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Barry v. City University of New York

March 31, 2010


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


Plaintiff James Barry ("Barry" or "plaintiff") brings this lawsuit alleging age discrimination and intentional infliction of emotional distress against the City of New York, the City University of New York ("CUNY"), Hunter College ("Hunter"), Robert McGarry ("McGarry"), and Anand Padmanabhan ("Padmanabhan"). On February 4, 2010, defendants City University of New York and Hunter College (collectively, "CUNY")*fn1 filed a motion to dismiss Barry's amended complaint.*fn2 For the following reasons, CUNY's motion is granted in its entirety.


The following facts are drawn from the plaintiff's January 26, 2010 amended complaint (the "Complaint") and are assumed to be true for the purposes of deciding this motion. Barry is employed by Hunter, a college within the CUNY system. McGarry and Padmanabhan were, throughout most of the events giving rise to this litigation, the Director of Human Resources and Chief Information Officer, respectively, at Hunter.

The plaintiff started at Hunter in January 1981, when he was hired to work as a Computer Operator to manage the college's data processing needs. Barry's job classification in this role was Assistant to Higher Education Officer ("aHEO").*fn3 In 1984, because of Barry's outstanding job performance, he was transferred from an evening shift to a daytime position as Production Control Coordinator. The plaintiff's responsibilities in this second position grew over time: in 1984, there were three coordinators, but after several years, Barry became the sole coordinator, assuming the workloads of the two other employees who had left. In 1995, Barry became Telecommunications Coordinator.

In his current role as Help Desk Manager, a position he has held since 1998, Barry performs a variety of supervisory and administrative tasks within Hunter's Instructional Computing and Information Technology ("ICIT") department. As manager of the help desk, which is the "central point of contact for reporting technology problems" for users at various campuses, he receives more than 3,500 requests for troubleshooting and repair assistance each year, which he then assigns among a staff of technicians. Barry is also responsible for managing more than 2,000 faculty and staff members' computers, more than any other ICIT employee maintains; in this role, Barry upgrades computer software and hardware and receives users' questions and requests, which amount to 40-50 inquiries per day. Barry also "reports and maintains records pertaining to the transfer and disposal of computer equipment" so that ICIT's inventory records are accurately maintained. Barry also is responsible for various seasonal or intermittent responsibilities, such as distributing and installing computer equipment for new incoming faculty, maintaining the online staff and faculty directories, and communicating with outside vendors concerning special maintenance requests. The foregoing list is an illustrative, but not exhaustive, catalogue of Barry's job responsibilities.

Barry is still classified as an aHEO -- the same title he held in 1981 -- and he asserts that he is entitled to have his title reclassified to HEa. Barry states that he has been an employee of Hunter "with 28 years of continuous, outstanding, and dedicated service to the college." Moreover, the scope of his duties has grown considerably over the years, with steadily increasing responsibility for managerial work. As supervisor of the help desk for the past seven years, Barry alleges that he now has nine employees under his management and direction. Barry also asserts that he has received excellent work reviews: in his most recent performance evaluation, he received the highest rating in every category, and in January 2006, Barry received the "HEO Award" for outstanding service. Finally, Barry notes that, in 2002, he assumed the responsibilities of a co-worker whose title was HE Associate, which is two titles above Barry's current title. Barry maintains that all requirements for reclassification imposed by the University have been satisfied.

Barry's attempts to achieve reclassification have thus far proven unsuccessful. Barry alleges that he was recommended for reclassification by two supervisors, Padmanabhan and Mark Watters ("Watters"), Director of User Services, in about 2004. After no further communication from Watters or Padmanabhan concerning reclassification for over a year, Barry was instructed in August 2005 to speak with McGarry, the human resources director, to seek an explanation for the delay. McGarry told Barry that CUNY had a policy of not reclassifying IT staff unless the staffperson "work[s] in an academic department and spend[s] more than 50% of [his or her] time doing 'IT work.'"

Barry thereafter spoke with Leo Deuster, a union representative ("Deuster"). Deuster advised Barry to send a letter to Padmanabhan and Watters requesting that a formal reclassification process be initiated. Barry did so in October 2005. Receiving no response, Barry again contacted Deuster in late November 2005, at which time Deuster advised him that "if his job duties had increased by at least 30%, [he] should submit information to the Labor Management Committee at Hunter College." Barry submitted this information to the Labor Management Committee (the "LMC") on December 7, 2005. Included in these papers was a description of Barry's work history at Hunter, an explanation of how Barry's responsibilities had grown over the past five years, a list of reasons why the plaintiff should be promoted, and a statement that Watters supported his request. Watters followed up by sending an email to the head of the LMC on January 30, 2006 explaining the growth in Barry's job responsibilities.

Barry's application for reclassification thereafter began to proceed favorably. On March 8, 2006, Barry received notice from the LMC that "steps had been taken for papers to be sent to [the] HEO Screening Committee for approval." The HEO Screening Committee approved Barry's reclassification request on June 9, 2006. At that point, McGarry informed Barry that the next step would be "approval from 80th Street," which McGarry said "usually happens within fifteen business days."*fn4

Final approval was not forthcoming, however. Instead, throughout the summer, Barry and McGarry exchanged various emails concerning the status of Barry's reclassification request, and McGarry made inquiries with central management on Barry's behalf. In July, Padmanabhan left CUNY for a position at another university. Then, on August 9, McGarry emailed Watters to note that, according to the most recent organizational chart available to human resources, Barry was supervising only two people, both of whom were college assistants. Watters responded by identifying eight staff members who were supervised by Barry. McGarry further inquired whether Barry conducted their performance evaluations; Watters replied that the plaintiff completed four of the evaluations himself, but that Watters assisted Barry in completing three others. One week later, on August 16, McGarry ceased responding to Barry's email status inquiries. Throughout that autumn, Barry did not receive formal approval for reclassification. On December 4, 2006, however, Padmanabhan's successor sent Barry a letter with benefits and salary information for "Computer Systems Manager" positions.

One of these positions was then offered to Barry under a "Provisional title." Barry was told that if he accepted this position, he would no longer be a member of the union and would yield certain benefits. Barry consulted with a representative at the PSC*fn5 concerning this proposal and explained to her that he felt pressured to accept the provisional job instead of pursuing the HEa title. The PSC representative responded that that was possibly a violation of applicable labor agreements and regulations.

On January 3, 2007, the PSC filed a Step I Grievance on Barry's behalf to challenge the apparent denial of his reclassification request. A Step I hearing was held on February 15, 2007, and Barry's grievance was denied on March 20, 2007. Barry does not state whether he attempted to appeal the denial of his Step I grievance.

In the Complaint, the plaintiff asserts that the denial of his request for reclassification amounted to unlawful age discrimination. Barry alleges that similar reclassifications were approved for at least six other employees in his department based upon those employees' increased workloads, with at least four of the promotions occurring over the past year and given to individuals under thirty-five-years old. The plaintiff asserts that he is similarly situated to these other individuals insofar as they are also union members, "[t]hey all do the same work [as] the plaintiff," and "there is no differentiation in their duties." Barry also alleges that the criteria employed during his reclassification application process differed from those used for others. For example, Barry was asked what percentage of time he spent doing "instructional duties," which none of the others promoted in ICIT were required to address. Barry also appears to allege that ...

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