Defendant's cross motion to dismiss the claim is granted for claimant's failure to timely serve a notice of intention to file a claim.
|Claimant short name:||PILLA|
|Footnote (claimant name) :|
|Defendant(s):||THE CITY COLLEGE OF NEW YORK, CITY UNIVERSITY OF NEW YORK; and STATE UNIVERSITY OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Law Offices of Neal Brickman, P.C.
By: Ethan Leonard, Esq.
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Cheryl M. Rameau, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 19, 2019|
|See also (multicaptioned case)|
Claimant filed the instant claim on September 19, 2017 asserting several causes of action under the New York State Human Rights Law (NYSHRL) arising from defendants' allegedly improper denial of tenure to claimant.
Claimant, an individual of Italian descent, became an adjunct professor at the Bernard and Anne Spitzer School of Architecture (the "School") at the City College of New York (CCNY) in 2004. In 2010, claimant became a tenure-track associate professor at the School.
At the time of claimant's appointment to the associate professor position, the Dean of the School was George Renalli, an individual who like claimant, is of Italian descent. Renalli took administrative leave in April 2015 and Gordon Gebert became the interim Dean. Julio Salcedo-Fernandez became the Interim Chair of the Department previously headed by Gebert.
In November 2015, after allegedly receiving information that claimant was "conspiring" to bring Renalli back from administrative leave, Gebert stated that he would not support claimant's tenure and that claimant was in "big trouble" (Amended Claim ¶¶ 16-17). Claimant alleges that "Gebert clearly believed that the Italian-Americans were bound to stick together and was, from that point forward, determined to scuttle [claimant's] tenure possibilities solely because of his national origin and perceived affiliation with Renalli as a result thereof" (id. ¶ 17). Gebert did not make any statements about scuttling the tenure of non-Italian-Americans. Gebert then met with other faculty members and "purposely promoted the story that the Italian-Americans were sticking together and that [claimant] should not be granted tenure" (id. ¶ 18).
In May 2016, claimant submitted his application for tenure. On or about October 6, 2016, the Tenure Committee voted to deny claimant tenure. Claimant alleges that the Tenure Committee was "manipulated" by Gebert (Amended Claim ¶ 20). Claimant immediately filed an appeal with the Personnel and Budget Committee ("P&B Committee"). On October 24, 2016, the initial denial was remanded, as Gebert prematurely called a vote before discussion was complete, which was in violation of relevant rules. Claimant alleges that Gebert's action is another example of his bias against claimant. On November 3, 2016, claimant's application for tenure received a positive vote from the Tenure Committee. On November 9, 2016, the P&B Committee voted to deny claimant's reappointment and tenure. Claimant alleges that the P&B Committee violated applicable bylaws, as the bylaws state that there should be seven members in the committee, but the P&B Committee that voted to deny claimant tenure had eight members. Also, the P&B Committee members were assigned and not elected, in violation of the relevant bylaws. Claimant also alleges that Gebert improperly influenced members during the six day period between the Tenure Committee vote and the P&B Committee vote. Claimant alleges that he was eminently qualified for reappointment and tenure.
On November 14, 2016, claimant wrote to CCNY's Interim President, Vincent Boudreau, concerning the alleged procedural irregularities that had occurred during the consideration of claimant's tenure application. On November 18, 2016, Interim Provost Mary Erin Driscoll wrote to claimant and allowed him to submit additional material to the review committee, but did not address claimant's complaints about the alleged procedural irregularities during the tenure application process. On November 28, 2016, claimant submitted additional materials. On December 16, 2016, Driscoll wrote to claimant and informed him that the Review Committee voted to uphold the decision of the P&B Committee in denying claimant's tenure application. On December 17, 2016, claimant appealed the Review Committee's determination. On or about December 19, 2017, claimant was contacted by Paul F. Occhiogrosso, Esq., Executive Counsel to the President of CCNY, who acknowledged the submission of claimant's appeal and reiterated claimant's right to supplement his prior submissions. On or about January 16, 2017 and in February 2017, claimant wrote to Boudreau and provided additional materials in support of his tenure application. On March 9, 2017, CCNY offered to settle the instant dispute, but then withdrew its offer.
On March 15, 2017, claimant's counsel wrote to Occhiogrosso to ensure that all records relevant to claimant's tenure application were maintained. Five days later, Boudreau denied claimant's appeal. On March 21, 2017, claimant requested a "reasons for decision" (Verified Claim ¶ 47). Boudreau provided his "reasons for decision" to claimant on April 3, 2017.
Claimant's union filed a grievance on his behalf. On May 25, 2017, the Step One Grievance Hearing was held. Claimant served a notice of intention to file a claim on June 19, 2017.
LAW AND ANALYSIS
Defendant argues that the amended claim should be dismissed because it is untimely under the Court of Claims Act. In support of its motion, defendant argues that the claim accrued on November 9, 2016, the date the P&B Committee voted to deny claimant's reappointment and tenure after Gebert's alleged manipulation. Claimant argues that the correct accrual date for the claim is March 20, 2017, the date that Boudreau denied claimant's appeal of the final tenure decision.
In support of its position, defendant argues that claims for employment discrimination premised on a denial of tenure accrue the moment that a claimant is made aware that tenure has not been awarded, not upon the exhaustion of the administrative review process. A Court of Claims case cited by defendant acknowledges that determining the accrual date for an employment discrimination claim premised on an adverse employment decision "has . . . been difficult for . . . courts" (Syrkin v State of New York, UID No. 2006-030-524 [Ct Cl, Scuccimarra, J., Apr. 5, 2006]). "The proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful" (Abramson v Univ. of Hawaii, 594 F2d 202, 209 [2d Cir 1979]).
In Delaware State College v Ricks, 449 US 250, 258 , the Supreme Court determined that the correct accrual date for the plaintiff's employment discrimination claim was "at the time the tenure decision was made and communicated to [the plaintiff.]" However, in Ricks the Supreme Court did not decide whether the proper accrual date was the first date that the tenure committee voted to deny tenure, which was March 13, 1974, or the date that the plaintiff was offered a terminal one-year contract after he unsuccessfully grieved the tenure committee's decision, which was June 26, 1974, because the claim was untimely utilizing either date (Delaware State College v Ricks, supra, at 261-262 n 17). But the Court noted that, "[m]ere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination" (Delaware State College v Ricks, supra, at 257; see also Chardon v Fernandez, 454 US 6, 8 ). Moreover, the limitations period is not tolled while the employee pursues administrative remedies (Pinder v City of New York, 49 AD3d 280, 281 [1st Dept. 2008]).
Guided by the principles stated above, the Court finds that the accrual date is November 9, 2016, the date that the P&B Committee voted to deny claimant reappointment and tenure. Initially, claimant's application for tenure received a positive vote from the Tenure Commitee on November 3, 2016 (Amended Claim ¶ 23). But, on November 9, 2016, the P&B Committee, for allegedly discriminatory purposes, voted to deny claimant's tenure application (Amended Claim ¶ 24). It is clear from the allegations contained in the claim that November 9, 2016 was the date that the tenure decision was made and communicated to claimant (Delaware State College v Ricks, supra, at 258). The possibility that the Review Committee may have reversed the P&B Committee's vote does not extend the limitations period (Cordone v Wilens & Baker, P.C., 286 AD2d 597, 598 [1st Dept. 2001] [finding that the plaintiff's allegations that she was told that her employment was "up in the air" and was offered part-time employment did not extend the accrual date beyond the date that the plaintiff was informed of her termination]). Indeed, claimant refers to the Review Committee's decision not to overturn the P&B Committee's determination as a "foregone negative determination" (Amended Claim ¶ 36). Thus, the Court finds that November 9, 2016 is the proper accrual date for the claim (Nash v Bd. of Educ. of City of New York, US Dist Ct, SD NY, 99 Civ 9611, Buchwald, J., 2018 [finding that the plaintiff's claim under the NYSHRL accrued on the date that he "allegedly received a recommendation that his services as a teacher be discontinued"]).
Because the Court finds that the claim accrued on November 9, 2016, the Court must determine whether the notice of intention to file a claim that was served upon the Office of the Attorney General on June 19, 2017 is timely. Currently, there is a disagreement among courts as to whether a claim alleging violations under the NYSHRL are subject to a six-month limitations period under Court of Claims Act § 10 (4), or a 90-day limitations period under Court of Claims Act § 10 (3). The Third Department holds that the Court should apply a 90-day limitations period applicable to unintentional torts (Bhaglia v State of New York, 228 AD2d 882, 882 [3d Dept. 1996]; Brown v State of New York, 125 AD2d 750, 751-751 [2d Dept. 1986], appeal dismissed 70 NY2d 747 ). However, in Clauberg v State of New York, 19 Misc 3d 942, 948 [Ct Cl 2008], Judge Collins noted that the six-month limitations period should be applied, citing mounting Court of Appeals and Appellate Division precedent clearly holding that a cause of action under the NYSHRL is not a tort. The Court need not determine which limitations is proper, because the June 19, 2017 notice of intention to file a claim would be untimely utilizing either limitations period. The Court need not reach defendant's alternate grounds for dismissal, or claimant's motion to compel the production of documents and interrogatory responses.
To the extent that claimant seeks to make a late claim application, the Court notes that claimant did not make such a request upon motion nor did he address the statutory factors as required by Court of Claims Act § 10 (6). Accordingly, such request must be denied, without prejudice to renew.
Based upon the foregoing, it is hereby
ORDERED that defendant's cross motion to dismiss the claim (CM-92838) is GRANTED; and it is further
ORDERED that claimant's motion to compel (M-92588) is DENIED; and it is further
ORDERED that claim number 130280 is DISMISSED.
April 19, 2019
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion, dated July 18, 2018; and Affidavit in Support, sworn to by Ethan Leonard, Esq. on July 18, 2018, with Exhibits A through H annexed thereto.
2. Notice of Cross-Motion, dated September 11, 2018; and Affirmation in Support and in Opposition, affirmed by Cheryl M. Rameau, Esq., AAG on September 11, 2018, with Exhibits A through DD annexed thereto.
3. Affirmation in Support; in Opposition; and in Support of Alternative Relief, affirmed by Ethan Leonard, Esq. on October 15, 2018.
4. Reply Affirmation, affirmed by Cheryl M. Rameau, Esq., AAG on November 6, 2018, with Exhibit A annexed thereto.