff was restored to his position as a full-time instructor on March 12, 2007, retroactive to January 18, 2007, at which time his health insurance benefits were fully restored. Although Plaintiff was again reduced to a part-time adjunct position in the Summer 2007 term due to reduced student enrollment in his department, he was restored to his full-time position for the Fall 2007 semester, and has remained a full-time faculty member to this day. It appears that the period of time for which Plaintiff complains of his "partial layoff" and denial of benefits was for only one semester -- from September 2006 to January 2007.

In addition to his teaching responsibilities, Plaintiff had been involved in certain extra curricular activities. On August 6, 2006, Plaintiff was appointed as coach of the men's soccer team, and was to be compensated $2,500.00 for the season lasting from September 1 through November 24, 2006. However, Plaintiff was removed from the soccer coach position effective October 5, 2006 by the Athletic Director of the College, Pernell Hosier, a black male. Plaintiff testified at his deposition that he did not believe that his removal as coach had anything to do with his race or nationality, and that his removal was probably a consequence of Mr. Hosier's dissatisfaction with Plaintiff's performance as a soccercoach.*fn8 In addition, Plaintiff was removed from his volunteer position at open house events for prospective students as a consequence of his disparaging emails regarding his grievances against TCI following his partial layoff.


Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") on September 25, 2006 alleging discrimination based on his race and national origin. On October 23, 2006, the EEOC issued a Dismissal and Notice of Rights to Plaintiff, advising him that any private lawsuit that is filed based on the EEOC charge must be filed in United States District Court within ninety (90) days of his receipt of the notice. Plaintiff failed to file a federal lawsuit within the 90-day window, but on February 27, 2007, he filed a second charge with the EEOC alleging race, color and national origin discrimination and retaliation. The EEOC issued a second Dismissal and Notice of Rights on March 5, 2008. Plaintiff commenced this suit in timeon May 30, 2008, and filed an Amended Complaint on August 19, 2008.


A. Legal Standard on a Motion for ...

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