The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge:
Plaintiff Dr. Hengjun Chao, a medical researcher formerly employed by defendant Mount Sinai School of Medicine ("MSSM"), brought this action following his termination for research misconduct. His first five causes of action were dismissed in an Opinion and Order dated December 17, 2010. Defendants now seek summary judgment dismissing Chao's remaining claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and discrimination on the basis of race and national origin in violation of Title VII, New York State and City law, and 42 U.S.C. §1981. For the reasons that follow, the motion for summary judgment is GRANTED.
An extensive review of the background of this case is available in this Court's Opinion and Order on Defendants' motion to dismiss. See No. 10 Civ. 2869 (HB), 2010 WL 5222118(Dec. 17, 2010). Because the relevant facts are discussed throughout this Opinion, a brief synopsis of events will suffice here. On October 3, 2007, Defendant Dr. Ellen Cohn submitted a complaint of research misconduct against Chao to MSSM's research integrity officer, Dr. Reginald Miller. Pursuant to MSSM policy, Dr. Miller met with MSSM's research integrity committee and determined that the complaint was sufficiently credible and specific to carry forward. He then convened an Inquiry Panel. Compl. ¶¶ 31, 39-40. On December 6, 2007, the Inquiry Panel reviewed the complaint against Chao and recommended the commencement of a formal investigation. Compl. ¶¶ 40-43. Defendant Dean Charney appointed an Investigation Committee ("Committee" or "Investigation Committee") comprised of Defendant faculty members Dr. Mlodzik, Dr. Snoeck, Dr. Krulwich, Dr. Vlassara, and Dr. Godbold. These members came from various divisions of MSSM. Compl. ¶ 39. The Committee held 13 formal sessions in which it interviewed a variety of witnesses. Compl. ¶¶ 41, 62. The Committee provided a draft report to Chao, who responded with comments and objections on February 11, 2009. On April 7, 2009, the Committee issued its final report to Dean Charney. ("Report" or "Final Report"). The Report concluded that Chao had engaged in misconduct and failed to follow the "standards of good laboratory practice", and recommended an unspecified form of disciplinary action. On May 7, 2009, Charney terminated Chao's appointment to the faculty, based on the Committee's Final Report and his authority as Dean of MSSM. Compl. ¶ 63.
Chao sought review of his termination before MSSM's Faculty Disciplinary Tribunal ("Faculty Tribunal"). The Faculty Tribunal was convened by the Faculty Council, not the Dean, and was comprised of five doctors: Dr. Landrigan, Dr. Asbell, Dr. Laitman, Dr. Magid, Dr. Palese. Essig Aff. Ex. H. On November 19, 2009, the Faculty Tribunal affirmed Chao's termination. Chao appealed the decision of the Faculty Tribunal to MSSM's Board of Trustees. The Chairman of the Board of Trustees appointed an Appeals Board ("Trustees Appeals Board") consisting of three members of the Board of Trustees: George J. Grumbach, Blaine V. Fogg, and Bernard W. Nussbaum. Essig Aff. Ex. I. On March 16, 2010, the Board rendered its decision to sustain Chao's termination. Chao now seeks relief in this Court.
1.Summary Judgment Standard
Summary judgment is warranted if the moving party shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir. 2009); Fed. R. Civ. P. 56(c). "[M]ere speculation and conjecture is insufficient to preclude the granting of the motion." Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir.2007). "[T]he opposing party must 'set forth specific facts showing that there is a genuine issue for trial.'" Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 224 (2d Cir. 2006) (quoting Fed.R.Civ.P. 56(e)). Id.
2.The breach of contract and the implied covenant of good faith and fair dealing
Plaintiff's contract-related claims charge a failure on MSSM's part to abide by its own policies and procedures. In New York, "claims based upon the rights or procedures found in college manuals, bylaws and handbooks may only be reviewed by way of an Article 78 proceeding. Bickerstaff v. Vassar Coll., 354 F. Supp. 2d 276, 283 (S.D.N.Y. 2004), aff'd, 160 F. App'x 61 (2d Cir. 2005) (citing Maas v. Cornell Univ., 94 N.Y.2d 87, 92, 699 N.Y.S.2d 716 (1999)). Defendants point out that the four-month statute of limitations applicable to Article 78 proceedings -- which began to run with Chao's termination on May 7, 2009 -- expired even before commencement of this action on April 2, 2010, so both the contract claim and the good faith claim are time barred. Id. (dismissing state-law claim based on failure of a college to comply with its own procedures on the ground that the time to bring an Article 78 proceeding had expired); C.P.L.R. 217.
Although styled a breach of contract claim, Chao's claim turns on whether Defendants complied with their own disciplinary and termination procedures. While Chao does not clearly identify what agreement was allegedly breached, at oral argument he relied on a one page letter, dated June 22, 2007, which reappointed him as an Assistant Professor of Medicine through June 30, 2011. His theory appears to be that this letter amounts to a contract, and Defendants breached it by terminating him prior to June 30, 2011. However, the letter, while not a contract to begin with, never mentions termination. Strauss Decl. Ex. 10.
The MSSM Faculty Handbook (the "Handbook"), on the other hand, does outline the procedures for discipline and termination and Chao was made aware of its terms. See Essig Aff. Ex. C; see also Def.'s 56.1 ¶ 12; Pl.'s. 56.1 Resp. ¶ 12; Strauss Decl. Ex 6. His breach of contract claim is necessarily "based upon the rights or procedures found in" the Handbook, Bickerstaff, 354 F. Supp. 2d at 283, because any inquiry into whether his termination was proper vis-a-vis his employment agreement would turn on whether the termination proceedings were consistent with the Handbook. As such, the contract claim in this action is unsustainable. Id.; see also Byerly v. Ithaca Coll., 290 F. Supp. 2d 301, 305 (N.D.N.Y. 2003), aff'd, 113 F. App'x 418 (2d Cir. 2004).
Chao's claim for breach of the implied covenant of good faith and fair dealing must be dismissed for the same reason. It too is premised on allegations of improper disciplinary proceedings and termination. Compare Am. Compl. ¶ 126 with Am. Compl. ¶ 130. It too relies on alleged violations of the rights and procedures established in the Handbook. Chao himself refers to the Handbook to show, for example, the presence of alleged bad faith and the unjustified termination. See Pl.'s Mem. Opp. Mot. Summ. J. 4-18, 21-22. As a result, the implied covenant claim is only reviewable in an Article 78 proceeding. See Byerly, 290 F. Supp. 2d at 305. Moreover, it must be dismissed for the independent reason that, as stated by the court in Harris, "the conduct allegedly violating the implied covenant is also the predicate for breach of covenant of an express provision of the underlying contract." Harris v. Provident Life & Accident Ins. Co., 310 F.3d 73, 80 (2d Cir. 2003); OBEX Secs. LLC v. Healthzone Ltd., 10 Civ. 6876 (SAS) 2011 WL 710608 (S.D.N.Y. Feb. 28, 2011).
3.Discrimination based on race and national origin
Defendants move for summary judgment on all discrimination claims. Chao opposes the motion only with respect to his Title VII claim. While Chao's discrimination claims under New York City laws are subject to a lesser burden, Chao fails to argue that such claims survive Defendants' motion. Instead he devotes the bulk of his brief to mustering facts supporting an inference of discrimination. The lion's share of these facts focus on alleged differences between the Chao investigation and the Cohn ...