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Kao v. Erie Community College

United States District Court, W.D. New York

June 19, 2015

LI-WEI KAO, Plaintiff,


WILLIAM M. SKRETNY, District Judge.


Plaintiff Li-Wei Kao brings this employment discrimination action against Erie Community College ("ECC"), Erie County, and Buffalo and Erie County Workforce Development Consortium, Inc. ("WDC") pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), Civil Rights Act of 1870, as amended, 42 U.S.C. § 1981 ("Section 1981"), and § 290 et seq. of the New York Human Rights Law ("NY HRL"). Plaintiff alleges that he was discriminated against on the basis of his race and national origin and that he was retaliated against for engaging in protected activities.

This Court has federal question jurisdiction over Plaintiff's federal claims pursuant to 28 U.S.C. § 1331. As discussed below, pursuant to New York Exec. Law § 297(9), this Court has no jurisdiction over Plaintiff's NY HRL claims. All defendants moved for Summary Judgment on all relevant claims. For the reasons stated below, ECC's Motion is GRANTED, Erie County's Motion is GRANTED, and WDC's Motion is GRANTED.


Plaintiff is a person of Taiwanese national origin and is employed by Defendant ECC as a part-time instructor of non-credit remedial computer classes. (Complaint, ¶1; ECC Stmt., ¶¶2, 6). As discussed in more detail below, Plaintiff's retaliation and discrimination claims relate to events that occurred during two separate time periods. First, he alleges certain acts of discrimination and retaliation during approximately May to November of 2008, beginning during the time he taught at the Buffalo and Erie County Training Center ("BETC") (ECC Stmt., ¶ 4), and until he was reassigned to teach similar classes at another location in Buffalo ("45 Oak Street"). (ECC Stmt., ¶¶6, 13, 15; Plaintiff ECC Stmt., ¶¶6, 15). Second, he alleges retaliatory actions taken against him during late 2009 and 2010, which had a negative impact on his ability to continue to teach regularly at 45 Oak Street. (ECC Stmt., ¶23; Plaintiff ECC Stmt., ¶23). His 2010 New York State Division of Human Rights ("NYSDHR") complaint and this law suit followed.

A. Procedural History

On July 19, 2010, Plaintiff filed a Verified Complaint with the NYSDHR, charging defendants Erie County and ECC with employment discrimination based on "race/color, national origin, opposed discrimination/retaliation, " in violation of NY HRL and Title VII. (Complaint, Exh. A). In it, he authorized the NYSDHR to accept the complaint on behalf of the U.S. Equal Opportunity Employment Commission ("EEOC"). On April 14, 2011, the NYSDHR issued a "Determination and Order after Investigation" dismissing his complaint, finding NO PROBABLE CAUSE to believe ECC or Erie County engaged in the unlawful discriminatory practice described. (NYSDHR Order, Docket No. 65-3). Plaintiff did not appeal this decision, nor did he request a review by the EEOC. Subsequently, on May 10, 2011, the EEOC issued a "Dismissal and Notice of Rights" adopting the findings of the NYSDHR, and advising plaintiff of his right to file a lawsuit under federal law within 90 days of his receipt of the notice. (Complaint, Exh. B). Plaintiff commenced this action on May 13, 2011 (within the 90-day period), by filing a Complaint in the United States District Court for the Western District of New York (Docket No. 1), seeking injunctive relief and monetary relief for lost wages, lost benefits, and other damages, as well as punitive damages for the Title VII claim, based on the following five causes of action:

1. Discrimination on the basis of national origin in violation of Title VII, including disparate treatment, discriminatory termination, discriminatory terms and conditions of employment, and hostile work environment, by Erie County and ECC.
2. Retaliation in violation of Title VII, including disparate treatment, discriminatory terms and conditions of employment, and hostile work environment, by Erie County and ECC.
3. Discrimination and harassment in violation of Section 1981 by all defendants, including hostile work environment and discriminating termination.
4. National origin and race discrimination in violation of the New York Human Rights Law by all defendants.
5. Retaliation discrimination in violation of the New York Human Rights Law by all defendants.

On July 29, 2013, all Defendants moved for summary judgment on all claims, based on untimeliness, undisputed material facts, and legally insufficient claims. (Docket Nos. 40-66; 67; 68). Plaintiff filed submissions in opposition on September 30, 2013 (Docket Nos. 74-78), and Defendants filed reply memoranda on October 11, 2013 (Docket Nos. 79; 80; 81-83). This Court took the motions under advisement without oral argument.

B. The Parties[2]

ECC is a community college organized and existing pursuant to the laws of the State of New York (ECC Stmt., ¶1) and is part of the State University of New York. (Erie County Stmt., ¶3). Defendant Erie County is the "sponsor" for ECC as required by statute and provides approximately 17% of ECC's budget. (Erie County Stmt., ¶¶3, 4).

Defendant WDC is a not-for-profit with two members, the Mayor of Buffalo and the County Executive. (WDC Stmt., ¶9). WDC's primary objective is to administer Federal and State Workforce Investment Act funds, and other funds and grants, for employment and training program purposes. (WDC Stmt., ¶8). WDC receives its funding from the New York State Department of Labor, from which it pays approximately thirty employees at the Buffalo and Erie County Training Center ("BETC"). (WDC Stmt., ¶10). The BETC has no employees of its own, rather it is a location where a variety of services are made available to displaced workers and others seeking employment, and is funded and primarily staffed by WDC. (WDC Stmt., ¶¶3, 4). At all relevant times, Colleen Cummings, a City of Buffalo employee, was the Director of the BETC and the supervisor of the WDC staff at the BETC. (WDC Stmt., ¶7; ECC Stmt., ¶5).

Plaintiff began teaching basic computer classes at the BETC as a WDC employee in approximately June of 2003. (WDC Stmt., ¶¶1, 2). During 2006, WDC and ECC entered into a contract for ECC to provide basic computer courses at the BETC and the instructors for those courses. (WDC Stmt., ¶11). In conjunction, ECC hired Plaintiff on or about June 1, 2006 as a part-time instructor for ECC's Workforce Development office (ECC Stmt., ¶2), which offers remedial non-credit computer courses at several locations, including ECC North Campus, ECC South Campus, 45 Oak Street, (near ECC City Campus), and at the BETC. (ECC Stmt., ¶4). At all relevant times, Carrie Kahn was ECC's Executive Dean of Workforce Development and managed the relationship between ECC and WDC. (ECC Stmt., ¶8). Plaintiff avers that while he taught at the WDC as an ECC employee, he was supervised by Cummings and Joseph Sullivan, WDC's manager of Placement and Retention and the Career Resources Center (WDC Stmt., ¶15), and that Jeanette Madoo, another WDC employee, created his schedules, ordered materials, and developed curriculum. (Plaintiff Erie County Stmt., ¶9).

While assigned to the BETC, Plaintiff was paid by ECC for the hours he taught, but for a period of time, he also earned wages from WDC for his preparation time, in accordance with WDC paying other instructors for the same. (Plaintiff Dep., pp.22-23, Docket No. 45). Plaintiff also worked part-time for a different employer teaching computer classes at another downtown location in the afternoons (ECC Stmt., ¶7) and occasionally at the BETC (See Plaintiff Decl., ¶56). Plaintiff continued to teach computer classes on a part-time basis at the BETC until October 2, 2008. (WDC Stmt., ¶12; ECC Stmt., ¶¶2, 4). In November 2008, Plaintiff was assigned to teach non-credit remedial classes at ECC Workforce Development's 45 Oak Street location, where Plaintiff remained an instructor as an ECC employee until at least the date of the parties briefings. (ECC Stmt., ¶6). As discussed herein, Plaintiff concedes he is technically an ECC employee, but he disputes that he, in fact, remained employed throughout the relevant time period; first, because he claims he was told he was "terminated" in October of 2008, and second, because his hours have substantially decreased over time. (Plaintiff ECC Stmt., ¶6).

C. Events Leading to Plaintiff's Removal from BETC

Plaintiff alleges that in 2008, Sullivan began treating him poorly. (Plaintiff Decl., ¶28). Sometime before May 16, Sullivan and Plaintiff had a dispute about Plaintiff's treatment of a student who was tardy for his class. (WDC Stmt., ¶15; Plaintiff WDC Stmt., ¶15). Plaintiff claims that Sullivan became hostile with him, and stated: "you all of a sudden Mr. By the Rule, " and then threatened that "I can be on your back too. If you come in two minutes late or leave two minutes early, I can be Mr. By the Rule too." (Plaintiff Dep., p.37).[3] Sometime after that, on or about May 16, 2008, Plaintiff discovered a student cheating on an exam, and had another disagreement with Sullivan about whether the student should be allowed to retake it. (WDC Stmt., ¶16). Plaintiff claims that Sullivan "escalated the situation" (Kao Decl., ¶37); according to Plaintiff,

"He say you're nothing like me. You have no compassion. You have no understanding about this country. He say this country is very dark. This place is very dark. He say a lot of people don't have a job like you. He say if you want your perfect dream class and perfect student, go to work for UB, or go back to China, or go where - somewhere else. He say this place is too dark for you."
(WDC Stmt., ¶17).

Plaintiff asserts that he found this comment to be racist and demeaning. (WDC Stmt., ¶18; Plaintiff WDC Stmt., ¶18). Plaintiff states that he complained the following week to his colleague Madoo and BETC Director Cummings about the remark (Plaintiff Decl., ¶¶40-42), but that he did not know of a formal complaint procedure at BETC. (WDC Stmt., ¶18). According to Plaintiff, Sullivan "was never friendly" to him and was on occasion "mean and nasty" (Plaintiff Dep., pp. 49-50). After this incident and Plaintiff's alleged complaints, Plaintiff claims Sullivan began disrespecting him publicly (WDC Stmt., ¶19), including during the following incidents:

• "There was an instant that I was introducing Joe to my students cause we were having graduation celebration. And I say hello, everyone. This is Joe Sullivan, my supervisor. He just kind of gave us - gave me a dirty look and left the room. And my student was asking, what was that about." (Kao Dep., p.48).
• "During the meetings I had with WDC staff who made my schedule and set up my classes at the BETC location, Mr. Sullivan would put me down no matter what I said or what idea I offered." (Plaintiff Decl., ¶48).
• Sometime between May and October, Sullivan told students not to sign up for Plaintiff's classes. (WDC Stmt., ¶19).

Finally, on October 2, 2008, a BETC student complained to Sullivan that Plaintiff told offensive jokes, sexual in nature, to the class during her four-day course. (WDC Stmt., ¶¶21-22). The student reported that one of the jokes mentioned the word "pussy" and another was about a man with two assholes.[4] (WDC Stmt., ¶22). The student found the jokes "unacceptable" and felt that they were "sexually motivated and should not be in the class rooms." (Van Vessem Decl., Exh. H, Docket No. 63). Sullivan relayed the student complaint to Cummings. (WDC Stmt., ¶23). Sullivan spoke with several other students in the class, and although they were not personally offended by the language, they confirmed that Plaintiff told the jokes. (WDC Stmt., ¶24). Sullivan discussed his findings with Cummings, and they decided that Plaintiff should no longer teach at the BETC. (WDC Stmt. ¶25). Cummings notified ECC of the student complaint and requested that ECC provide a replacement instructor. (Erie County Stmt., ¶10).

In his deposition, Plaintiff states his recollection of the incident that led to his removal from the BETC:

"As an icebreaker that morning, we were kind of joking around. My student ask a question, say Mr. Li, is it true? They say Chinese people eat cats and dogs.' And I just kind of out of the blue, I say, to answer your question, you know, I have a joke for you.' So I say, little Johnny went to school, and the teacher was asking little Johnny, why do you bring your cats to school? Little Johnny say, because I overheard my parents say they were going to eat the pussycat.' That was the joke."
(Plaintiff Dep., pp.55-56).

Plaintiff adamantly asserts that he did not understand the joke to be sexual in nature, and that he did not know of the double meaning of the word because of his "limited background with the English language." (Plaintiff Decl. ¶73). Rather, he proclaims the joke had to do with "Chinese people' eating cats." (See, e.g., Plaintiff WDC Stmt., ¶21; Plaintiff Decl., ¶¶59-61). Plaintiff does not recall, nor does he deny making the other jokes mentioned in the student note. (Plaintiff Dep., p.67). Nobody at WDC or ECC asked Plaintiff about the incident at that time. (Plaintiff Decl., ¶64). Plaintiff contends that he was removed from the BETC, not because of the jokes, but because of Sullivan's actions and because of retaliation by Sullivan and Cummings for his earlier complaints about Sullivan's racially motivated comments. (Plaintiff Decl., ¶54). Plaintiff did not file a complaint against WDC with either the EEOC or the NY DHR. (WDC Stmt., ¶26).

D. Plaintiff's Reassignment to 45 Oak Street

On October 2, 2008, Eileen Flaherty, ECC's Director of Human Resources, contacted Plaintiff to inform him that he would no longer be teaching at the BETC. (Erie County Stmt., ¶11). Plaintiff asserts that Flaherty told him: "your position with ECC has been terminated based on the recommendation of Buffalo Employment Training Center", and "do not report to work on Monday. We have already found a replacement for you." (Plaintiff Dep., p.29). Plaintiff also alleges that Flaherty told him "we know you are a good instructor, but what you say in class was unacceptable" and also "you have the right to obtain union rep[resentation], " and then gave him the phone number of a representative for the Faculty Federation of Erie Community College (FFECC). (Plaintiff Dep., p.30). Plaintiff understood the conversation with Flaherty to mean ECC terminated his employment. (Plaintiff Erie County Stmt., ¶11). Flaherty denies using the word "terminated" in the conversation, and ECC maintains that Kao was never terminated. (Flaherty Dep., p. 22-23; Willis Decl., ¶¶8-9; see Kahn Decl., ¶¶16-17).

Following the phone call with Flaherty, Plaintiff attempted to contact Cummings who did not respond. (Plaintiff Decl., ¶21). Plaintiff also spoke with a member of the FFECC, but because he was not a member, he retained his own attorney. (Plaintiff Dep., p.71). On October 15, 2008, Plaintiff filed an electronic complaint with the Erie County Equal Employment Opportunity Office, regarding the incidents at the BETC. (Erie County Stmt., ¶12). The Erie County EEO contacted Darley Willis, ECC's Director of Equity and Diversity, to investigate the complaint. (Erie County Stmt., ¶13). Concurrently, Plaintiff contacted the NYSDHR about the WDC events, and a representative drafted a complaint for him, which he never filed. (Plaintiff Decl., ¶97).

In a letter from Flaherty dated November 6, 2008, Plaintiff was requested to meet with ECC representatives, including Carrie Kahn, The Executive Dean of Workforce Development, and Flaherty, regarding the "reassignment of [his] classes through Workforce Development." (Van Vessem Decl., Exh. J, Docket No. 64). Plaintiff and ECC representatives met on November 12, 2008. (ECC Stmt., ¶13). Although Plaintiff requested that his attorney attend the meeting, ECC declined to allow it. (Complaint, ¶13). Plaintiff accepted an offer to work at the ECC Workforce Development office's 45 Oak Street location, where he would teach non-credit remedial computer classes. (ECC Stmt., ¶15; Plaintiff Decl., ¶107). Plaintiff disputes that ECC offered him any other locations (Plaintiff Decl., ¶108), but the 45 Oak Street location and certain schedule changes accommodated Plaintiff's need to travel to another job in the afternoons and his desired number of potential work hours. (ECC Stmt., ¶¶13-20). At that meeting, Plaintiff also agreed to attend Employee Assistance Program counseling because of the incident with the jokes; however, he never attended. (ECC Stmt., ¶¶21, 22). Plaintiff began teaching classes at 45 Oak Street shortly thereafter, and did not pursue any legal action at that time.

E. ECC Workforce Development Policies and 45 Oak Street Location

Approximately one year later, in October 2009, Plaintiff alleges that he "began complaining" to Kahn about his classes at 45 Oak Street being cancelled due to low enrollment. (Plaintiff Decl., ¶147). After discovering an ECC faculty member was enrolled in Plaintiff's class, Kahn informed Plaintiff that ECC students and faculty were not permitted to take non-credit remedial computer classes. (Plaintiff Decl., ¶¶132, 142). Then, in 2010, certain ECC Workforce Development policy changes related to student enrollment took effect. On December 30, 2009, Maureen Passmore, Kahn's assistant, sent an email to ECC Workforce Development instructors, informing them that because of state budget changes, ECC increased the minimum number of students for a course to run from eight to ten, effective in January 2010. (Erie County Stmt., ¶18). It is undisputed that classes at the BETC would be unaffected by this change because the BETC receives separate, additional funding to reimburse ECC if the "break even" enrollment point was not met. (Kahn Decl., ¶¶38-40) On May 25, 2010, Passmore informed ECC Workforce Development instructors that students would be limited to enrolling in the non-credit remedial computer courses a maximum of two times per topic, effective on June 1, 2010. (Van Vessem Decl., Exh. W, Docket No. 65-8). At approximately this time, Plaintiff claims he complained about certain circumstances specific to the 45 Oak Street location, including lack of free parking, minimal foot traffic for potential students, and being required to ask an 82-year-old student to stop attending his classes. (Plaintiff Decl., ¶151). He met with Kahn and Passmore on June 1, 2010 to discuss the policies, as well as potential marketing and recruiting ...

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