Opinion
00-19762.
Decided July 5, 2005.
GABOR GABOR, CHRISTINE MALAFI, ESQ., Garden City, NY, Suffolk County Attorney Attorneys for Plaintiff.
H. LEE DENNISON BUILDING, Hauppauge, NY, Attorney for Defendants.
ORDERED that this motion by the County defendants for summary judtment dismissing the second amended complaint is granted as to plaintiff's second, third, fourth, fifth and sixth causes of action and denied as to plaintiff's first and seventh causes of action; and it is further
ORDERED that the branch of this cross motion by plaintiff for summary judgment in his favor on the second amended complaint is denied; and it is further
ORDERED that the branch of this cross motion by plaintiff for a trial preference pursuant to CPLR 3403[a][3] in the "interests of justice" is denied.
In this action plaintiff seeks damages alleging unlawful discriminatory employment practices and retaliation under the Human Rights Law (Executive Law § 296), breach of contract and fraud. The action has its genesis in the sixty three year old plaintiff's unsuccessful quest to obtain a full-time professorial position with defendant Suffolk County Community College (College). The facts as alleged in the second amended complaint are as follows. Plaintiff has been hired almost continuously on an annual basis since 1988 as a part-time Adjunct Instructor/Adjunct Assistant Professor in the Theatre Department of Suffolk Community College. At the time he was initially hired in 1988 he desired a full time position but was advised by the then Chairman of the Theatre Department that if he worked as an adjunct instructor and gained seniority that he would be given preference when a full time become available in the future. Plaintiff accepted this advice and took the part time position. When a full time faculty position became available at the Ammerman campus of the college in the Spring of 1998, plaintiff who believed he had the necessary experience and qualifications, applied for the position. Plaintiff shortly thereafter received a letter from the college denying him an interview for the position which he later learned had been awarded to a candidate he knew to be twelve years younger and less qualified than himself. When he inquired of the Ammerman campus' Theatre Department Head, Robert Johnson, as to why the position had been awarded to the other candidate, Mr. Johnson allegedly told plaintiff, "that it was time for him to retire". Plaintiff claims that Mr. Johnson had previously denied plaintiff opportunities to teach at the Ammerman campus by assigning two less qualified and less senior adjuncts to positions desired by plaintiff. Plaintiff asserts that each of these candidates was more than twenty years his junior. As a result, in September, 1998, plaintiff filed a charge of discrimination with the New York State Division of Human Rights and the United States Equal Employment Opportunity Commission (EEOC) alleging violations of the Federal Age Discrimination in Employment Act (ADEA) and the State's Human Rights Law. Upon receiving a "Right to Sue" letter from the EEOC plaintiff commenced an action in the Federal Court which was subsequently dismissed without prejudice to the commencement of the action within this Court.
The second amended complaint continues as follows. In the Fall of 2002, defendant college advertised for a full-time professor to teach Theatre/Speech Communication or Theatre/English at the college's Western campus. When plaintiff inquired about the position he was advised by Jian Zhang, Director of the Communications and Fine Arts Department for the Western campus, that the college was not hiring at that time but that Mr. Zhang would notify plaintiff when the position was going to be filled. Although the position did become available and plaintiff did apply for it, Mr. Zhang never notified plaintiff that the position had been approved. Ultimately, the position was not filled as advertised, rather, defendants hired two professors who split five theater courses with their remaining required courses being taught in other areas.
In the Fall of 2002, the college also advertised for a full-time professor to teach Theatre: Acting/Directing at the Ammerman campus and plaintiff was an unsuccessful candidate for that position. Plaintiff claims that the college did not comply with Civil Service Law § 35 which governs the process used for establishing qualifications for full-time faculty positions. Plaintiff contends that the college did not follow the criteria set forth in the statute for establishing the qualifications for a position, and further, failed to properly file the qualifications with the Civil Service Commission and with the commission or officer to which the certification is made. Plaintiff further alleges that the college denies interviews to approximately 47.1% of adjunct teachers who apply for full time positions. Plaintiff contends that although he continues to work as an adjunct professor at the college, defendants' failure to award him this job due to his age has damaged him in that he is receiving less salary and fewer benefits than he would have as a full time professor.
Defendants now move for summary judgment dismissing plaintiff's claims and plaintiff cross moves for summary judgment in his favor and for a trial preference in the interests of justice.
Plaintiff's first cause of action alleges that defendant college discriminated against him in failing to promote him to any of the four full-time professor positions that he applied for and in failing to hire him as a adjunct in fall of 2003, that the college's sole motivation in not hiring him was his age and in doing so violated Section 296 of the Executive Law (Human Rights Law).
The New York State Human Rights Law prohibits an employer from discriminating against an employee because of his or her age (Executive Law § 296). On a claim of discrimination, plaintiff has the initial burden to prove by a preponderance of the evidence a prima facie case of discrimination ( Ferrante v. American Lung Association, 90 NY2d 623, 665 NYS2d 25). To support a prima facie case of discriminatory failure to promote, a plaintiff must demonstrate (1) that he is a member of the protected class; (2) that he applied for a position for which he was qualified; (3) that he was denied the position; and (4) that the circumstances of the adverse employment decision give rise to an inference of discrimination ( Subramanian v. Prudential Securities, Inc., 2003 WL 23340865 (EDNY). If a prima facie case is established, the burden shifts to the defendant to put forth a legitimate, nondiscriminatory reason for the employer's challenged action.
To establish its entitlement to summary judgment in an age discrimination case, a defendant must demonstrate either the plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for its challenged actions, the absence of a material issue of fact as to whether the explanations proffered by the defendant were pretextual ( Hemingway v. Pelham Country Club, 14 AD3d 536, 789 NYS2d 178). Thus, a plaintiff may defeat a properly supported motion for summary judgment in a discrimination case under Executive Law § 296 by raising a triable issue of fact concerning either the falsity of the employer's explanation for the challenged action or the employer's discriminatory motive ( Morse v. Wyoming County Community Hospital Nursing Facility, 305 AD2d 1028, 758 NYS2d 749).
By his personal affidavit, plaintiff avers that in the mid-1990's while teaching adjunct courses at the college's Grant college and applying for positions as they came available at the Ammerman campus, he was asked by Wayne Peavy, Department Head of Theatre for the college, "when are you going to retire?" Plaintiff states that in 1997, he telephoned Richard Johnson, then the department head of theatre at the Ammerman campus, asked if there were any positions available and was told that there were none. Plaintiff later learned that there had been an adjunct position available which was awarded to a person 16 years his junior. In 1998, he applied unsuccessfully for both a full-time position and an adjunct position at the Ammerman campus, and later learned that the part-time position went to a candidate 32 years his junior and the full-time position went to a candidate 12 years his junior. Although he had been an adjunct at the college for ten years and possessed the qualifications for the positions he was not given an opportunity to interview for the positions. Plaintiff contends that when he asked Mr. Johnson for an explanation as to why he had not been interviewed for the positions, Mr. Johnson told plaintiff it time for him to retire.
This Court finds that the plaintiff has established a prima facie case of age discrimination. By virtue of his age plaintiff is a member of a protected class and it appears that overall he was qualified for the positions he sought and had performed satisfactorily in the adjunct positions he held over a sixteen year period. That he was subject to adverse employment actions is evident in his failure to obtain any of the full-time professorial positions he sought and ultimately in his failure to obtain any one of the three adjunct positions he sought in 2003. Lastly, the fact that the successful candidates for these positions were predominately of an age significantly younger than plaintiff gives rise to an inference of age discrimination. As plaintiff has established a prima facie case, the burden of proof now shifts to defendants to put forth a legitimate nondiscriminatory reason for the challenged action.
Defendants do not argue that plaintiff was not qualified for the positions for which he unsuccessfully competed, rather they contend that he was not the "most qualified" candidate for each of these positions. By their submissions, defendants established a legitimate nondiscriminatory reason for the selection of each of the successful candidates for the positions in question by demonstrating that each of the candidates, as compared to the plaintiff, had academic qualifications or real life theatre experience more particularly suited to the individual subjects they were being hired to teach.
Defendants having met their burden of setting forth a valid reason for not hiring him, plaintiff must show that there is a material issue of fact as to whether (1) the employer's asserted reason for the challenged action is false or unworthy of belief and (2) more likely than not the employee's age was the real reason ( Ferrante v. American Lung Association, supra). Where an employer's explanation for a hiring decision offered in clear and specific terms is reasonably attributable to an honest even though partially subjective evaluation of qualifications, no inference of age discrimination can be drawn. That being said, the courts have also cautioned that an employer may not use wholly subjective and unarticulated standards to judge employee performance for purposes of promotion. This is because any defendant can respond to a discrimination charge with a claim of some subjective preference or prerogative and, if such assertions are accepted, they prevail in virtually every case ( Byrnie v. Town of Cromwell Board of Education, 243 F3d 93). The evidence submitted on plaintiff's prima facie case remains relevant to a consideration of whether the plaintiff has adequately demonstrated that the reason advanced by defendant is a pretext and it is not the court's function on a motion for summary judgment to assess credibility. In order for defendants to prevail in this case, defendants must demonstrate that the non hiring of plaintiff was based upon nondiscriminatory reasons. Discrimination is rarely so obvious or its practices so overt that recognition of it is instant and conclusive, it being accomplished usually by devious and subtle means ( Ferrante v. American Lung Association, supra).
Here, plaintiff has made the necessary showing to avoid summary judgment by adducing proof indicating that defendants made statements referring to plaintiff's age on more than one occasion ( see, Strassberg v. Long, 300 AD2d 141, 752 NYS2d 625). The Court thus concludes that there remain triable issues of fact as to whether defendants' claims that plaintiff was not the most qualified person for these vacancies constitutes merely a pretext for age discrimination. These issues of fact also preclude the granting of plaintiff's request for summary judgment on this cause of action.
With respect to plaintiff's second cause of action for breach of contract, plaintiff alleges (1) that he had an opportunity for a teaching career at a public school system when he first interviewed for a part-time position at defendant college in 1988; (2) that he made the defendants aware of this opportunity and initially rejected the defendants' offer of a part-time adjunct position because the full-time public school position was more lucrative; (3) that defendants' representative, Wayne Peavey, told plaintiff that he should forego the public school position and accept the adjunct position since adjunct professors are afforded preferential treatment when full time positions become available; (4) that defendants told him that they were actively involved in the professional career development and that the Administration practice was to conduct classroom teaching observations and hold individual conference evaluations for adjuncts several times each year; (5) that defendants represented that it was the existing practice to always grant an interview to an adjunct applying for a full-time position and to give the adjunct with the most seniority preference in hiring for the position; (6) that plaintiff relied upon these representations, declined the public school position and accepted the adjunct position with defendants; (7) that these representations and inducements formed a contract which defendants breached by denying plaintiff interviews for a full-time position, by not offering plaintiff a full-time position despite his seniority and superior qualifications, and by discrimination against the plaintiff in the selection process. It is further alleged that the defendants breached the contract by not conducting the appropriate number of classroom observation/evaluations of his work. Plaintiff alleges that defendants could not have fairly considered plaintiff's qualifications because they failed to monitor the plaintiff's classroom performance as defendants had contracted to do.
Before the power of law can be invoked to enforce a promise, it must be sufficiently certain and specific so that what was promised can be ascertained. If an agreement is not reasonably certain in its material terms, there can be no legally enforceable contract ( Rosenbaum v. Premier Sydell, Ltd., 240 AD2d 556, 659 NYS2d 52). "Impenetrable vagueness and uncertainty will not do [ citations omitted]" ( Joseph Martin, Jr., Delicatessen, Inc. v. Schumacher, 52 NY2d 105, 436 NYS2d 247). Here, plaintiff's claim of an oral agreement whereby he was to receive a future appointment as a full-time professor in exchange for working as an adjunct is too vague to ascertain the material terms of the contract and it is, therefore, not capable of being enforced ( see, Dillon v. Peretti, 176 AD2d 497, 574 NYS2d 564). Moreover, the purported contract to appoint plaintiff to a full-time professor position at some unspecified time in the future is unenforceable pursuant to the Statute of Frauds [General Obligations Law § 5-701, subd. a par 1] ( see, Bykofsky v. Hess, 107 AD2d 779, 484 NYS2d 839 aff'd 65 NY2d 730, 492 NYS2d 29 cert den 474 US 995, 106 SCt 408). Summary judgment on plaintiff's second cause of action is therefore granted to defendants.
Plaintiff's third cause of action sounds in quasi-contract and alleges that defendants requested that plaintiff be available whenever needed both day and evenings to teach theater courses and direct theater productions; that plaintiff acquiesced to these requests and made himself available to the exclusion of any opportunity to obtain full-time employment; that as a result defendants received a benefit which was conferred upon them by plaintiff and for which plaintiff was entitled to be compensated; that plaintiff's expectation of compensation was to be afforded a preference for a full-time faculty position; and that defendants breached the agreement by not offering the plaintiff the full-time professorship when such became available.
An "implied-in-law contract," or "quasi-contract," is an equitable cause of action premised upon unjust enrichment, which is founded not on a contract or agreement but, rather, on an obligation which the law creates in the absence of agreement when one party possesses money that in equity and good conscience the party ought not to retain and that belongs to another ( Hamlin Beach Camping, Catering Concessions Corp. v. State, 303 AD2d 849, 756 NYS2d 354 ). Recovery on a claim premised upon quasi-contract or unjust enrichment is limited to the reasonable value of the services rendered by the plaintiff ( Collins Tuttle Co., Inc. v. Leucadia, Inc., 153 AD2d 526, 544 NYS2d 604).
Here, plaintiff did not present sufficient evidence to raise a material question of fact concerning the reasonableness of his belief that he was entitled to a full-time professorial position in exchange for performing services as an adjunct. Plaintiff failed to prove that he performed any services in excess of those required of him as an adjunct, as opposed to merely standing ready to perform services as a full-time professor had been called upon to do so. Nor has plaintiff demonstrated the value of the services for which he seeks recovery ( see, Lazard Freres Co. v. First National Bank of Maryland, 268 AD2d 294, 702 NYS2d 19). Plaintiff was undeniably paid for the actual services he did perform as an adjunct professor, and under the theory of quasi-contract or unjust enrichment, that is the only compensation to which he is entitled (see, Collins Tuttle and Co., Inc., v. Leucadia, Inc., supra; see also, Geraldi v. Melamid, 212 AD2d 575, 622 NYS2d 742). Moreover, since the essence of plaintiff's claim that he was denied employment to which he was entitled under a theory of unjust enrichment depends on proof of the oral contract he is, therefore, also barred by the Statute of Frauds ( see, Tallini v. Business Air, Inc., 148 AD2d 828, 538 NYS2d 664). Plaintiff's cause of action sounding in quasi-contract therefore lacks merit and defendants are granted summary judgment dismissing this claim.
Defendants' request for summary judgment dismissing plaintiff's fourth, fifth and sixth causes of action sounding in fraud on the basis that plaintiff failed to file a notice of claim in accordance with GML § 50[h][i] (sic) and County Law § 52 is denied. By order, dated May 8, 2001 (Whelan, J.), the Court determined that plaintiff was not required to file a notice of claim with respect to these causes of action and in doing so cited, Brown v. North Country Community College, 63 Misc 2d 442, 311 NYS2d 517, wherein the Court held that a notice of claim is not a condition precedent to the institution of a civil action against a community college outside the City of New York. This Court notes the existence of a later case, Carren v. Westchester County Community College, 176 Misc 2d 490, 674 NYS2d 576, wherein the Court held that County Law § 52 does require the filing of a notice of claim in an action against a community college ( see also, Feingold v. Hankin, 269 FSupp2d 278 rev'd in part on other grounds 91 Fed Appx 176, 2004 WL 350157).
The Court also notes the Appellate Division, Second Judicial Department acknowledged the necessity of the filing of a notice of claim in tort actions against a county owned community college ( see, Belenky v. Nassau Community College, 4 AD3d 422, 771 NYSA2d 379 [2004] and Haynes v. Board of Trustees of Nassau Community College, 231 AD2d 675, 647 NYS2d 979 [1996]).
Nevertheless, the order dated May 8, 2001, established the "law of the case". The doctrine of 'law of the case' articulates the sound policy that once an issue is judicially determined, that should be the end of the matter as far as judges and court of coordinate jurisdiction are concerned ( see, Martin v. Cohoes, 37 NY2d 162, 371 NYS2d 687). The decided issue becomes binding not only on the parties, but on all other judges of coordinate jurisdiction ( see, Atlas Feather Corp. v. Pine Top Ins. Co., 122 AD2d 241, 505 NYS2d 436 [2nd Dept 1986]). The setting aside of the judicial act of one judge by another of coordinate jurisdiction is avoided, whenever possible, as not conducive to the orderly administration of justice. Courts of coordinate jurisdiction may not arrogate to themselves powers of appellate review ( Public Serv. Mut. Ins. Co. v. McGrath, 56 AD2d 812, 392 NYS2d 659 [2nd Dept 1977]; Dain Dill, Inc. v. Betterton, 39 AD2d 939, 333 NYS2d 237 [2nd Dept 1972]). Thus, this Court must abide by the earlier ruling that a notice of claim was not required to be filed with respect to plaintiff's fourth, fifth and sixth causes of action.
"Law of the case" also forms the basis of the Court's refusal to revisit defendants' argument that all of plaintiff's claims arising after 1998 must be dismissed as they do not "relate back" to the claims asserted in the original complaint. The Court previously considered and rejected this argument in granting plaintiff's prior motion for leave to amend the complaint by order, dated February 10, 2004 (Jones, J.).
In any event, defendants are entitled to summary judgment dismissing plaintiff's fraud claims as these causes of action are without legal merit. Causes of action to recover damages for fraud do not lie where the only fraud claimed relates to an alleged breach of contract ( Sokol v. Addison, 293 AD2d 600, 742 NYS2d 311; Shah v. Micro Connections, Inc., 286 AD2d 433, 729 NYS2d 497; Sisters of the Divine Compassion v. Pace University, 230 AD2d 904, 646 NYS2d 713). Where a party asserts a fraud cause of action based upon a claim that the party was fraudulently induced to enter into a contract, the misrepresentations alleged in the pleadings must be more than merely promissory statements about what is to be done in the future; they must be misstatements of material fact or promises made with a present, albeit undisclosed, intent not to perform them ( Moon v. Clear Channel Communications, Inc., 307 AD2d 628, 763 NYS2d 157). To maintain a claim of fraud in such a situation, claimant must (i) demonstrate a legal duty separate from the duty to perform under the contract, or (ii)) demonstrate a fraudulent misrepresentation collateral or extraneous to the contract, or (iii) seek special damages that are caused by the misrepresentation and unrecoverable as contract damages. It is well established that general allegations that the defendant entered into a contract with the intention not to perform it are insufficient to support a claim for fraud ( Kelley v. Vikse, 7 Misc 3d 1011[A], 2004 WL 3272107 (NY Sup). In the instant case, the only fraud alleged relates to the breach of the alleged oral agreement that forms the basis of the plaintiff's breach of contract causes of action. Plaintiff cannot recast his breach of contract cause of action as one for fraud, ( Weitz v. Smith, 231 AD2d 518, 647 NYS2d 236), since the facts underlying those claims are duplicative of the facts underlying the breach of contract claim. The purported promises by defendants to appoint plaintiff to a full-time professor position at best demonstrate a misrepresentation of an intention to perform under a contact which are insufficient to allege fraud. Here, there are no alleged misrepresentations of facts collateral to the purported contract of employment sufficient to sustain a claim of fraud ( Sforza v. Health Insurance Plan of Greater New York, 210 AD2d 214, 619 NYS2d 734). Defendants are therefore granted summary judgment dismissing the fourth, fifth and sixth causes of action in the complaint.
Plaintiff's seventh and final cause of action alleges that defendants retaliated against plaintiff upon learning that plaintiff in 1998 had filed a claim with the New York State Division of Human Rights alleging that he had been discriminated against by the college due to his age. The gravamen of plaintiff's claim of retaliation is that defendants thereafter engaged in conduct for the purpose of punishing plaintiff for filing the discrimination complaint by not appointing him to any of the subsequent full-time or adjunct teaching positions as they became available.
To establish a prima facie case of retaliation, a plaintiff must demonstrate that (1) he or she was engaged in a protected activity, (2) the employer was aware of the activity, (3) he or she suffered an adverse employment action, and (4) there was a causal connection between the protected activity and the adverse action ( Romney v. New York City Transit Authority, 8 AD3d 254, 777 NYS2d 324). Overall, plaintiff must demonstrate that defendant had a "subjective retaliatory motive," often inferred from the close proximity of adverse employment action to the conduct complained of ( e.g., Budzanoski v. Pfizer, Inc., 245 AD2d 72, 664 NYS2d 796). In evaluating whether discriminatory intent has been proven, it must be recalled that "one intent on discriminating cannot be expected to declare or announce his purpose. Far more likely is it that he will pursue his discriminatory practices in ways that are devious, by methods subtle and elusive" ( Imperial Diner, Inc. v. State Human Rights Appeal Bd., 52 NY2d 72, 77, 436 NYS2d 231, quoting Holland v. Edwards, 307 NY 38, 45).
The parties' submissions demonstrate the existence of triable issues of fact as to the existence of a subjective retaliatory motive on the defendants' part in not hiring plaintiff for the full-time and adjunct professor positions he unsuccessfully sought after 1998. Summary judgment with respect to plaintiff's seventh cause of action is therefore denied.
Finally, plaintiff's request for an order granting a trial preference to this action "in the interests of justice" pursuant to CPLR 3403(a)(3) upon the grounds of financial hardship is denied. Inasmuch as the Court by order, dated September 10, 2004 (Burke, J.), vacated the note of issue in this action, the request for a trial preference is premature (CPLR 3403[b]).
Moreover, to be entitled to a trial preference pursuant to CPLR 3403(a)(3), the movant must allege facts sufficient to establish that the anticipated lag in reaching the subject action for trial is likely to cause undue and unusual hardship ( Rago v. Nationwide Insurance Co., 120 AD2d 579, 502 NYS2d 66). Where the movant claims financial hardship, documentary proof establishing the movant's indigence or complete destitution is required as well as medical evidence that the movant's current physical condition renders it impossible to obtain gainful employment ( Cenname v. Lindholm, 69 AD2d 848, 415 NYS2d 631; Smith v. Horn Construction Co., 12 AD2d 739, 208 NYS2d 1003).
Here, the factual allegations contained in plaintiff's supporting papers do not adequately establish that the circumstances of the case are sufficiently unusual or extreme to justify the extraordinary privilege which results from the granting of a trial preference.
Accordingly, defendants' motion for summary judgment is granted to the extent that plaintiff's second, third, fourth, fifth and sixth causes of action are dismissed and is otherwise denied. Plaintiff's cross motion is denied in its entirety.