United States District Court, E.D. New York
OPINION AND ORDER
GERSHON, United States District Judge
Resat Keles brings this action, asserting federal question
and supplemental jurisdiction, pursuant to the Age
Discrimination in Employment Act of 1967 ("ADEA"),
29 U.S.C. §§621 et seq., the New
York State Human Rights Law ("NYSHRL"), New York
Executive Law §§ 290 et seq., the New York
City Human Rights Law ("NYCHRL"), New York City
Administrative Code §§ 8-101 et seq., and
state contract law. He asserts a number of parallel claims
under each of the three anti-discrimination statutes, while
other of his claims he brings under only certain of the
statutes. Under the ADEA, NYSHRL, and NYCHRL, plaintiff
claims that defendant LaGuardia Community College
("LCC" or "the College") unlawfully
discriminated against him based on his age in failing to hire
him for a full-time faculty position and, later, in failing
to assign him any courses as an adjunct professor at the
College. Under the ADEA and NYSHRL only, he further claims
that, by failing to assign him any courses to teach as an
adjunct professor, the College retaliated against him for
submitting a discrimination complaint to his union. Under the
NYCHRL only, he claims that defendants interfered with a
protected right he enjoys under the City Human Rights Law and
that defendant Yearwood aided and abetted the College's
discrimination against him in its hiring for the full-time
position. Plaintiff also claims that the College breached its
contract with him after appointing him as an adjunct
move to dismiss all of Mr. Keles's claims for failure to
state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6) except for his claim under the ADEA that the College
discriminated against him based on age by not hiring him for
a full-time faculty position. While they seek dismissal of
all state and local law claims for failure to comply with New
York Education Law § 6224, they do not seek dismissal on
the merits of Mr. Keles's claims under the NYSHRL and
NYCHRL that the College discriminated against him based on
age by not hiring him for a full-time faculty position, nor
of his claim under the NYCHRL that Yearwood aided and abetted
LCC's age discrimination in hiring for the full-time
position. For the reasons set forth below,
defendants' motion is granted in part and denied in part.
following facts alleged in the Amended Complaint and
documents incorporated by reference are taken as true for
purposes of this motion.
April 2009 and September 2012, plaintiff was employed as an
adjunct professor in the Natural Sciences Department at LCC,
a two-year public college that is part of the City University
of New York system. Am. Compl. ¶ 7, 9, 14, 22.
Plaintiff, who was sixty-six years old at the start of this
lawsuit, has a PhD and multiple other graduate and
undergraduate degrees in engineering, science, mathematics,
and business administration. Id. ¶ 13.
Defendant Yearwood was and still is the Chairman of the
Natural Sciences Department at LCC. Id. ¶ 8.
Plaintiff taught courses at LCC from the time when he was
first hired until the Spring 2012 semester. Id.
¶ 16, 22. Each semester, plaintiffs supervisor at LCC
would provide plaintiff with a letter that offered to
reappoint him to teach courses as an adjunct professor the
following semester. Id. ¶ 16. In the Spring
2012 semester, Peter Katopes, the Vice President of Academic
Affairs, again provided plaintiff with a reappointment letter
for the following, Fall 2012 semester. Id. ¶
14. The letter, addressed to plaintiff, read, in relevant
LaGuardia Community College intends to reappoint you as an
Adjunct Professor in the Natural Sciences Department for the
Fall 2012 semester. You will be paid based on an hourly rate
of $107.04.... Appointments will be offered subject to
sufficiency of registration, financial ability, curriculum
needs and scheduling. Department chairpersons will confirm
appointments upon completion of registration.... Please
indicate your acceptance by signing and returning this copy
of the appointment letter to Human Resources in Room E-408.
Pl's Decl. in Opp'n to Mot. to Dismiss, Ex. F. At the
bottom, the letter called for plaintiff to sign and date the
letter underneath a sentence that read: "ACCEPTANCE: I
hereby accept the terms of appointment as stated above."
Id. The letter was signed by Mr. Katopes. Plaintiff
signed and dated the letter and returned it to the human
resources department as called for in the letter. Am. Compl.
same semester, plaintiff applied for a full-time associate
professor position at LCC that had become available.
Id. ¶ 26. Despite his qualification for the
position, plaintiff alleges, LCC hired a less qualified
person who was under the age of forty at the time.
Id. ¶ 28-29. Plaintiff points to a number of
indicators that suggest that he was not hired because of his
age. For example, during his interview for the position, one
of the interviewers asked plaintiff "How do you write
grants at this age?" and told him that "Your old
methods don't work." Id. ¶ 35-36.
There were also a number of apparent irregularities in the
interview process for the position. Candidates for the
position were interviewed by several interviewers, each of
whom wrote an evaluation of the candidate's presentation
and gave a recommendation. Id. ¶ 35-40. One
interviewer's written recommendation with respect to
plaintiff was whited out; over it was written "Do Not
Recommend" in defendant Yearwood's handwriting.
Id. ¶ 40. Then, in the same interviewer's
evaluation of another candidate, the original recommendation
was also whited out; over that recommendation was written
"Recommend, " also in Mr. Yearwood's
handwriting. Id. ¶ 41. Moreover, outside the
interview context, plaintiff alleges that he would often
overhear conversations around the Natural Sciences Department
office disparaging older adjunct professors. Id.
¶ 44. For example, he overheard one administrator in the
department, who was also one of plaintiffs interviewers for
the associate professor position, disapprovingly talking
about "these old adjuncts." Id.
months after being denied the full-time faculty position,
plaintiff was also informed that he would not be assigned any
courses to teach as an adjunct professor the following
semester, even though there were a number of courses offered
by the College that he could have taught. Id. ¶
52. These courses were instead assigned to four other,
younger professors, all under the age of 40. Id.
¶ 53. On August 10, 2012, plaintiff complained to his
union representative regarding age discrimination.
Id. ¶ 46. On September 6, 2012, plaintiffs
union filed a formal complaint with the College for improper
rescission of plaintiffs Fall 2012 appointment as an adjunct
professor without just cause and age discrimination based on
plaintiffs August 10 complaint. Id. ¶ 47. There
are no allegations that plaintiff or his union took any
action to alert anyone at LCC of plaintiff s complaints until
that formal complaint was lodged on September 6. Plaintiff
was never again assigned any courses at LCC to teach as an
adjunct professor. Id. ¶ 51.
September 21, 2012, plaintiff completed an intake
questionnaire with the Equal Employment Opportunity
Commission ("EEOC") in which he complained of age
discrimination because he was not hired for the associate
professor position and not assigned courses to teach as an
adjunct professor Id. ¶ 49. On October 19,
plaintiff filed a Charge of Discrimination with the EEOC,
where he supplemented his original allegations with an
allegation of retaliation against him. Id. ¶
50. Plaintiffs EEOC complaint was served on LCC on December
5, 2012. Id. ¶ 5. His notice of claim was
served on LCC on July 18, 2013. Pl's Decl. in Opp'n
to Mot. to Dismiss, Ex. C. Plaintiff brought this lawsuit no
more than ninety days after receiving his notice of
right-to-sue from the EEOC. Am. Compl. ¶ 6.
Standard of Review
survive a Rule 12(b)(6) motion, a complaint must contain
sufficient factual allegations to "state a claim to
relief that is plausible on its face." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible when a plaintiff "pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. The court must accept as true all
well-pleaded factual allegations and draw all reasonable
inferences in the plaintiffs favor. Swiatkowski v.
Citibank, 446 Fed.Appx. 360, 360-61 (2d Cir. 2011). The
court's function is "not to weigh the evidence that
might be presented at trial but merely to determine whether
the complaint is legally sufficient." Goldman v.
Belden, 754 F.2d 1059, 1067 (2d Cir. 1985).
court may consider the pleading itself, as well as "any
documents which are incorporated into the complaint by
reference, or upon which the complaint relies so heavily that
it is rendered integral to the pleading." Alexander
v. City of New York, 957 F.Supp.2d 239, 245 (E.D.N.Y.
2013) (citing Chambers v. Time Warner, Inc., 282
F.3d 147, 152-53 (2d Cir.2002)). Both plaintiff and
defendants have submitted the Reappointment Letter which
plaintiff alleges forms the basis for his contract with
LaGuardia Community College. Defendants have also submitted
the September 6 union complaint, which the complaint
references. As documents referenced in the complaint and
integral to the pleading, I will consider these documents in
deciding this motion to dismiss.
Compliance with New York ...