Summary
permitting § 1981 and § 1983 claims seeking appointment to the position of distinguished professor and to CUNY graduate center to proceed
Summary of this case from Miles v. Baruch CollegeOpinion
01 CIV. 3019 (DLC).
November 13, 2001.
John Virdone Virdone Associates, Kew Gardens, NY., For Plaintiff.
Arlene R. Smoler Assistant Attorney General, New York, NY., For Defendants.
OPINION AND ORDER
On April 10, 2001, plaintiff Ravi Kulkarni ("Kulkarni") filed this action, alleging discrimination based on race and national origin in violation of his rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. ("Title VII"), 42 U.S.C. § 1981 ("Section 1981"), 42 U.S.C. § 1983 ("Section 1983"), as well as New York State Human Rights Law ("NYSHRL"). Kulkarni also brings claims of breach of contract, breach of the implied covenant of good faith and fair dealing, and fraudulent misrepresentation. Defendants move to dismiss the complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P. For the reasons stated below, their motion is granted in part.
BACKGROUND
The facts as alleged by plaintiff are as follows. Kulkarni is an Asian-American male of Indian birth. He is employed as a full professor of Mathematics at Queens College/City University of New York ("CUNY"). Kulkarni claims that CUNY has discriminated against him by refusing to promote him to a position of distinguished professor and by refusing to place him in a joint appointment with the CUNY Graduate Center.
Defendant CUNY is a public university affiliated with the City and State of New York. Defendant Matthew Goldstein ("Goldstein") is the Chancellor of CUNY, defendant Francis Degen Horowitz ("Horowitz") is the President of the CUNY Graduate Center, defendant Russell Hotzler ("Hotzler") is the President of Queens College/CUNY, and defendant Jozef Dodziuk ("Dodziuk") is the Executive Officer of the Ph.D. program in Mathematics at the CUNY Graduate Center.
Kulkarni was hired in 1986, as a full professor of Mathematics at Queens College with a simultaneous appointment to the CUNY Graduate Center. When he was hired, Kulkarni claims he was promised a position as a distinguished professor, and that he accepted the position as a full professor in reliance on that promise. In 1988, 1992, 1998, and 2000, Kulkarni applied for and was denied a distinguished professor position by defendants. Kulkarni asserts on information and belief that in 1988, 1992, and 1998, defendants promoted or appointed white individuals to distinguished professor positions who had less seniority and inferior qualifications.
In 2000, Kulkarni applied for and was denied the Mina Rees Chair in Mathematics, which is a distinguished professor position with a specific title. Kulkarni asserts that, while that position has not yet been filled, the defendants have restricted and continue to restrict their search to persons who are white.
Kulkarni asserts that he has requested a formal joint appointment with the CUNY Graduate Center since 1995, and alleges that, since 1995, the defendants have denied him such an appointment. According to Kulkarni, a formal joint appointment allows a professor to teach one third of the time at the local college and two thirds of the time at the Graduate Center. Since 1995, the defendants have authorized Graduate Center appointments to white individuals with less seniority and inferior qualifications. Kulkarni further asserts that since 1988, defendants have "hindered" him by denying him the "privileges and benefits of Graduate Center resources such as teaching Graduate Center courses, crediting independent studies courses to plaintiff and his students, and crediting plaintiff's supervision of doctoral dissertations."
Kulkarni asserts that defendants allocate $36 million each year for the Graduate Center doctoral faculty. Of this amount, $20 million is applied to Graduate Center courses and $16 million is applied to college based courses. Kulkarni claims that defendants' allocation of funds adversely affects Asian and Indian college based faculty in Ph.D. programs which have more than two Graduate Center courses.
Kulkarni filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on January 5, 2000. The EEOC issued a right to sue letter on January 18, 2001.
DISCUSSION
A court may dismiss an action pursuant to Rule 12(b)(6), Fed.R.Civ.P., only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which will entitle him to relief.'" Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In considering the motion, the court must take "as true the facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor." Jackson Nat'l Life Ins. v. Merrill Lynch Co., 32 F.3d 697, 699-700 (2d Cir. 1994). The court can dismiss the claim only if, assuming all facts alleged to be true, the plaintiff still fails to plead the basic elements of a cause of action.
Defendants argue that plaintiff's allegations of discrimination under Title VII are time-barred. Defendants also argue that plaintiff's allegations of discrimination under Sections 1981 and 1983, as well as his state law claims, are barred by the Eleventh Amendment. In his opposition to defendants' motion to dismiss, plaintiff states that he is suing the individual defendants in their official capacities, and that he is seeking only prospective injunctive relief against these defendants under Sections 1981 and 1983. Plaintiff does not oppose defendants' motion to dismiss his state law claims.
A. Title VII
Defendants first move to dismiss Kulkarni's Title VII claim against the individual defendants. Plaintiff apparently concedes that there is no individual liability under Title VII, Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000), but he asserts that the individual defendants may be sued under Title VII in their official capacities. In Tomka v. Seiler Corp., the Second Circuit held that "individual defendants with supervisory control over a plaintiff may not be held personally liable under Title VII," but did not decide whether a supervisory employee may be sued in his or her "official" capacity. Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). Cf. Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1241 n. 2 (2d Cir. 1995) (whether individual may be made a defendant for discovery purposes is undecided). While this issue remains undecided by the Second Circuit, for the reasons described by district courts in this circuit Title VII does not authorize a private right of action against a supervisory employee in his or her official capacity. See, e.g., Cooper v. Morganthau, No. 99 Civ. 11946 (WHP), 2001 WL 868003, at *4 (S.D.N.Y. July 31, 2001) (collecting cases); Bonner v. Guccione, 916 F. Supp. 271, 279 (S.D.N.Y. 1996) (DLC). Consequently, plaintiff's Title VII claim against defendants Goldstein, Horowitz, Hotzler, and Dodziuk is dismissed.
Defendants also move to dismiss the Title VII claim against CUNY on the ground that the claim is time-barred. To claim a violation of Title VII in New York, a complaint must be filed with the EEOC within 300 days of the alleged discriminatory act. See 42 U.S.C. § 2000e-5(e); Flaherty v. Metromail Corp., 235 F.3d 133, 136 n. 1 (2d Cir. 2000). The 300-day period effectively acts as a statute of limitations. Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998). For purposes of the statute of limitations, a claim of employment discrimination accrues "on the date the employee learns of the employer's discriminatory conduct."Flaherty, 235 F.3d at 137.
The continuing violation exception "extends the limitations period for all claims of discriminatory acts committed under an ongoing policy of discrimination." Quinn, 159 F.3d at 765. That is, if a plaintiff files a charge of discrimination that is timely as to any incident forming part of an ongoing discriminatory policy, his claims of other discriminatory acts under that policy are timely even if, standing alone, they would be untimely. Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001) (citing Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993)),petition for cert. filed, 70 U.S.L.W. 3163 (U.S. Aug. 29, 2001) (No. 01-373).
The continuing violation doctrine exception generally "applies to cases involving specific discriminatory policies or mechanisms," such as discriminatory seniority lists, Lambert, 10 F.3d at 53, or employment tests, Alleyne v. Four Seasons Hotel-New York, No. 99 Civ. 3432 (JGK), 2001 WL 135770, at *7 (S.D.N Y Feb. 15, 2001). A continuing violation may also exist in the face of "specific and related instances of discrimination" where those instances are "related closely enough," "sufficiently repetitious," and "`permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice.'" Fitzgerald, 251 F.3d at 359, 362 (citation omitted). The exception will not apply, however, where those acts are "so `isolated in time from each other or from the timely allegations as to break the asserted continuum of discrimination.'" Id. at 359 (citation omitted). Acts that are "completed" or "discrete," such as termination, discontinuance of a particular assignment, or job transfers, Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997), or repeated failures to promote, Meckenberg v. New York City Off-Track Betting, 42 F. Supp.2d 359, 371-72 (S.D.N.Y. 1999), are not acts of a continuing nature. See Pauling v. Secretary of the Interior, 960 F. Supp. 793, 801-02 (S.D.N.Y. 1997) (DLC).
Kulkarni points to a three-part test developed by the Fifth Circuit and used by some other courts in analyzing the continuing violation doctrine. These decisions pre-date the Second Circuit decision inFitzgerald, which articulates a standard that does not specifically adopt the Fifth Circuit test.
To allege a continuing violation, "the claimant must allege both the existence of an ongoing policy of discrimination and some non-time-barred acts taken in furtherance of that policy." Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999). A claim cannot be rendered timely by "the mere continuation of the claimant's employment" nor where the plaintiff "continues to feel the effects of a time-barred discriminatory act." Id.
Distinguished Professor
Kulkarni's Title VII claim is based on his complaint that he was denied promotions to the position of distinguished professor in 1988, 1992, 1998, and 2000. As discussed above, Kulkarni filed a complaint with the EEOC and the New York Commission on Human Rights on January 5, 2000. Consequently, absent an exception, those events alleged to have occurred prior to March 1, 1999, are time-barred under Title VII. Kulkarni's 1988 and 1992 applications are therefore time-barred.
Since Kulkarni admits that he was informed in January 1999 that his 1998 application had been denied, the Title VII claim based on the 1998 application is also time-barred. Kulkarni argues, however, that he was not "certain of CUNY's absolute denial of [his] distinguished professorship" until he received a letter dated August 18, 1999, from CUNY's Acting Legal Counsel rejecting his complaints regarding the January decision. "It has long been settled that a claim of employment discrimination accrues for statute of limitations purposes on the date the employee learns of the employer's discriminatory conduct." Flaherty, 235 F.3d at 137. As the Supreme Court reaffirmed in Delaware State Coll. v. Ricks, 449 U.S. 250 (1980), "the pendency of a grievance, or some other method of collateral review of an employment decision, does not toll the running of the limitations period." Id. at 261.
Nor was the 300-day limitations period tolled by the doctrine of equitable estoppel. Kulkarni contends that by agreeing to meet with him in September 1999 "in order to settle Kulkarni's matter with the University," the defendants caused him to delay filing his EEOC claim. By the same token, however, Kulkarni admits that it was he who wrote several letters to CUNY about his non-appointment to the distinguished professor position, and that he informed CUNY of his wish "to settle these matters." Kulkarni's case is therefore not one in which "the defendant assures the plaintiff that he intends to settle and the plaintiff, in reasonable reliance on that assurance, delays in bringing his suit until after the statute [of limitations] has run." Cerbone v. International Ladies' Garment Workers Union, 768 F.2d 45, 50 (2d Cir. 1985). See also Wall v. Construction Gen. Laborers' Union, Local 230, 224 F.3d 168, 176 (2d Cir. 2000).
The only specific events alleged to have occurred after March 1, 1999, are Kulkarni's 2000 applications for promotion to the position of distinguished professor and for appointment to the Mina Rees Chair in Mathematics. Kulkarni applied for both of these promotions after he filed his EEOC charge. Thus, neither of these claims were alleged in his EEOC charge. A district court can hear claims for employment discrimination under Title VII only after a plaintiff has exhausted his administrative remedies. Butts v. City of New York Dept. of Hous., 990 F.2d 1397, 1401 (2d Cir. 1993). The Court only has jurisdiction to hear Title VII claims that either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is "reasonably related" to that alleged in the EEOC charge. Id. Because the allegations in Kulkarni's EEOC charge are time-barred, however, they "cannot serve as predicates for allegations in the complaint said to be reasonably related to them."Id. at 1403.
Nor are the alleged repeated failures to promote continuing violations under Title VII. As discussed above, failures to promote are "discrete acts" which do not give rise to a continuing violation. Moreover, while Kulkarni has alleged the CUNY has a discriminatory policy of failing to promote qualified Asian professors, he has not alleged any non-time-barred acts in furtherance of this policy. See Harris, 186 F.3d at 250. Kulkarni's attempts to escape this well-established law are unsuccessful. Accordingly, Kulkarni's Title VII claim against CUNY for a failure to promote him to the position of distinguished professor must be dismissed.
Formal Joint Appointment
Kulkarni also alleges that he has been requesting a formal joint appointment with the CUNY Graduate Center since 1995. In his EEOC Charge, Kulkarni states that the "last act of discrimination" took place in August 1999, when CUNY turned down his appeal for reconsideration of a position as a distinguished professor and formal joint appointment. As discussed above, the internal appeal of an employment decision does not toll the limitations period. See Ricks, 449 U.S. at 261. Without more specificity in Kulkarni's allegations about when he applied and was rejected for a formal joint appointment, this part of Kulkarni's Title VII claim also must be dismissed. See Butts, 990 F.2d at 1403.
Plaintiff does not oppose defendants' motion to dismiss his punitive damages claim under Title VII.
C. Eleventh Amendment
The defendants contend that the Eleventh Amendment bars plaintiffs from obtaining relief against them for violations of Sections 1981 and 1983. While the Eleventh Amendment by its terms does not bar suits against a State by its own citizens, the Supreme Court has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State. See Kimel v. Florida Board of Regents, 528 U.S. 62, 73 (2000); Burnette v. Carothers, 192 F.3d 52, 57 (2d Cir. 1999) (citing Edelman v. Jordan, 415 U.S. 651, 662-63 (1974)). The immunity extends to state agencies and to state officers who act on behalf of the State. Puerto Rico Aqueduct Sewer Auth. v. Metcalf Eddy, Inc., 506 U.S. 139, 145 (1993). An important exception to this general rule is set forth in Ex Parte Young, 209 U.S. 123 (1908), which holds that the Eleventh Amendment does not bar suits seeking prospective relief against state officials acting in violation of federal law because such action is not considered an action of the State. Burnette, 192 F.3d at 57 n. 3.
As an initial matter, the defendants argue that CUNY and its schools are state agencies for Eleventh Amendment purposes. To determine whether CUNY can properly be characterized as an "arm of the state," courts must analyze "the extent to which the state would be responsible for satisfying any judgment that might be entered against the defendant entity," and "the degree of supervision exercised by the state over the defendant entity." Pikulin v. City Univ. of New York, 176 F.3d 598, 600 (2d Cir. 1999). Since the Second Circuit's decision in Pikulin, district courts in this circuit have found that CUNY and its senior colleges are state agencies for Eleventh Amendment purposes. See Bunch v. City Univ. of New York Queens Coll., No. 98 Civ. 1172 (AKH), 2000 WL 1457078, at *2 (S.D.N.Y. Sept. 28, 2000); Salerno v. City Univ. of New York, No. 99 Civ. 11151 (NRB), 2000 WL 1277324, at *3 (S.D.N.Y. Sept. 8, 2000).
It is uncontested that both CUNY Queens College and the CUNY Graduate Center are considered "senior colleges" under the Education Law. N.Y. Educ. Law. § 6202(5).
While the plaintiff does not dispute that CUNY is a state agency, he argues that he can maintain his federal claims against it for declaratory and injunctive relief. In the absence of consent, however, any claims against the State or one of its agencies or departments are "proscribed by the Eleventh Amendment." Dube v. State Univ. of New York, 900 F.2d 587, 594 (2d Cir. 1990) (quoting Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 100 (1984)). "This bar exists whether the relief sought is legal or equitable." Id. (quoting Papasan v. Allain, 478 U.S. 265, 276 (1986)). See also Loren v. Levy, No. 00 Civ. 7687 (DC), 2001 WL 921173, at *4 (S.D.N.Y. Aug. 14, 2001). Thus, plaintiff's claims against CUNY under Sections 1981 and 1983 must be dismissed.
To the extent plaintiff relies on Minetos v. City Univ. of New York, 875 F. Supp. 1046, 1054 (S.D.N.Y. 1995), to support an action for equitable relief against CUNY, this Court declines to follow Minetos.
In contrast, Kulkarni's federal claims seeking injunctive relief against state officers acting in their official capacities are not barred by the Eleventh Amendment. Dube, 900 F.2d at 595. Plaintiff seeks to (1) compel the defendants to appoint him to the position of distinguished professor within the Mathematics Department, (2) compel the defendants to give him a formal joint appointment with the CUNY Graduate Center, and (3) permanently enjoin the defendants from committing any of the discriminatory practices described in the complaint against him or others in his class.
As noted above, plaintiff has abandoned his claims for damages against the CUNY officials.
The defendants argue that Kulkarni's demand for injunctive relief against the individual defendants must also be dismissed because the relief he seeks can only be provided by CUNY. Although the Eleventh Amendment generally bars suits against state officials when "the state is the real, substantial party in interest," regardless of whether a party seeks damages or injunctive relief, Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984), the doctrine described in Ex Parte Young provides an exception to this rule. Id. at 102-03. "[T]he Eleventh Amendment does not bar suits seeking prospective relief against state officials acting in violation of federal law because such action is not considered an action of the state." Burnette, 192 F.3d at 57 n. 3 (citingEx Parte Young, 209 U.S. 123). See also Loren v. Levy, 2001 WL 921173, at *5 (claim against CUNY officials for reinstatement); Chinn v. City Univ. of New York Sch. of Law, 963 F. Supp. 218, 225 (E.D.N.Y. 1997) (same). Defendants' motion to dismiss plaintiff's Section 1981 and 1983 claims for prospective injunctive relief against the individual defendants is denied.
Defendants' reliance on Cincotta v. New York City Human Resources Admin., No. 00 Civ. 9064 (JGK), 2001 WL 897176 (S.D.N.Y. July 31, 2001), is misplaced. Cincotta acknowledges that the plaintiff could bring a suit for "prospective injunctive" relief against state officials acting in their official capacity, id. at *8, but found that the plaintiff had not identified any official who had a direct involvement in the alleged illegal action, id. at *9 n. 7.
To the extent defendants argue that plaintiff's claims against the individual defendants must be dismissed because all of them were not in their present positions at the time of the alleged past discrimination, that argument is without merit. The defendants do not dispute that the positions which the individual defendants now hold have a direct connection to the selection of a distinguished professor in Mathematics. Based on that connection, the plaintiff may maintain his claims against them for injunctive relief. See Loren v. Levy, 2001 WL 921173, at *5.
Plaintiff's claim for declaratory relief against these officials must be dismissed to the extent he seeks a declaration that they have discriminated against him in the past. The Eleventh Amendment bars retrospective declaratory relief against state officials. Green v. Mansour, 474 U.S. 64, 74 (1985); Ward v. Thomas, 207 F.3d 114, 120 (2d Cir. 2000).
CONCLUSION
For the reasons stated, defendants' motion to dismiss is granted with respect to plaintiff's Title VII claim against all defendants, Sections 1981 and 1983 claims against CUNY, Sections 1981 and 1983 claims for damages against the individual defendants, and state law claims against all defendants. The plaintiff may proceed on his Sections 1981 and 1983 claims for injunctive relief brought against the individual defendants in their official capacity.
SO ORDERED: