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Lomako v. New York Institute of Technology

May 13, 2010


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


Plaintiff Gennady Lomako ("Lomako" or "Plaintiff"), proceeding pro se, filed his initial Complaint in this action against Defendant New York Institute of Technology ("NYIT" or "Defendant") on July 6, 2009. Lomako filed an Amended Complaint on December 23, 2009, in which he added two Defendants: Heskia Heskiaoff and Ayat Jafari (the "Individual Defendants"). The Amended Complaint is virtually identical to the initial Complaint in its allegations, except that it adds one additional cause of action, but in essence it alleges various claims that relate to Lomako's employment with NYIT. Specifically, Lomako brings claims for (1) hostile work environment, retaliation and discrimination on the basis of his national origin, age and disability pursuant to (a) the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), (b) the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), (c) the Americans with Disabilities Act, 42 U.S.C. § 12112 et seq. ("ADA"), (d) the New York State Human Rights Law, N.Y. Exec. L. § 296 ("NYSHRL") and (e) the New York City Human Rights Law, N.Y.C. Admin. Code § 8-502 ("NYCHRL"); (2) conspiracy to violate civil rights under 42 U.S.C. § 1985; (3) negligence in failing to prevent such conspiracy under 42 U.S.C. § 1986; (4) breach of the collective bargaining agreement ("CBA") between NYIT and his union, the American Association of University Professors at the New York Institute of Technology, Inc. ("AAUP NYIT") (5) breach of an alleged oral agreement between himself and NYIT; (6) extortion under N.Y. Penal Law § 155.99-155.45; and (7) detrimental reliance. NYIT now moves to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, NYIT's motion is granted.*fn1


Plaintiff is a 60-year-old man of Russian national origin. Plaintiff began his employment at NYIT in 1992 as an adjunct professor of computer science. While maintaining an adjunct professorship position at NYIT, Plaintiff also obtained a position as a tenured associate professor at the Bloomfield College of New Jersey. In the spring of 2000, NYIT advertised an open position for a tenure-track professorship in the Computer Science Department at its Manhattan Campus. Lomako, having been awarded a research grant from the Panasonic Information and Networking Technologies Laboratory ("PINTL"), was told by certain members of the NYIT administration that he was in a good position to be considered for the new tenure-track position. Lomako attended an interview for the position in July 2000; after the interview, he was informed that he had been recommended for the position, but as a condition of his acceptance of the position, Lomako demanded "tenure on the spot." He was allegedly informed that there would be "a problem" with his PINTL grant if he did not accept a non-tenured position at NYIT for fall of 2000. Although the allegations of Lomako's complaint do not clearly elucidate the chronology of events, it appears that he began to teach as a full-time, but not tenured, professor at NYIT's Old Westbury campus in January 2001. Apparently Lomako understood that he had accepted the position based on a promise of tenure in the future, as well as a transfer to the Manhattan campus, but a tenured position never was forthcoming and his transfer was repeatedly denied.

Throughout his employment from 2001 until his termination in 2006, Lomako alleges that NYIT repeatedly "breached the AAUP-NYIT collective-bargaining agreement" because, among other things, it denied his requests for written criteria for tenure and reappointment, failed to develop or transmit additional specific requirements for tenure, cancelled requests for research grants, failed to give written performance evaluations, and subjected Lomako to increased supervision. The CBA includes a three-step grievance process. First, union members are to attempt to resolve issues informally. If the matter is not resolved, the member may file a grievance within thirty days of the alleged wrong. After a conference is held, and if no resolution is reached, the union or NYIT may notice the grievance for arbitration before the American Arbitration Association within ten days of receipt of the decision after the second step of the process. Although Lomako alleges that he spoke with and received advice from union officials on several occasions beginning in May 2003, the Complaint does not allege that any formal grievance was filed.*fn3

Lomako also alleges that on several occasions during his employment, he was the victim of discrimination and harassment. For example, the Chairman of the School of Engineering and Technology, Dr. Jafari, once stated that "[t]his is not Russia. . . [i]f you don't like it you can go home." Dr. Jafari also allegedly told Lomako in the spring of 2002 that "he knew Russians; that they could not work independently and had to be controlled; Russians do not know how to manage grants and money and [Lomako] could do a good job only if [Dr. Jafari] controlled [him]; this is not the Soviet Union." Lomako also alleges that he "was treated worse than younger professors." In March 2003, Lomako alleges that Dr. Jafari threatened that he would not support Lomako's tenure, and wrongfully accused Lomako of paying to have his articles published, assuring Lomako that "he knew Russians well, and this is not Russia." As a result of this alleged harassment and discrimination, Lomako alleges that his health deteriorated and that he developed anxiety, depression, angina, hypertension and insomnia. In April 2004, the President of the AAUP-NYIT allegedly supported Lomako in making a request for accommodation of these conditions by obtaining a transfer to NYIT's Manhattan campus. The transfer request was denied in July 2004.

Ultimately, on May 23, 2005, the Provost of NYIT, Alexandra Logue, sent Lomako a letter informing him that the NYIT Board of Trustees did not act favorably upon his application for reappointment for the following academic year. Lomako alleges that after he received the May 23 letter, he continued to receive communications from the AAUP-NYIT, and was told that there was a possibility that the Vice President would reconsider Lomako's reappointment. Lomako "took this reconsideration to mean that the letter dated May 23, 2005 was not necessarily [NYIT's] final decision." That expectation never came to fruition, however, as Lomako then received another letter, dated August 22, 2005, that acknowledged that the 2005-2006 academic year would be his terminal year of appointment.


Lomako filed his administrative complaint with the New York State Division of Human Rights ("DHR") on May 22, 2006, charging NYIT with discrimination based on age, disability, national origin and retaliation. Lomako contends that he requested that the complaint be "dual-filed" with the Equal Employment Opportunity Commission ("EEOC"), but this was never done. The DHR investigator held a conference on February 9, 2009, at which testimony was heard from witnesses, including Dean Heskiaoff and Dr. Jafari. On February 27, 2009, the DHR issued its "Determination and Order After Investigation" in which it stated that "[a]fter investigation and following opportunity for review of related information and evidence by the named parties, the Division has determined that there is NO PROBABLE CAUSE to believe that [NYIT] has engaged in or is engaging in the unlawful discriminatory practice complained of." The DHR also determined that all of Plaintiff's allegations of discrimination that occurred before May 22, 2005 were time-barred. Plaintiff was advised that he could appeal the determination to the New York State Supreme Court within sixty days after service of the DHR's determination. Plaintiff did not appeal the DHR's determination; rather, he filed a separate charge with the EEOC on April 8, 2009 alleging violations of Title VII and the ADA, and received a Notice of Right to Sue letter on April 9, 2009. Plaintiff filed his Complaint in this action on July 6, 2009 and filed his Amended Complaint on December 23, 2009.

On April 8, 2010, Plaintiff moved for leave to amend his Complaint yet again, in order to assert additional discriminatory acts of retaliation as part of the "continuing violation" of his Title VII rights. See Pl's Notice of Motion, Apr. 8, 2010. Plaintiff received an additional Right to Sue letter on January 14, 2010, and his proposed Second Amended Complaint contains four new paragraphs of allegations that he asserts are relevant to his argument that he is the victim of a "continuing violation" of rights as guaranteed by Title VII. Defendants argue that Plaintiff should not be granted leave to amend his Complaint yet again, because the Pre-Trial Scheduling Order prohibits adding causes of action or defenses after February 2010. See Order, Nov. 4, 2009 (Docket No. 7). The Court agrees with Defendants and therefore denies Plaintiff's motion file a Second Amended Complaint.


A. Legal Standard on Motion to Dismiss

According to the Supreme Court's most recent decisions, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. __, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). The requirement that the court accept all factual allegations as true does not apply to "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Id. The court's determination of whether a complaint states a "plausible claim for relief" is a "context-specific inquiry" that requires application of "judicial experience and common sense." Id.

With respect to employment discrimination cases, in Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002), which preceded Twombly and Iqbal, the Supreme Court rejected a ...

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