Risley v. Fordham University

Full title: MICHAEL S. RISLEY, Plaintiff, v. FORDHAM UNIVERSITY, Defendant

Court: United States District Court, S.D. New York

Date published: Feb 13, 2001

99 CIV. 9304 (DLC) (S.D.N.Y. Feb. 13, 2001)

Opinion

99 CIV. 9304 (DLC)

February 13, 2001

Linda Gail Bartlett, Bartlett Bartlett LLP, for Plaintiff.

James E. McGrath, III, Putney, Twombly, Hall Hirson LLP, for Defendant.

OPINION and ORDER

DENISE COTE, District Judge.

In his amended complaint Michael Risley ("Risley"), a tenured professor, complains of retaliation by Fordham University ("Fordham"), in violation of 42 U.S.C. § 2000e et seq. ("Title VII") and parallel state and local laws, for complaints he has made against the chair of his department ("Chair"). Risley brought a lawsuit in state court in May 1998, based on substantially the same facts and allegations presented in this suit. While the state court action was pending he filed a complaint with the Equal Employment Opportunity Commission ("EEOC") and, in August 1999, filed this federal action. Discovery having been completed, Fordham now moves to dismiss this action for lack of subject matter jurisdiction and alternatively asks for summary judgment.

BACKGROUND

The following facts are undisputed unless noted. Risley, a male, was hired by Fordham in 1987. In 1989, Fordham hired the Chair, also a male, who became the head of the plaintiff's Department of Biological Sciences. The Chair brought with him to Fordham one of his students, a female, who obtained her doctorate from Fordham in 1994, and who has been and currently is the Chair's laboratory manager ("Lab Manager")

Almost since the Chair's arrival at Fordham, he and Risley have had a strained relationship. The relationship turned extremely bitter in February 1995, however, after Risley objected to the Lab Manager having taught a molecular biology course in the fall of 1994. In April 1995, Risley filed a grievance with the Faculty Senate Hearing Committee ("Committee") to complain about a number of different actions taken by the Chair, including what he alleged was a malicious campaign of harassment in order to force Risley's resignation. In August 1995, the Committee denied the grievance. Through his attorneys, in February 1996, Risley submitted a petition for a formal hearing before the Committee to hear various allegations against the Chair. The Committee denied the petition in March 1996. In late 1996 and early 1997, Risley and an investigator hired by his attorneys conducted surveillance of the Chair and Lab Manager to procure evidence of an intimate relationship.

Risley made his first allegation of discrimination through a February 3, 1998 letter his attorney sent to Fordham ("February 3, 1998 Letter"). In that letter, Risley asserted that the Chair had begun harassing him after Risley had opposed the appointment of the Lab Manager to a teaching position, that the Chair "was then and continues to conduct an intimate relationship with" the Lab Manager and that, "because [the Chair's] conduct against Dr. Risley is primarily based upon Dr. Risley's opposition to [the Lab Manager's] appointment, the harassment constitutes sex discrimination and has created a hostile work environment." The February 3, 1998 Letter additionally threatened that Risley would bring a lawsuit in which he was prepared to prove these claims. Fordham advised Risley's attorneys that it would not investigate whether the Chair and his Lab Manager were engaged in a sexual relationship.

State Court Action

On May 27, 1998, Risley sued Fordham and the Chair in Supreme Court, New York County, claiming breach of contract, tortious interference with contract, intentional infliction of emotional distress, prima facie tort, and breach of fiduciary duty, among other violations. Risley described the appointment of the Lab Manager to teach a course as a breach of the Chair's fiduciary duty to Risley "by deceiving Risley and others as to [the Chair's] true intent when [the Chair] effected the hiring to the position of Adjunct Professor a person under qualified [sic] to teach the course in question but with whom [the Chair] had a romantic liaison going back to the time that person was a Fordham student, a circumstance that [the Chair] did not disclose when he made his hiring decision." Risley claimed that he had been harmed in a variety of ways, including being denied access to equipment and facilities necessary for his research, being given extra teaching assignments, being impeded from obtaining research grants, and being denied merit increases in salary. Risley sought an injunction and compensatory and punitive damages.

On January 22, 1999, Risley signed an affidavit in opposition to the defendants' motion for summary judgment in the state court action. According to Risley, the various acts of retaliation which he described in his lawsuit all arose from his opposition to the Chair's appointment of the Lab Manager to teach the molecular biology class. His affidavit also represented, "[u]pon information and belief," that the two individuals "were, at that time they came to Fordham, and continue to be, intimately involved. Upon information and belief, [the Chair] often spent the night at [the Lab Manager's] home instead of with his wife and family."

On August 27, 1999, Justice Beverly Cohen, Supreme Court, New York County, granted the defendants' motion for summary judgment and dismissed the complaint in its entirety ("August 27, 1999 Opinion"). The August 27, 1999 Opinion described Risley's allegations as including a chain of events that began with his opposition to the Chair appointing the Lab Manager to teach molecular biology. It further described the alleged retaliation as including increases in his teaching load, denial of merit increases, denial of opportunities for promotion, damage to his reputation in the scientific and academic communities, and interference with his ability to conduct research, publish articles and secure grants. On May 18, 2000, the New York State Supreme Court, Appellate Division, First Department, affirmed the August 27, 1999 Opinion ("May 18, 2000 Opinion"). Plaintiff moved for re-argument or, in the alternative, for leave to appeal the May 18, 2000 Opinion to the New York Court of Appeals, and his motion was denied on October 5, 2000. Plaintiff petitioned the Court of Appeals for leave to appeal, which was denied on January 9, 2001.

EEOC Complaint

On November 30, 1998, ten days after the defendants in the state court action filed their motion for summary judgment, Risley filed a complaint with the EEOC alleging that he was the victim of sex discrimination and retaliation. In the affidavit he filed with the EEOC complaint, Risley recites his opposition to the Chair's appointment of the Lab Manager to teach the course in molecular biology and the ensuing campaign of retaliation against him by the Chair. He explained that he eventually "learned" that the Chair and the Lab Manager "were having an intimate relationship" and stated his belief that the Chair's "retaliation against me over this prolonged period can only be explained as having its roots in [that] sexual relationship." Risley described the same course of events and harms that were contained in his state court complaint. The only protected activity identified to the EEOC was the February 3, 1998 Letter. The EEOC issued a right to sue letter on July 14, 1999.

Federal Court Litigation

In this action, filed August 30, 1999 — approximately six weeks after receiving his right to sue letter and three days after the state court action was dismissed — Risley principally brought claims for employment discrimination and retaliation based on federal, state, and local laws. On November 30, 1999, after a conference with the Court, Risley filed an amended complaint pleading solely claims of retaliation and intentional infliction of emotional distress. Risley's retaliation claims, brought under federal, state, and local laws, are based on two incidents of alleged protected activity: the February 3, 1998 Letter and the EEOC complaint. Risley seeks redress for a campaign of harassment, burdensome teaching assignments, interference with his research, loss of merit based pay increases, malicious complaints against him, loss of funding for "indirect costs," efforts to compel him to relinquish his proprietary rights in his research, interference with his ability to conduct research and to publish, interference with his relationships with his students, and disparagement, among other things, that he asserts were in retaliation for the February 3, 1998 Letter and the EEOC complaint. Risley also charges that defendant's conduct constitutes an intentional infliction of emotional distress.

DISCUSSION

A. The Bar Arising from the State Court Action

Relying on three related doctrines, Fordham seeks dismissal of this entire lawsuit on account of the prior state court action. Fordham argues that the Rooker-Feldman doctrine deprives this Court of subject matter jurisdiction since the claims asserted here are intertwined with Risley's state court claims and the plaintiff is in essence seeking review of the dismissal of his state court lawsuit. Fordham also contends that this action is barred by the doctrine of res judicata since Risley was aware of the alleged retaliation that forms the basis for this lawsuit well before he filed his state court lawsuit and could have included his Title VII claims in that litigation either by filing an EEOC complaint earlier than he did or by asking for a stay until his right to sue letter had been issued. Finally, Fordham argues that the doctrine of collateral estoppel bars relitigation of each of the issues decided against Risley in the state court action.

The Rooker-Feldman doctrine prevents lower federal courts from reviewing a claim that would result in a reversal or modification of a state court judgment since only the United States Supreme Court may review such judgments. See Hachamovitch v. DeBuono, 159 F.3d 687, 693 (2d Cir. 1998). The doctrine has been described as one that bars jurisdiction over claims that are "inextricably intertwined" with a state court determination. See, e.g., id, at 694; Pennzoil Co. v. Texaco, 481 U.S. 1, 25 (1987) (Marshall, J., concurring). There is confusion over both the contours of the doctrine and even the continued vitality of this judicially crafted limitation where there is a federal statutory grant of jurisdiction. See Hachamovitch, 159 F.3d at 696. Nonetheless, it appears that, at a minimum, the Rooker-Feldman doctrine deprives lower federal courts of subject matter jurisdiction over litigation that is barred by the doctrines of res judicata and collateral estoppel. See id.; Doctor's Associates, Inc. v. Distajo, 107 F.3d 126, 137-38 (2d Cir. 1997); Moccio v. New York State Officer of the Court Administrator, 95 F.3d 195, 198-200 (2d Cir. 1994).

Under the Full Faith and Credit Act, "judicial proceedings of any court of any State . . . shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . . from which they are taken." 28 U.S.C. § 1738. Consequently, this Court must afford the proceedings brought by Risley in New York State's courts the same preclusive effect they would be given by the New York state courts.Conopco, Inc. v. Roll Int'l and Paramount Farms, Inc., 231 F.3d 82, 87 (2d Cir. 2000). Under New York law, the doctrine of res judicata or claim preclusion bars future litigation of claims that were or could have been raised in a prior proceeding where that prior proceeding resulted in a final judgment on the merits. Maharaj v. Bankamerica Corp., 128 F.3d 94, 97 (2d Cir. 1997) (New York law); Marinelli Assocs. v. Helmsley-Noyes Co., Inc., 705 N.Y.S.2d 571, 574 (1st Dept. 2000). Even claims based upon a different legal theory are barred, provided that they arose from the same transaction. See Ferris v. Cuevas, 118 F.3d 122, 126 (2d Cir. 1997) (New York law). See also O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357 (1981) Marinelli Assocs., 705 N.Y.S.2d at 574. The focus of the state court action filed by Risley was the retaliation undertaken by the Chair and Fordham for Risley's opposition to the appointment of the Lab Manager to a teaching position at Fordham. Risley complained essentially of the same retaliatory acts for which he seeks compensation here: the increase in his teaching load; impediments to his ability to conduct research, to write articles, and to secure grants; denial of merit increases in his salary; denial of promotions; and harm to his reputation in the scientific and academic communities. While Risley did not plead employment discrimination in the state court action, the claims alleged in that litigation and this litigation arose from a common nucleus of operative facts, to wit, the retaliatory acts that Risley believes the Chair and Fordham have taken against him. As a consequence, the claims that Risley has brought through his federal suit to recover for adverse employment actions occurring before the filing of the state lawsuit are barred.

Risley points out that he could not have brought a Title VII claim at the time that he filed his state lawsuit since he had not yet filed an EEOC complaint or received a right to sue letter. As an initial matter, this objection does not address Risley's claims for employment discrimination based on state and local law, which could have been included in his state lawsuit without administrative exhaustion. See, e.g., Alimo v. Off-Track Betting Corp., 685 N.Y.S.2d 180 (1st Dept. 1999). In addition, Title VII claims may be prosecuted in state as well as federal court. Id. The timing of the filing of an EEOC complaint was entirely under Risley's control, and does not protect from preclusion those claims that he could have administratively exhausted before filing the state court action. Cf. Marinelli Assocs., 705 N.Y.S.2d at 576 (applying doctrine of res judicata to claims of which a party had notice but had failed to place before an arbitrator). Even with a late filing of an EEOC complaint, Risley could have asked for a stay of the state court litigation until the right to sue letter had issued. See CPLR § 2201. Risley cannot engineer the filing of the EEOC complaint to defeat the policies underlying the doctrine of res judicata and to give himself a second chance to prevail on different legal theories arising from the same nucleus of operative facts.

This conclusion is consistent with the federal doctrine of res judicata. For example, in Woods v. Dunlop Tire Corp., 972 F.2d 36 (2d Cir. 1992), the Second Circuit applied the federal doctrine of res judicata to preclude a Title VII claim challenging the plaintiff's dismissal from employment since it involved the same transaction at issue in a Labor Management Relations Act ("LMRA") lawsuit the plaintiff had previously filed in federal court. Id. at 38-39. The Second Circuit noted that "the language and policy of Title VII do not undercut the application of res judicata." Id. at 39. Even though the plaintiff "was forced to bring her LMRA suit prior to the completion of the [Title VII] administrative proceedings or else abandon that claim because the six-month statute of limitations on the LMRA claim was about to expire,"id. at 41, the Court nonetheless applied the doctrine of res judicata to bar the Title VII suit. It noted that the plaintiff could have followed either of two courses "to avoid the sting of res judicata." Id. She could have filed her LMRA suit and sought a stay pending the outcome of the Title VII administrative proceedings or she could have sought a right to sue notice from the EEOC after 180 days and amended the complaint in the LMRA suit to add the Title VII claim. Id. Risley has not explained why he did not follow either of these courses of action.

Risley cites two cases in support of his claim that Woods does not control here, though neither case assists Risley. In Devlin v. Transportation Communications Int'l, 175 F.3d 121 (2d Cir. 1999), the Second Circuit distinguished Woods on the facts. In Devlin, the second litigation had been filed and accepted as a related case before the same federal judge with whom the first litigation was then pending. Although the Second Circuit noted that the plaintiff in Devlin should nonetheless have pleaded the employment discrimination claim in the first action, given the "fortuitous circumstance" that both cases were on the active docket of the same judge at the same time and could have been consolidated by the court sua sponte, the Second Circuit refused to apply the doctrine of res judicata to bar the discrimination claims pleaded in the second action. Id. at 129-30. In Bracey v. Safir, 1999 WL 672564 (S.D.N.Y. Aug. 26, 1999), the court refused to apply the doctrine of res judicata or the Rooker-Feldman doctrine to bar a Title VII action that followed an Article 78 proceeding filed by the plaintiff before he had received a right to sue letter. The court relied in part on the fact that money damages are not generally available in Article 78 proceedings. Id. at *3.

The doctrine of res judicata will not bar, however, claims based on any adverse employment actions that have occurred since the filing of the state court action.

[I]f, after the first suit is underway, a defendant engages in actionable conduct, plaintiff may — but is not required to — file a supplemental pleading setting forth defendant's subsequent conduct. Plaintiff's failure to supplement the pleadings of his already commenced lawsuit will not result in a res judicata bar when he alleges defendant's later conduct as a cause of action in a second suit.

Maharaj v. Bankamerica Corp., 128 F.3d 94, 97 (2d Cir. 1997) (citingCohen v. Board of Educ. of East Rampao Central Sch. Dist., 443 N.Y.S.2d 170 (2d Dept. 1981)). See also Booke v. Joy, 434 N.Y.S.2d 243, 244 (1st Dept. 1981). In particular, Risley asserts that Fordham reduced his indirect research costs in 1999 and 2000, increased his teaching load in 1999, and entertained frivolous complaints against him in 1999. Risley asserts that these actions were taken in retaliation for the filing of his EEOC complaint in November 1998, among other reasons. The defendant has not shown that these actions — which occurred after the filing of the state court action — were or could have been litigated in the state court action. Plaintiff's retaliation claims are, therefore, precluded to the extent that they concern events that occurred before May 27, 1998, the date the state court action was filed.¹

1 Given the ruling on res judicata grounds, it is unnecessary to reach defendant's argument that plaintiff's claims are time-barred or plaintiff's argument that defendant's acts constitute a "continuing violation." It is also unnecessary to address whether Risley's recent arguments to the New York Court of Appeals confirm that he intended to litigate the same issues in state court that he is litigating here. Finally, it is unnecessary to address Fordham's arguments regarding collateral estoppel, which bars relitigation of issues actually litigated and decided in a prior proceeding, because it will not bar the litigation here of the claims not barred by the doctrine of res judicata.

B. Retaliation Claims

Defendant additionally seeks summary judgment on plaintiff's retaliation claims. Summary judgment may not be granted unless the submissions of the parties, taken together, "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The substantive law governing the case will identify those issues that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1987). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the Court must view all facts in the light most favorable to the nonmoving party.See Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir. 1994). When the moving party has asserted facts showing that the nonmovant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of his pleadings. Rule 56(e), Fed.R.Civ.P. See also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). In deciding whether to grant summary judgment, this Court must, therefore, determine (1) whether a genuine factual dispute exists based on the evidence in the record and (2) whether the facts in dispute are material based on the substantive law at issue.

To state a claim of retaliation, an employee must show: "(1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action." Wimmer v. Suffolk County Police Dept., 176 F.3d 125, 134 (2d Cir. 1999) (internal quotation omitted) Fordham argues that Risley's claims for retaliation suffer from numerous defects. With one exception, each of alleged defects implicates questions of material fact which must be decided by a jury. Only the issue of the existence of protected activity can be resolved as a matter of law.

To prove that he engaged in a protected activity, Risley must show that he opposed a practice engaged in by his employer and that he had a "good faith, reasonable belief that the underlying challenged actions of the employer violated the law." Wimmer, 176 F.3d at 134 (quotation omitted). Plaintiff's amended complaint identifies one act of discrimination, two instances of protected activity, and a campaign of retaliation. The alleged act of discrimination was the appointment of the Lab Manager instead of the plaintiff to teach the molecular biology course "because of her sex and her sexual relationship with" the Chair. The two instances of protected activity are identified as the February 3, 1998 Letter and the November 30, 1998 EEOC complaint.

The assertions in the February 3, 1998 Letter do not constitute protected activity. There is no assertion in that letter that Risley had sought or even wished to teach the molecular biology course, or that the assignment of the Lab Manager to teach the course was made on account of gender. In context, the letter asserts that the Lab Manager's appointment over "more qualified professors" was due to her "intimate relationship" with the Chair. The only discriminatory treatment of which Risley complains relates to a theory of discrimination that he is not pursuing in this action, to wit, that the Chair's retaliation against him for his opposition to the Lab Manager's teaching appointment constituted the creation of a hostile work environment. The pertinent passage in the February 3, 1998 Letter reads as follows:

At trial, Dr. Risley is prepared to prove that [a] pattern of harassment and illegal dealings began when Dr. Risley opposed the appointment of [the Lab Manager] to a teaching position with the department. [The Lab Manager] was [the Chair's] technician at another institution and [the Chair] brought her to Fordham to work as his assistant. Subsequently, [the Chair] recommended and ultimately appointed [the Lab Manager] to a faculty position over more qualified professors. Dr. Risley is further prepared to prove that [the Chair] was then and continues to conduct an intimate relationship with [the Lab Manager].

Thus, because [the Chair's] conduct against Dr. Risley is primarily based upon Dr. Risley's opposition to [the Lab Manager's] appointment, the harassment constitutes sex discrimination and has created a hostile work environment.

In contrast, the EEOC complaint at least offers a theory under which the Lab Manager's appointment to teach the molecular biology course was discriminatory. Risley's EEOC Complaint adds an allegation that he had offered to teach the molecular biology course and that the Lab Manager was given the assignment "in [his] stead." The EEOC complaint, however, again attributes the appointment, as well as the Chair's reaction to Risley's opposition to the appointment, to the Chair's "sexual relationship" with the Lab Manager.

Preferential treatment on the basis of an intimate relationship does not constitute sex discrimination. DeCintio v. Westchester County Medical Center, 807 F.2d 304, 308 (2d Cir. 1986); Sullivan-Weaver v. New York Power Auth., 114 F. Supp.2d 240, 242 (S.D.N.Y. 2000). While it may have been reasonable to believe that such an allegation could constitute discrimination prior to the Second Circuit's decision in DeCintio, it was no longer reasonable to believe so over ten years later. When Risley composed the February 3, 1998 Letter and the EEOC complaint, it was clear that the conduct was not subject to redress under the statutes making gender discrimination in the workplace unlawful. Sullivan-Weaver, 114 F. Supp. 2d at 243. Because Risley filed the February 3, 1998 Letter (as well as the EEOC complaint) with the assistance of an attorney, plaintiff's assertion that this allegation — of preferential treatment for a romantic partner — constitutes unlawful conduct is even less reasonable. Cf. Barcher v. New York Univ. Sch. of Law, 993 F. Supp. 177, 185 (S.D.N.Y. 1998) (lawyer who engages in protected activity is held to a higher standard of reasonableness than a layperson).

In his memorandum in opposition to the motion for summary judgment, the plaintiff reiterates his belief that the Lab Manager was given the teaching assignment on account of her intimate relationship with the Chair. To circumvent the impact of DeCintio, he argues that an intimate relationship can be actionable if it was the product of coercion and that he did not know whether "coercion could be involved" in the relationship. This post facto speculation is insufficient to save the retaliation claims. Risley points to nothing in the record, and certainly nothing in either the February 3, 1998 Letter or EEOC complaint to suggest that he was protesting coercive conduct by the Chair or anything other than a consensual relationship.

Because the February 3, 1998 Letter and the EEOC complaint do not allege conduct that is unlawful, or that could reasonably and in good faith be considered unlawful, they do not constitute protected activity. Defendant's motion for summary judgment on plaintiff's retaliation claims is granted.

C. Intentional Infliction of Emotional Distress

Plaintiff has raised no issue of fact to preclude entry of summary judgment against him on his claim for intentional infliction of emotional distress. The elements of the cause of action are: "(1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress." Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999). Defendants have only been found liable for the intentional infliction of emotional distress when "the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Id. (internal quotation omitted).

Plaintiff has, as a matter of law, provided insufficient evidence of extreme and outrageous conduct by Fordham. Moreover, the same claim was dismissed by the New York State Supreme Court on the grounds that plaintiff's allegations, "even if provable, do not rise to such a level as to be actionable," and the Appellate Division's May 18, 2000 Opinion affirmed this dismissal. Accordingly, defendant's motion for summary judgment on plaintiff's claim of intentional infliction of emotional distress is granted.

CONCLUSION

Defendant's motion for summary judgment is granted in its entirety.² The Clerk of Court shall close this case.

2 Because summary judgment is granted on the merits, it is unnecessary to address defendant's election of remedies argument.

SO ORDERED: