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Keles v. Yearwood

United States District Court, E.D. New York

May 25, 2017

RESAT KELES, Plaintiff,


          NINA GERSHON, United States District Judge

         Plaintiff 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 professor.

         Defendants 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.[1] For the reasons set forth below, defendants' motion is granted in part and denied in part.


         The following facts alleged in the Amended Complaint and documents incorporated by reference are taken as true for purposes of this motion.

         Between 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 part:

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. ¶I5.

         That 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.

         A few 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.

         On 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.


         I. Standard of Review

         To 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).

         The 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.

         II. Compliance with New York ...

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